/raid1/www/Hosts/bankrupt/CAR_Public/081212.mbx
C L A S S A C T I O N R E P O R T E R
Friday, December 12, 2008, Vol. 10, No. 247
Headlines
AMERICAN BUSINESS: Faces TCPA Violations Suit Over Fax Adverts
APPLE INC: Seeks Dismissal of N.Y. Suit Over iPhone 3G Problems
ASSOCIATED ESTATES: No Ruling Yet on Motions in Suredeposit Suit
BROOKS AUTOMATION: $7.75M Suit Settlement Gets Final Approval
CASH STORE: Receives Court Approval to Settles Ontario Lawsuit
CLAYTON HOMES: Ark. Court Gives Preliminary OK to Suit Agreement
CONOCOPHILLIPS: Faces Suit Over Failure to Pay Retention Bonuses
CRYSTALLEX INT'L: Faces Securities Fraud Litigation in New York
D.R. HORTON: Appeal v. RESPA Violations Suit Dismissal Pending
D.R. HORTON: Still Defends Calif. Home Buyers' Deception Lawsuit
LENOX GROUP: Jan. 23 Hearing Set for FACTA Violations Suit Deal
NOVASTAR FINANCIAL: Reaches $7.25M Securities Suit Settlement
NOVASTAR FINANCIAL: Stull Stull Files ERISA Violations Lawsuit
RAYMOND JAMES: Faces Suit Alleging Securities Law Violations
SPRINT NEXTEL: Kansas Court Certifies Class in Employees' Suit
STERLING CHEMICALS: Continues to Defend "Evans" Lawsuit in Texas
UNITED COMPONENTS: Bid for Class Suit Permit Pending in Ontario
UNITED COMPONENTS: Bid for Class Suit Permit Pending in Quebec
VELOCITY EXPRESS: Still Defends Independent Contractors' Suits
YAHOO INC: Revises Severance Plan to Settle Shareholders' Suit
New Securities Fraud Cases
GENERAL GROWTH: Glancy Binkow Files Securities Lawsuit in Ill.
MEDTRONIC INC: Bernstein Litowitz Files Securities Suit in Minn.
SADIA S.A.: Cohen Milstein Announces N.Y. Securities Suit Filing
UBS FINANCIAL: Zwerling Schachter Files Securities Suit in N.Y.
Asbestos Alerts
ASBESTOS LITIGATION: Deadline for RUSA, C2S Penalties Scheduled
ASBESTOS LITIGATION: U.K. Campaigners Cite Medical Breakthrough
ASBESTOS LITIGATION: Pensioner Gets GBP250T Over Wife's Exposure
ASBESTOS LITIGATION: Robinson Case v. U.S. Steel Filed in Texas
ASBESTOS LITIGATION: Fire Service Criticized for Ignoring Hazard
ASBESTOS LITIGATION: Split Ruling Issued in Cooney & Conway Case
ASBESTOS LITIGATION: 50 Cases Pending Against Met-Pro at Oct. 31
ASBESTOS LITIGATION: Injury Actions Still Ongoing Against Scotts
ASBESTOS LITIGATION: 5 New Claims filed in Ill. From Nov. 24-29
ASBESTOS LITIGATION: Old Ind. Hospital Tagged as Health Hazard
ASBESTOS LITIGATION: Cleanup Costs Delay Ramada Inn's Demolition
ASBESTOS LITIGATION: Cleanup in "Big Tex" Site to Cost $500,000
ASBESTOS LITIGATION: Specialty Contractors Pays $30T for Breach
ASBESTOS LITIGATION: Wigan Widow Supports HSE Warnings on Hazard
ASBESTOS LITIGATION: Autopsy Waived for Seattle Asbestos Victim
ASBESTOS LITIGATION: Regulations "Delay" Angers Aussie Victims
ASBESTOS LITIGATION: Mueller Water Units Still Have Injury Cases
ASBESTOS LITIGATION: BJ Services Still Facing Lawsuits in Miss.
ASBESTOS LITIGATION: Trial in Ham's Injury Suit Set for July 27
ASBESTOS LITIGATION: Whitchurch Local's Death Linked to Exposure
ASBESTOS LITIGATION: Remand Motions OK'd in Case, Brown Actions
ASBESTOS LITIGATION: Miss. Court OK's Remand Bid in Martin Case
ASBESTOS LITIGATION: Summary Judgment Upheld in Ericsson's Favor
ASBESTOS LITIGATION: Appeal to Craig Suit Ruling Vacated in Nov.
ASBESTOS LITIGATION: Lois Robinson's Case Filed v. 33 Companies
ASBESTOS LITIGATION: GBP35,000 Penalty Issued to Dean, Director
ASBESTOS LITIGATION: Woolworths Fined GBP40T for Safety Breaches
ASBESTOS LITIGATION: Hardie Director Upholds Stand in ASIC Case
ASBESTOS LITIGATION: Florida Tech Fined $10T for Safety Breaches
ASBESTOS LITIGATION: Hazard Found in N.Z.'s Muriwai Beach Dunes
ASBESTOS LITIGATION: Bethlehem Site Hazard Cleanup to Cost $7.4M
ASBESTOS LITIGATION: Hazard Found During Auckland Fire Aftermath
ASBESTOS LITIGATION: Awareness Center Fights Asbestos Initiative
ASBESTOS LITIGATION: Asbestos Found at Bedroc Bldg. in Lyndhurst
ASBESTOS LITIGATION: No Signs of Harmful Exposure at Fort Bragg
ASBESTOS LITIGATION: Supreme Court Moves Richards Case to Maine
ASBESTOS LITIGATION: Whittingham Hospital Guards Fear Exposure
ASBESTOS LITIGATION: York Benefit Raises GBP2,570 for Victims
ASBESTOS LITIGATION: Solihull Engineer's Death Linked to Hazard
ASBESTOS LITIGATION: Split Rulings Issued in Bondex Int'l. Case
ASBESTOS ALERT: $15T Penalty Imposed on Willamette, Hoviss Build
*********
AMERICAN BUSINESS: Faces TCPA Violations Suit Over Fax Adverts
--------------------------------------------------------------
American Business Lending, and Christopher Parks are facing a
purported class-action lawsuit in Madison County Circuit Court
alleging that defendants violated the federal Telephone Consumer
Protection Act when they sent advertisements over fax machines,
Kelly Holleran of Madison County Record report.
The suit was filed on Dec. 3, 2008 by Locklear Electric, which
is represented by Lanny Darr, Esq. of Schrempf, Kelly, Napp and
Darr in Alton.
It claims that defendants' "unsolicited fax advertisements
constitutes an unlawful taking of plaintiff's fax paper, toner
ink and electricity, as well as an unauthorized use of
plaintiffs' fax machines."
According to the suit, the aggregate of the class claims are
less than $5 million and no class member's claim exceeds
$75,000.
The complaint states that the plaintiffs are entitled to receive
damages of $500 for each violation or triple damages if the fax
advertisements were transmitted willfully.
Locklear Electric claims that the defendants willfully sent the
advertisements and is subject to liability for an injunction to
be granted to prohibit and prevent future violations.
The company is seeking all damages specifically alleged in its
complaint, plus attorneys' fees, costs. It is also seeking an
order enjoining defendants from transmitting any further
unsolicited advertisements by fax.
APPLE INC: Seeks Dismissal of N.Y. Suit Over iPhone 3G Problems
---------------------------------------------------------------
Apple, Inc. and AT&T, Inc. are seeking for the dismissal of the
purported class-action suit, "Koschitzki v. Apple Inc. et al.,
Case No. 1:2008-cv-04451," claiming allegations about iPhone 3G
problems don't belong in a federal court and should be moved
into an arbitration hearing, Judy Mottl of InternetNews.com
reports.
In their court filings, both Apple and AT&T disputed the suit's
charges that they misrepresented the device's performance on
AT&T's 3G network and said the case ought to be taken up outside
of court.
Both companies said doing so would comply with AT&T's user
agreement, which stipulates that handset complaints would be
handled in an arbitration process. AT&T added in court
documents that its arbitration process has been cited by at
least one legal expert as excessively generous and open,
according to InternetNews.com.
Previously, the AppleInsider reported that Apple, Inc. is facing
a purported class-action lawsuit over the performance of its
iPhone 3G on AT&T, Inc.'s network, but with added allegations
that the company is ignoring the occurrence of hairline cracks
in the handset's enclosure (Class Action Reporter, Nov. 18,
2008).
The 23-page lawsuit was filed on Nov. 3, 2008 in the U.S.
District Court for the Eastern District Court of New York by
Nassau County resident Avi Koschitzki. Aside from Apple, it
also names AT&T as a defendant.
According to Mr. Koschitzki's complaint, "Based upon information
and belief the 3G iPhones demand too much power from the 3G
bandwidths and the AT&T infrastructure is insufficient to handle
this overwhelming 3G signal based on the high volume of 3G
iPhones it and Apple have sold."
It claims that due to the overloaded 3G network, it is quite
common for iPhone users to only be on the 3G network for a few
minutes before being bumped to the slower EDGE network despite
being in geographical areas allegedly rich with 3G network
coverage.
Mr. Koschitzki also claims that he is among several customers
who've noticed hairline cracks form in the iPhone 3G's casing at
or around the camera module, and adds that some customers have
noticed similar cracks immediately upon opening their new
iPhones' boxes for the first time, according to The
AppleInsider.
The complaint states, "Although Apple was and is aware that the
iPhones were and are defective, and that consumers have
experienced repeated instances of cracked housing, Apple has
nevertheless allowed the defectively designed iPhones to be sold
to the public."
The AppleInsider reports that Mr. Koschitzki, who is seeking
class-action status on his suit, is also unhappy with the
handful of iPhone Software updates released to date. He says
they've failed to address a number of outstanding issues with
the phone, ranging from third-party application crashes at
launch to poor 3G reception.
The suit is "Koschitzki v. Apple Inc. et al., Case No. 1:2008-
cv-04451," filed in the U.S. District Court for the Eastern
District Court of New York, Judge Jack B. Weinstein, presiding.
Representing the plaintiffs are:
Joshua Farkas, Esq.
Stein Farkas & Schwartz LLP
1639 East 13th Street
Brooklyn, NY 11229
Phone: 718-645-5600
- and -
Mark S. Reich, Esq. (msr@rigrodskylong.com)
Coghlin, Stoia, Geller, Rudman, and Robbins
58 South Service Road
Suite 200
Melville, NY 11747
Phone: 302-295-5310
Fax: 302-654-7530
Representing the defendants are:
Jamie A. Levitt, Esq. (JLevitt@mofo.com)
Morrison & Foerster, LLP
1290 Avenue of the Americas
New York, NY 10104
Phone: 212-468-8000
Fax: 212-468-7900
- and -
Steven David Greenblatt, Esq.
(sgreenblatt@crowell.com)
Crowell & Moring LLP
153 E 53rd St
New York, NY 10022
Phone: 212-223-4000
Fax: 212-895-4201
ASSOCIATED ESTATES: No Ruling Yet on Motions in Suredeposit Suit
----------------------------------------------------------------
The Franklin County, Ohio Court of Common Pleas has yet to rule
on a motion for summary judgment filed by Associated Estates
Realty Corp. in connection with a lawsuit over its Suredeposit
program.
On or about April 14, 2002, Melanie and Kyle Kopp commenced the
suit against the company, seeking undetermined damages,
injunctive relief and class action certification. This case
arose out of the company's Suredeposit program.
The Suredeposit program allows cash short prospective residents
to purchase a bond in lieu of paying a security deposit. The
bond serves as a fund to pay those resident obligations that
would otherwise have been funded by the security deposit.
The plaintiffs allege that the non-refundable premium paid for
the bond is a disguised form of security deposit, which is
otherwise required to be refundable in accordance with Ohio's
Landlord-Tenant Act.
They further allege that certain pet deposits and other
nonrefundable deposits required by the company are similarly
security deposits that must be refundable in accordance with
Ohio's Landlord-Tenant Act.
On or about Jan. 15, 2004, the plaintiffs filed a motion for
class certification. The company also subsequently filed a
motion for summary judgment. Both motions are pending before
the court.
The company reported no further development in the matter in its
Current Report on Form 8-K filed with the U.S. Securities and
Exchange Commission on Nov. 25, 2008.
Associated Estates Realty Corp. -- http://www.aecrealty.com/--
is an integrated multifamily real estate company engaged in
property acquisition, advisory, development, management,
disposition, operation and ownership activities.
BROOKS AUTOMATION: $7.75M Suit Settlement Gets Final Approval
-------------------------------------------------------------
The U.S. District Court for the District of Massachusetts, on
Oct. 3, 2008, granted final approval of the $7.75-million
settlement in the class action lawsuit filed against Brooks
Automation, Inc., in connection with the company's historical
stock option granting practices and related accounting.
The original complaint, filed in June 2006, alleges that
defendants Brooks Automation and certain of its officers and
directors violated Sections 10(b) and 20(a) of the U.S.
Securities Exchange Act of 1934 and Sections 11, 12 and 15 of
the Securities Act of 1933 by publicly issuing a series of false
and misleading statements regarding the company's business and
financial results, thus causing Brooks' shares to trade at
artificially inflated prices.
The court granted in part and denied in part the defendants'
motions to dismiss, and allowed the lead plaintiff's motion to
add a named plaintiff.
In particular, the Section 10(b) and Rule 10b-5 claims against
individual defendants Joseph Martin and Ellen Richstone were
dismissed, and the Section 11 claims against Mr. Martin and
defendants Robert Woodbury and Edward Grady were dismissed.
Also, the Section 11 claims against PricewaterhouseCoopers LLP
were dismissed, and therefore dismissed entirely.
The dismissal motions were denied as to the remaining claims in
the consolidated amended complaint.
On Jan. 22, 2008, the plaintiffs in the action filed a motion
for class certification for the matter, which is captioned
"James R. Shaw v. Brooks Automation, Inc. et al." and is pending
with the U.S. District Court for the District of Massachusetts.
In June 2008, Brooks Automation reached a settlement in the
consolidated securities class action.
The terms of the recent settlement, which include no admission
of liability or wrong doing by Brooks, provide for a full and
complete release of all claims in the litigation and a payment
of $7.75 million into a settlement fund, pending final
documentation and approval by the Court of a plan of
distribution. There will be no earnings or cash effect of this
settlement as the $7.75 million will be paid by the company's
liability insurers.
Once approved, the settlement will provide a full release of
Brooks and the other named defendants in connection with the
allegations raised in the class action, and it will resolve all
class action litigation pending against the company and against
its present and former officers and directors.
The fairness hearing will be held before the Honorable Rya W.
Zobel of the United States District Court for the District of
Massachusetts at Courtroom 12 of the John Joseph Moakley Federal
Courthouse, 1 Courthouse Way, in Boston, Massachusetts, at 2:30
p.m., on Oct. 2, 2008, to determine whether:
(i) the proposed settlement should be approved by the Court
as fair, reasonable, and adequate,
(ii) the Plan of Allocation should be approved, and
(iii) the claims against the defendants should be dismissed
with prejudice.
At the hearing, the Court will also consider comments concerning
Lead Counsel's application for an award of attorneys' fees and
reimbursement of expenses. If approved, the settlement would
end this litigation in its entirety (Class Action Reporter, July
31, 2008).
As of Sept. 30, 2008, the Company recorded a receivable from its
liability insurers of $8.8 million within current assets on its
audited consolidated balance sheets which includes the
settlement fund obligation of $7.75 million and a reimbursement
of professional fees of $1.0 million.
On Oct. 3, 2008, the court entered orders granting the parties'
motion for settlement and closed the case, according to the
company's Nov. 26, 2008 Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
Sept. 30, 2008.
The suit is "James R. Shaw v. Brooks Automation, Inc., et al.,"
filed in the U.S. District Court for the District of
Massachusetts, Judge Rya W. Zobel presiding.
Representing the plaintiffs are:
Peter A. Pease, Esq. (ppease@bermanesq.com)
Berman DeValerio Pease Tabacco Burt & Pucillo
One Liberty Square, 8th Floor
Boston, MA 02109
Phone: 617-542-8300
Fax: 617-542-1194
- and -
Daniel P. Chiplock, Esq. (dchiplock@lchb.com)
Lieff Cabraser Heimann & Bernstein, LLP
780 Third Avenue, 48th Floor
New York, NY 10017
Phone: 212-355-9500
Fax: 212-355-9592
Representing the defendants are:
Randall W. Bodner, Esq. (rbodner@ropesgray.com)
Ropes & Gray LLP
One International Place
Boston, MA 02110
Phone: 617-951-7000 x7776
Fax: 617-951-7050
- and -
Joseph P. Messina, Esq. (jpmessina@mintz.com)
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC
One Financial Center
Boston, MA 02111
Phone: 617-542-6000
Fax: 617-542-2241
CASH STORE: Receives Court Approval to Settles Ontario Lawsuit
--------------------------------------------------------------
The Cash Store Financial Services has received court approval to
settle a class-action lawsuit over its allegedly excessive
charges for payday loans, The Canadian Press reports.
According to the Edmonton-based financial company, which
operates more than 410 branches across Canada, the 2004 lawsuit
filed in Ontario concerns brokerage fees and interest charged to
customers of The Cash Store and Instaloans.
Under terms of the settlement, the company will set up funds of
CDN1.5 million in cash and $1.5 million in credit vouchers for
customers outside of Alberta and British Columbia, reports The
Canadian Press,
Some of the cash will be used to make payments to customers
outside of those two provinces who obtained and repaid a payday
loan in full.
The Canadian Press reported that the credit vouchers, which will
have no expiry date, could be used to pay future or existing
outstanding brokerage fees on payday loans brokered by The Cash
Store or Instaloans.
CLAYTON HOMES: Ark. Court Gives Preliminary OK to Suit Agreement
----------------------------------------------------------------
The Miller County Circuit Court has given preliminary approval
to a purported class-action lawsuit against Clayton Homes, Inc.
and CMH Homes Inc. over charges for wheels and axles of
manufactured homes Michelle Massey of the Southeast Texas Record
reports.
The Nov. 25, 2008 settlement provides for class members to
receive a voucher to recover wheels and axles from the
defendant, or a discount purchase voucher for a new manufactured
home, or a credit for the purchase of an extended warranty and
service contract.
According to the Southeast Texas Record, a final settlement
approval hearing is scheduled to be held on April 15, 2009 at
9:00 a.m., in the Miller County Courthouse, Texarkana, Arkansas.
Previously, Michelle Massey of the Southeast Texas Record
reported that a Texarkana attorney Matt Keil, Esq., of the Keil
and Goodson law firm filed the original class complaint on Feb
17, 2005, accusing defendants of charging for the manufactured
homes' wheels and axles but never disclosing the charge to the
purchaser (Class Action Reporter, May 28, 2008).
Ms. Massey recounts that the charge for the wheels and axles
"appears nowhere on any of the documents the plaintiffs are
asked to sign during the purchase of the home."
Furthermore, the defendants were accused of then taking the
wheels and axles and reselling them to an outside company and
retaining the profits of the sales.
The lawsuit is seeking a total of $2,200 for each class member,
$1,200 for the wheels and axles that they were unknowingly
charged and $1,000 for the resale value.
Clayton Homes -- http://www.clayton.net/-- and its subsidiaries
make up a vertically integrated manufactured housing company
with 32 manufacturing plants, 392 company-owned stores, more
than 1,400 independent retailers, 83 manufactured housing
communities and subdivisions, and financial services operations
that provide mortgage services for more than 400,000 customers
and insurance protection for 135,000 families.
CONOCOPHILLIPS: Faces Suit Over Failure to Pay Retention Bonuses
----------------------------------------------------------------
ConocoPhillips is facing a purported class-action lawsuit in
Madison County Circuit Court, alleging that it failed to pay
retention bonuses promised to its employees, Kelly Holleran of
The Madison County Record reports.
The suit was filed on Dec. 4, 2008 by James P. Erlandson who is
represented by Bradley M. Lakin, Robert W. Schmieder and Mark L.
Brown of The Lakin Law Firm.
Mr. Erlandson alleges that ConocoPhillips failed to pay him a
retention bonus after he left the company for "good reason."
According to the suit, "Defendants also promised that if prior
to the payment date 'you resign from the Company and its
affiliates for Good Reason, you shall be paid the Retention
Bonus within 10 days following the date of such termination of
employment."
Mr. Erlandson claims he left the company after discovering
through a letter that his target bonus opportunity percentage
would be 10 percent when it used to be 30 percent of his annual
salary.
The suit states that good reason as stated in the retention
letter included "any reduction in your target bonus opportunity
percentage from your target bonus opportunity percentage in
effect on the date hereof."
A target bonus opportunity was a specific percentage of an
employee's salary set by an employee's job grade level,
according to the complaint.
The suit states that ConocoPhillips offered the retention
bonuses after it announced plans to acquire Burlington Resources
in 2005.
Mr. Erlandson claims he resigned on Aug. 2, 2006, however, on
Sept. 12, 2006, ConocoPhillips refused to pay him the retention
bonus.
The class included in the complaint are all former employees of
Burlington Resources who accepted the retention letter and who
resigned before March 31, 2007.
The suit states that ConocoPhillips breached its contract
because it failed to pay the retention bonuses to Mr. Erlandson
and class members, and thus he is asking that the case be
classified as a class-action lawsuit. Mr. Erlandson is also
seeking unspecified damages, costs, attorneys' fees and other
relief the court deems just.
CRYSTALLEX INT'L: Faces Securities Fraud Litigation in New York
---------------------------------------------------------------
Crystallex International Corp. and two of its former chief
executives are facing a purported class action lawsuit in New
York that focuses on allegedly improper comments the company
made about potential approval for its Las Cristinas gold
project, Peter Koven of the Financial Post reports.
On Dec. 8, 2008, the law firm of Sarraf Gentile LLP commenced a
securities fraud class-action suit on behalf of those investors
who acquired the securities of Crystallex International Corp
during the period July 28, 2005 to April 30, 2008, inclusive
(Class Action Reported. Dec. 10, 2008).
The suit is pending in the U.S. District Court for the Southern
District of New York and names as defendants Crystallex and
certain of its former officers.
According to the complaint, the defendants made several
statements during the Class Period about the Company's Las
Cristinas Gold Project located in Sifontes, Venezuela, and that
the issuance of the required Venezuelan government permit in
connection with that project was imminent.
The complaint alleges, however, that during the Class Period
defendants did not have a reasonable expectation that the
Company would receive the required permit and that on April 30,
2008, the permit was, in fact, denied.
On news that the permit was denied, the complaint alleges, the
Company's stock fell roughly from a closing price of $1.68 on
April 29, 2008, to a closing price of $0.91 on April 30, 2008,
on heavy volume.
For more information, contact:
Joseph Gentile, Esq.
Sarraf Gentile LLP
11 Hanover Square
New York, NY 10005
Phone: 212-868-3610
Fax: 212-918-7967
Web site: http://www.sarrafgentile.com/
D.R. HORTON: Appeal v. RESPA Violations Suit Dismissal Pending
--------------------------------------------------------------
The plaintiff's appeal from the U.S. District Court for the
Southern District of Georgia's decision to dismiss a purported
class-action lawsuit, entitled "Yeatman et al. v. D.R. Horton,
Inc., et al., Case No. 4:07-cv-00081-BAE-GRS," is pending.
The litigation was filed against D.R. Horton, Inc., alleging
violations of the Real Estate Settlement Procedures Act.
The suit, commenced by John R. Yeatman on June 15, 2007, also
names as defendant D.R. Horton's mortgage company – DHI Mortgage
Co. Mr. Yeatman, who claims that he was forced to use the
company's affiliated mortgage service to buy his home so that
the company could get discounts and incentives, is seeking
class-action status for his suit.
The complaint specifically seeks certification of a class
alleged to include persons who, within the year preceding the
filing of the suit, purchased a home from the company and
obtained a mortgage for such purchase from the affiliated
mortgage company subsidiary.
It alleges that the company violated Section 8 of the Real
Estate Settlement Procedures Act by effectively requiring its
homebuyers to use its affiliated mortgage company to finance
their home purchases by offering certain discounts and
incentives. The action seeks damages in an unspecified amount
and injunctive relief.
On April 23, 2008, the Court granted the company's request and
dismissed the complaint with prejudice. The plaintiff filed a
notice of appeal, according to the company's Nov. 26, 2008 Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended Sept. 30, 2008.
The suit is "Yeatman, et al. v. D.R. Horton, Inc., et al., Case
No. 4:07-cv-00081-BAE-GRS," filed in the U.S. District Court,
Southern District of Georgia, Judge B. Avant Edenfield,
presiding.
Representing the plaintiff is:
Thomas A. Withers, Esq. (TWithers@gcpwlaw.com)
Gillen, Cromwell, Parker & Withers, LLC
P.O. Box 10164
Savannah, GA 31412
Phone: 912-447-8400
Fax: 912-233-6584
Representing the defendants is:
David M. Souders, Esq.
Weiner, Brodsky, Sidman & Kider, PC
1300 19th Street, NW, Fifth Floor
Washington, DC 20036
Phone: 202-628-2000
Fax: 202-628-2011
D.R. HORTON: Still Defends Calif. Home Buyers' Deception Lawsuit
----------------------------------------------------------------
D.R. Horton and Western Pacific Housing continue to face a
purported class-action suit in California that accuses them of
of illegally forcing or deceiving homebuyers into financing
their houses through DHI Mortgage Co., at uncompetitive prices,
according to the company's Nov. 26, 2008 Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Sept. 30, 2008.
On March 24, 2008, a putative class-action suit, entitled "James
Wilson, et al. v. D.R. Horton, Inc., et al.," was filed by five
customers of Western Pacific Housing, Inc. -- one of the
company's wholly owned subsidiaries -- against the company,
Western Pacific Housing and the company's affiliated mortgage
company subsidiary, in the U.S. District Court for the Southern
District of California.
The complaint seeks certification of a class alleged to include
persons who, within the four years preceding the filing of the
suit, purchased a home from the company, or any of its
subsidiaries, and obtained a mortgage for such purchase from the
company's affiliated mortgage company subsidiary.
The suit alleges that the company violated Section 1 of the
Sherman Antitrust Act and Sections 16720, 17200 and 17500 of the
California Business and Professions Code by effectively
requiring its homebuyers to apply for a loan through its
affiliated mortgage company.
It also alleges that the homebuyers were either deceived about
loan costs charged by the company's affiliated mortgage company
or coerced into using its affiliated mortgage company, or both,
and that discounts and incentives offered by the company or its
subsidiaries to buyers who obtained financing from its
affiliated mortgage company were illusory.
The action seeks treble damages in an unspecified amount and
injunctive relief.
According to the Aug. 22, 2008 edition of The Class Action
Reporter, the plaintiffs request:
-- disgorgement and restitution to plaintiffs and all
class members;
-- actual damages and treble damages to plaintiffs and
all class members;
-- attorneys' fees and the costs of suit incurred;
-- prejudgment interest as allowed by law; and
-- equitable and injunctive relief.
The suit is "James Wilson, et al. v. D.R. Horton, Inc., et al.,
Case No: 08 CV 592 BEN RBB," filed in the U.S. District Court
for the Southern District of California.
Representing the plaintiffs is:
Norman B. Blumenthal, Esq. (norm@bamlawlj.com)
Blumenthal & Nordrehaug
2255 Calle Clara
La Jolla, CA 92037
Phone: 858-551-1223
Fax: 858-551-1232
Representing the defendants is:
John T. Brooks, Esq. (jtbrooks@luce.com)
Luce Forward Hamilton and Scripps
600 West Broadway, Suite 2600
San Diego, CA 92101-3372
Phone: 619-236-1414
Fax: 619-232-8311
LENOX GROUP: Jan. 23 Hearing Set for FACTA Violations Suit Deal
---------------------------------------------------------------
A hearing has been scheduled on Jan. 23, 2009, to consider
whether the settlement of the purported class-action lawsuit
against Lenox Group, Inc., alleging violations of the Fair and
Accurate Credit Transactions Act should be given final approval
by the U.S. District Court for the Eastern District of
Pennsylvania.
On April 12, 2007, Amanda Curiale filed a purported class-action
complaint in the U.S. District Court for the Eastern District of
Pennsylvania, alleging that the company willfully violated FACTA
by continuing to print more than the last five digits of the
credit card number and the expiration date on receipts provided
to debit card and credit cardholders transacting business with
the company.
Similar complaints have later been filed against a large number
of retailers.
Ms. Curiale seeks, on behalf of herself and the class, statutory
damages of not less than $100 and not more than $1,000 for each
violation, as well as unspecified punitive damages, costs and
attorneys' fees and a permanent injunction from further engaging
in violations of FACTA.
On Sept. 20, 2007, the parties held an all-day meditation
session and reached a tentative settlement which is subject to
court approval.
Under the terms of the settlement, Lenox denies all claims as to
liability, damages, penalties, interest, fees, restitution and
all other forms of relief sought in the FACTA Litigation.
Pursuant to the terms of the proposed settlement, the company
will pay approximately $128 for attorney's fees and costs, a
charitable contribution and a plaintiff's incentive fee, and
will provide participating claimants with a coupon off a future
purchase or a free product through company-operated retail
stores.
In return, the company and its affiliates will be completely
released from any and all claims, demands and actions concerning
the FACTA Litigation and any claims that could have been alleged
in the FACTA litigation.
As a result of the Credit and Debit Card Receipt Clarification
Act of 2007 enacted on June 3, 2008, the company is seeking a
dismissal of the action with prejudice (Class Action Reporter,
Sept. 4, 2008).
On Nov. 14, 2008, the Court issued a Memorandum & Order
preliminarily approving the class action settlement agreement of
the parties and preliminarily certifying the FACTA Litigation as
a class action, according to the company's Nov. 28, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Sept. 27, 2008.
The suit is "Curiale v. Lenox Group, Inc. et al., Case No. 2:07-
cv-01432-RBS," filed in the U.S. District Court for the Eastern
District of Pennsylvania, Judge R. Barclay Surrick, presiding.
Representing the plaintiffs are:
Edward W. Ciolko, Esq.
Schiffin Barroway Topaz & Kessler, LLP
280 King Of Prussia Road
Radnor, PA 19087
Phone: 610-667-7706
- and -
Gary F. Lynch, Esq. (glynch@carlsonlynch.com)
Carlson Lynch, Ltd.
36 N. Jefferson Street
P.O. BOX 7635
New Castle, PA 16107
Phone: 724-656-1555
Fax: 724-656-1556
Representing the defendant is:
Wilson M. Brown, III, Esq. (wilson.brown@dbr.com)
Drinker Biddle And Reath L.L.P.
One Logan Square
18th And Cherry Streets,
Philadelphia, PA 19103
Phone: 215-988-2700
NOVASTAR FINANCIAL: Reaches $7.25M Securities Suit Settlement
-------------------------------------------------------------
NovaStar Financial Inc. has agreed to pay $7.25 million to
settle a consolidated securities fraud class-action lawsuit
against NovaStar Financial, Inc., entitled, "In Re: Novastar
Financial Securities Litigation, Case No. 4:04-cv-00330-ODS,"
the Kansas City Business Journal reports.
The settlement agreement, filed on Dec. 8, 2008 in U.S. District
Court for the Western District of Missouri, includes no
admission of wrongdoing by Kansas City-based NovaStar, according
to the Kansas City Business Journal.
Since April 2004, a number of substantially similar securities
class action complaint were filed against the company and three
of its executive officers (Class Action Reporter, June 19,
2008).
On Aug. 23, 2004, Judge Ortrie D. Smith issued an order
consolidating all related cases into one class action as, "In re
NovaStar Financial Securities Litigation," and appointed lead
plaintiffs and co-lead counsel. The lead plaintiffs filed their
consolidated class action complaint on Nov. 12, 2004.
The consolidated complaint generally alleged that the defendants
made public statements that were misleading or failed to
disclose certain regulatory and licensing matters.
The complaint names as defendants:
-- the company;
-- Lance W. Anderson, president, and chief operating
officer;
-- Michael L. Bamburg, senior vice president and chief
investment officer;
-- Scott Hartman, chairman of the board and chief executive
officer; and
-- Rodney E. Schwatken, vice president, secretary,
treasurer, and controller.
The plaintiffs purported to bring the consolidated action on
behalf of all persons who purchased the company's common stock
and sellers of put options on the company's common stock during
the period Oct. 29, 2003, through April 8, 2004.
According to the complaint, NovaStar fostered an aggressive-
growth culture throughout the class period. NovaStar touted its
rapid growth in earnings, production, and its securities
portfolio and highlighted the increasing number of NovaStar-
affiliated branch offices.
The suit notes that in 2003, the company had reported that it
had doubled the number of branch offices in operation and that
its earnings had more than doubled in 2003 to $112 million.
The suit is "In Re: Novastar Financial Securities Litigation,
Case No. 4:04-cv-00330-ODS," filed with the U.S. District Court
for the Western District of Missouri, Judge Ortrie D. Smith,
presiding.
Representing the plaintiffs are:
Bruce D. Bernstein, Esq.
Michael B. Eisenkraft, Esq.
Milberg, Weiss Bershad & Schulman, LLP
One Pennsylvania Plaza, 49th Floor
New York, NY 10119
Phone: 212-594-5300
James M. Evangelista, Esq.
(jevangelista@chitwoodlaw.com)
Chitwood Harley Harnes, LLP
1230 Peachtree St., N.E., Suite 2300
Atlanta, GA 30309
Phone: 404-607-6871
Fax: 404-876-4476
-- and --
William W. Wickersham, Esq.
Entwitle & Cappucci, LLP
299 Park Avenue, 14th Floor
New York, NY 10171
Phone: 212-894-7200
Representing the defendants are:
Erin Bansal, Esq. (ebansal@orrick.com)
William F. Alderman, Esq. (walderman@orrick.com)
Orrick, Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA 94105
Phone: 415-773-5700
Fax: 415-773-5759
NOVASTAR FINANCIAL: Stull Stull Files ERISA Violations Lawsuit
--------------------------------------------------------------
NEW YORK, Dec. 10, 2008 -- Stull, Stull & Brody and Gainey
& McKenna announced today that they filed a Class Action
Complaint for Violations of the Employee Retirement Income
Security Act (the "Complaint") against NovaStar Financial, Inc.
("NovaStar" or the "Company") (Pink Sheets:NOVS) and certain
individuals who are believed to have been fiduciaries of the
NovaStar Financial, Inc. 401(k) Plan (the "Plan") during the
period May 4, 2006 through November 15, 2007, inclusive (the
"Class Period").
The Complaint alleges that Defendants allowed the imprudent
investment of the Plan's assets in NovaStar common stock
throughout the Class Period despite the fact that they knew or
should have known that such investment was unduly risky and
imprudent due to the Company's serious mismanagement and
improper business practices.
The Complaint further alleges that the Plan's fiduciaries
also failed to disclose information about NovaStar to the Plan's
participants in violation of ERISA.
Novastar has filed a motion to dismiss which argues, among
other things, that the Plaintiff lacks standing to sue.
Plaintiff has opposed this motion and the motion is presently
awaiting decision by the Court.
In addition, on December 1, 2008 the Court issued an Order
scheduling further proceedings in this case, including a
deadline of June 17, 2009 for the completion of discovery and
the setting of the case for trial by jury commencing on December
7, 2009.
For more details, contact:
Tzivia Brody, Esq.
Stull, Stull & Brody
6 East 45th Street
New York, NY 10017
Phone: 1-800-337-4983
Fax: 212/490-2022
e-mail: SSBNY@aol.com
RAYMOND JAMES: Faces Suit Alleging Securities Law Violations
------------------------------------------------------------
Raymond James Financial, Inc. is facing a class-action lawsuit
alleging various securities law violations, according to the
company's Nov. 26, 2008 Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
Sept. 30, 2008.
The company's broker dealers, Raymond James & Associates, Inc.
(RJA) and Raymond James Financial Services, Inc. (RJFS) have
been subject to ongoing investigations by the SEC, the New York
Attorney General's Office and Florida's Office of Financial
Regulation
RJA and RJFS are cooperating fully with the investigations in
connection with auction rate securities.
The Company is named in a class action similar to that filed
against a number of brokerage firms alleging various securities
law violations.
Raymond James Financial, Inc. -- http://www.raymondjames.com--
is a diversified financial services holding company with
subsidiaries engaged primarily in investment and financial
planning, in addition to investment banking and asset
management.
SPRINT NEXTEL: Kansas Court Certifies Class in Employees' Suit
--------------------------------------------------------------
The U.S. District Court for the District of Kansas granted
class-action status to a purported class-action lawsuit from
employees who say they were shorted or denied commissions
because of a computer problem at the company, Dan Margolies of
The Kansas City Star reports.
On Dec. 10, 2008, Judge John Lungstrum certified the case, which
was brought by current and former employees of Sprint's Business
Direct Channel, as a class action.
The four named plaintiffs -- Sprint workers who live in
California, Texas, Virginia and Ohio -- estimate that the
proposed class covers hundreds of account executives and their
managers, according to The Kansas City Star reports.
The suit alleges the workers were shorted from $500 to $1,000 or
more per month over as many as five years because Sprint's
computer system failed to track sales information accurately.
Sprint has conceded it experienced computer problems. According
to documents in a similar case, the company formed a task force
to address the problems and spent up to $10 million and 35,000
labor hours to fix them.
Sprint, however, had argued that the case should not be granted
class-action status because separate inquiries were required to
determine whether each plaintiff's commission was correctly
calculated, reports The Kansas City Star.
Judge Lungstrum, however, ruled that "the common issue to be
decided is whether Sprint's computerized process for determining
commissions includes the correct numbers and performs the
appropriate calculations to pay employees accurately."
STERLING CHEMICALS: Continues to Defend "Evans" Lawsuit in Texas
----------------------------------------------------------------
Sterling Chemicals Inc. continues to defend itself in the
matter, "Evans, et al. v. Sterling Chemicals, et al., Case No.
H-07-0625," which is a purported class action suit filed before
the U.S. District Court for the Southern District of Texas
against the company.
On Feb. 21, 2007, the company received a summons naming it as a
defendant in the class action complaint. The plaintiffs
comprising the proposed class are employees and retired
employees of Sterling Fibers, Inc., one of the company's former
subsidiaries that was sold in connection with its Plan of
Reorganization in 2002.
The plaintiffs allege that the company was not permitted to
increase their premiums for retiree medical insurance based on a
provision contained in the asset purchase agreement between the
company and Cytec Industries Inc., governing its purchase of
Sterling Chemicals' former acrylic fibers business in 1997.
At the time of Sterling Chemicals' bankruptcy, it specifically
rejected this asset purchase agreement.
The plaintiffs are also asserting claims for breach of contract
and claims under the Employee Retirement Income Security Act and
are seeking damages, declaratory relief, punitive damages and
attorneys' fees.
The parties have taken minimal discovery to date. The
plaintiffs have moved for partial summary judgment and for class
certification related to their claims for denial of benefits
under the company's retiree medical plans.
The parties have fully briefed the issues and the motions are
pending before the court.
However, the court has stayed all proceedings while the
plaintiffs pursue administrative remedies under the terms of the
company retiree medical plans.
On April 23, 2008, the administrator of the company's
reorganization plan denied the plaintiffs' claims under the
terms of the company's retiree medical plans.
The defendants are in the process of securing discovery from the
predecessor companies of the fibers business to determine
changes to their retiree medical and drug plans, which could
have an effect on the plaintiffs' claims, according to the
company's Nov. 11 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2008.
The suit is "Evans, et al. v. Sterling Chemicals, et al., Case
No. H-07-0625," filed in the U.S. District Court for the
Southern District of Texas, Judge Kenneth M. Hoyt, presiding.
Representing the plaintiffs is:
Ronald Martin Weber, Jr., Esq.
(mweber@davis-davislaw.com)
Davis & Davis, 1301 McKinney, Ste. 3500
Houston, TX 77010
Phone: 713-781-5200
Fax: 713-781-2235
UNITED COMPONENTS: Bid for Class Suit Permit Pending in Ontario
---------------------------------------------------------------
A motion seeking authorization from a court in Ontario, Canada,
to have the matter proceed as a class proceeding against United
Components, Inc.'s wholly owned subsidiary, Champion
Laboratories Inc., remains pending.
Champion was named as one of 14 defendants in a class action
filed on May 21, 2008, in Ontario, Canada.
This action alleges civil conspiracy, intentional interference
with economic interests, and conspiracy violations under the
Canadian Competition Act related to the sale of aftermarket
filters.
The plaintiff seeks joint and several liability against the 14
defendants in the amount of $150 million in general damages and
$15 million in punitive damages.
The plaintiff is seeking authorization to have the matter
proceed as a class proceeding, which motion has not yet been
ruled on, according to the company's Nov. 13, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2008.
United Components, Inc. -- http://www.ucinc.com/-- designs,
develops, manufactures and distributes filtration, fuel, cooling
and engine management products to the automotive, trucking,
industrial, construction, agricultural, marine and mining
vehicle markets. The company offers approximately 41,000 part
numbers. It is a supplier to the vehicle replacement parts
market, or the aftermarket. Over 85% of its net sales, during
the year ended Dec., 2007, were made to vehicle replacement
parts market or the aftermarket, which is subdivided into four
primary channels: retail, traditional, heavy-duty and original
equipment service (OES). Filtration products made up 40.1% of
sales, during 2007, 23.7% for fuel products, 20.8% for cooling
products and the remaining 15.4% for engine management products.
UNITED COMPONENTS: Bid for Class Suit Permit Pending in Quebec
--------------------------------------------------------------
A motion seeking authorization to have the matter proceed as a
class proceeding against United Components, Inc.'s wholly owned
subsidiary, Champion Laboratories Inc., is pending in Quebec,
Canada.
Champion was named as one of five defendants in a class action
filed in Quebec, Canada.
This action alleges conspiracy violations under the Canadian
Competition Act and violations of the obligation to act in good
faith, contrary to art. 6 of the Civil Code of Quebec, related
to the sale of aftermarket filters.
The plaintiff seeks joint and several liability against the five
defendants in the amount of $5.0 million in compensatory damages
and $1.0 million in punitive damages.
The plaintiff is seeking authorization to have the matter
proceed as a class proceeding, which motion has not yet been
ruled on, according to the company's Nov. 13, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2008.
United Components, Inc. -- http://www.ucinc.com/-- designs,
develops, manufactures and distributes filtration, fuel, cooling
and engine management products to the automotive, trucking,
industrial, construction, agricultural, marine and mining
vehicle markets. The company offers approximately 41,000 part
numbers. It is a supplier to the vehicle replacement parts
market, or the aftermarket. Over 85% of its net sales, during
the year ended Dec., 2007, were made to vehicle replacement
parts market or the aftermarket, which is subdivided into four
primary channels: retail, traditional, heavy-duty and original
equipment service (OES). Filtration products made up 40.1% of
sales, during 2007, 23.7% for fuel products, 20.8% for cooling
products and the remaining 15.4% for engine management products.
VELOCITY EXPRESS: Still Defends Independent Contractors' Suits
--------------------------------------------------------------
Velocity Express Corp. and its subsidiary, CD&L Inc., continue
to face several purported class-action lawsuits that were filed
by independent contractors, according to the company's Nov. 12,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 27, 2008.
First Litigation
One of the class action complaints was filed in December 2003,
before the Los Angeles Superior Court. It seeks to certify a
class of California based independent contractors from December
1999 to the present.
The plaintiffs seeks unspecified damages for various employment
related claims, including, but not limited to overtime, minimum
wage claims, and claims for unreimbursed business expenses.
CD&L filed a reply to the complaint in January 2004 denying all
allegations.
The plaintiff's request for class certification was granted in
part and denied in part on Jan. 28, 2007.
During the quarter ended Sept. 27, 2008, the Company recorded a
benefit of approximately $1.0 million resulting from a change in
the estimated settlement liability related to this matter.
Discovery on this matter is ongoing.
Similar Litigation
Nine purported class-action lawsuits were filed against the
company between December 2007 and July 2008. These suits, which
were filed by a very small group of independent contractor
drivers in six different states, seek unspecified damages for
various unsubstantiated employment related claims.
Velocity Express Corp. -- http://www.velocityexp.com/--
together with its subsidiaries, is engaged in the business of
providing time definite ground package delivery services.
YAHOO INC: Revises Severance Plan to Settle Shareholders' Suit
--------------------------------------------------------------
Yahoo, Inc recently revised an expensive employee and executive
severance plan it had adopted following a takeover bid by
Microsoft Corp., settling a lawsuit brought by shareholders,
Reuters reports.
The new terms cut the potential costs to an acquirer and make
clear that the sale of Yahoo's search business -- which
Microsoft still covets -- would not invoke severance benefits.
The move comes as Yahoo searches for a new chief executive to
replace Jerry Yang, tries to pacify disgruntled shareholders and
begins the process of laying off 1,500 employees, Reuters
reported.
The new provisions of the plan state that any Yahoo employee
laid off within a year after an acquisition of Yahoo would be
eligible for severance, a reduction from the two years in the
original provisions.
Reuters reported that the new plan also states that the election
of a new board of directors is not considered a change in
ownership, nor is the sale of the company's search business. It
also clarifies the circumstances for firing for "good reason,"
and requires binding arbitration for disputes.
The agreement with pension funds and others who sued changes
severance plans Yahoo adopted in February 2008, following
Microsoft Corp.'s unsolicited takeover bid.
The settlement in Delaware's Court of Chancery stemmed from a
class-action lawsuit by the police and fire retirement system of
Detroit and others, according to Reuters.
New Securities Fraud Cases
GENERAL GROWTH: Glancy Binkow Files Securities Lawsuit in Ill.
--------------------------------------------------------------
LOS ANGELES, Dec 10, 2008 -- Notice is hereby given that
Glancy Binkow & Goldberg LLP has filed a class action lawsuit in
the United States District Court for the Northern District of
Illinois on behalf of a Class consisting of all persons or
entities who purchased or otherwise acquired the securities of
General Growth Properties, Inc. ("General Growth" or the
"Company"), between April 30, 2008 and October 26, 2008,
inclusive (the "Class Period").
The Complaint charges General Growth and certain of its
executive officers with violations of federal securities laws.
Among other things, plaintiff claims that defendants' material
omissions and dissemination of materially false and misleading
statements concerning the Company's business, operations and
prospects, caused General Growth's stock price to become
artificially inflated, inflicting damages on investors.
General Growth is a self-administered and self-managed real
estate investment trust.
The Complaint alleges that throughout the Class Period
defendants knew or recklessly disregarded that their public
statements were materially false and misleading.
Specifically, the Complaint alleges that defendants' public
statements were false and misleading or failed to disclose or
indicate the following:
-- that General Growth would not be able to refinance
billions of dollars of debt that was coming due in
late 2008 and early 2009;
-- that this was a direct result of the Company's
inability to access debt financing;
-- that certain Company executives had received loans
from the CEO's family trust in violation of General
Growth's Code of Business Conduct and Ethics;
-- that the Company lacked adequate internal controls;
and
-- that, as a result of the foregoing, defendants' Class
Period statements about the Company lacked a
reasonable basis.
At the end of the Class Period, as the truth about General
Growth's financial condition and defendants' misleading
statements and failures to disclose became known to the market,
the Company's stock price dropped from a Class Period high of
$43.83 to less than $2.00 per share, thereby damaging investors.
For more details, contact:
Michael Goldberg, Esq.
Glancy Binkow & Goldberg LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, California 90067
Phone: (310) 201-9150 or (888) 773-9224
e-mail: info@glancylaw.com
Web site: http://www.glancylaw.com
MEDTRONIC INC: Bernstein Litowitz Files Securities Suit in Minn.
----------------------------------------------------------------
NEW YORK, NY, Dec. 10, 2008 -- Bernstein Litowitz Berger &
Grossmann LLP ("BLB&G") today announced that it filed a class
action lawsuit in the United States District Court for the
District of Minnesota on behalf of its client Minneapolis
Firefighters' Relief Association ("Minneapolis Firefighters")
and similarly situated investors in the securities of Medtronic,
Inc. ("Medtronic" or the "Company") during the period from
November 19, 2007 through November 17, 2008 (the "Class
Period").
The case is captioned, "Minneapolis Firefighters' Relief
Association v. Medtronic, Inc., et al., Case No. 08-CV-6324."
The Complaint alleges that during the Class Period,
Medtronic, its Chief Executive Officer William A. Hawkins, III
("Hawkins") and Chief Financial Officer Gary Elliss ("Elliss")
violated the federal securities laws by issuing false and
misleading press releases, financial statements, filings with
the Securities and Exchange Commission and statements during
investor conference calls.
The Complaint alleges that, throughout the Class Period,
Medtronic -- a medical device manufacturer -- made repeated
false statements to the investing public concerning one of its
flagship products, the INFUSE Bone Graft ("INFUSE"),
representing to investors that it was a valuable and reliable
source of revenues for the Company.
Specifically, Defendants' statements and their portrayal of
INFUSE, a surgically-implanted medical device containing a
genetically engineered protein designed to stimulate bone
growth, were materially false and misleading because Defendants
concealed and failed to disclose material facts known to or
recklessly ignored by them about INFUSE that were necessary to
make their otherwise positive statements about the product and
the Company's financial condition accurate, truthful, and not
misleading to investors.
In particular, Defendants did not disclose the extent to
which revenues from sales of INFUSE were dependent on
applications of the product not approved by the United States
Food and Drug Administration ("FDA"), or so-called "off-label"
uses; did not disclose that a significant and increasing number
of patients subjected to such off-label uses of INFUSE were
suffering severe medical complications; and hid the fact that
the extensive off-label usage of INFUSE was the result of an
unlawful campaign by Defendants to market and encourage off-
label use of the product.
Defendants' false and misleading statements concerning
INFUSE and the Company's financial condition artificially
inflated the price of the Company's publicly traded securities
during the Class Period. Revelations concerning Defendants'
false and misleading statements during the Class Period caused
significant losses to investors as the prices of the Company's
securities experienced severe declines as a direct result of
these revelations, with the Company's stock price closing the
day after the end of the Class Period at $31.20 per share, down
from a Class Period high of $55.65 per share.
The Complaint alleges that the Defendants violated Section
10(b) of the Securities Exchange Act of 1934 (the "Exchange
Act") and Rule 10b-5 promulgated thereunder and that Defendants
Hawkins and Elliss violated Section 20(a) of the Exchange Act.
For more information, contact:
Gerald H. Silk, Esq.
Salvatore J. Graziano, Esq.
Bernstein Litowitz Berger & Grossmann LLP
1285 Avenue of the Americas
New York, NY 10019
Phone: 212-554-1400
SADIA S.A.: Cohen Milstein Announces N.Y. Securities Suit Filing
----------------------------------------------------------------
WASHINGTON, Dec. 10, 2008 -- The law firm Cohen Milstein
Sellers & Toll PLLC has filed a lawsuit in the United States
District Court for the Southern District of New York on behalf
of all purchasers of American Depository Receipts ("ADRs"or
"shares") of Sadia S.A. ("Sadia" or the "Company") between April
30, 2008 and September 26, 2008 inclusive (the "Class Period").
The Complaint charges Sadia and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
Sadia is a refrigerated and frozen protein products company
that offers processed products, poultry, and pork in Brazil.
More specifically, the Complaint alleges that the Company
failed to disclose and misrepresented the following material
adverse facts which were known to defendants or recklessly
disregarded by them:
-- that the Company had entered into currency derivative
contracts that were unnecessary, too large, and in
clear violation of the Company's hedging policy;
-- that the Company's exposure to currency contracts was
not "nominal," but rather extremely large and
speculative;
-- that the Company lacked adequate internal and
financial controls;
-- that the Company's financial statements, by not
accounting for Sadia's exposure to currency market
fluctuation, were materially false and misleading at
all relevant times; and
-- 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 when made.
The Complaint further alleges that on September 25, 2008,
the Company shocked investors when it announced that it had
suffered losses of R$760 million (U.S. $410 million) due to
investments in currency contracts hedging against the U.S.
dollar.
The Associated Press reported that the Company's losses on
these contracts were likely greater than the Company's earnings
for 2008. The following day, the Company announced that its
Chief Financial Officer ("CFO") had been dismissed.
Upon the release of this news, the Company's shares fell
$5.77 per share, or 37.79 percent, to close on September 26,
2008 at $9.50 per share, on unusually heavy trading volume.
The Company's shares continued to fall the following
trading day as the news continued to reach the marketplace,
declining an additional $1.51 per share, or 15.89 percent, to
close on September 29, 2008 at $7.99 per share, again on
unusually high trading volume.
Subsequently, on October 6, 2008, the Company announced
that its Chairman and Vice Chairman had resigned. On this news,
the Company's shares continued to decline, closing at $7.75 per
share and $6.47 per share on October 6, 2008 and October 7,
2008, respectively.
For more details, contact:
Steven J. Toll, Esq. (stoll@cmht.com)
Cohen, Milstein, Hausfeld & Toll, P.L.L.C.
1100 New York Avenue, N.W.
West Tower, Suite 500
Washington, D.C. 20005
Phone: (888) 240-0775 or (202) 408-4600
UBS FINANCIAL: Zwerling Schachter Files Securities Suit in N.Y.
---------------------------------------------------------------
NEW YORK, NY, Dec. 10, 2008 -- The New York law firm of
Zwerling, Schachter & Zwerling, LLP has filed a securities
class-action lawsuit against UBS Financial Services, Inc., a
subsidiary of Zurich, Switzerland-based UBS AG (NYSE: UBS), as
well as officers and directors of Lehman Brothers, based on
financial losses suffered by investors who bought securities
known as principal protection notes.
Lehman Brothers issued the notes in question with UBS and
Lehman serving as the underwriters and sellers. The lawsuit was
filed in the U.S. District Court for the Southern District of
New York.
Principal protection notes purportedly provide investors
with protection for some or all of the principal they invest as
well as a potential for a return based on the performance of the
underlying investment. But note-holders' investments effectively
vanished in September when Lehman Brothers defaulted on the
notes by filing the largest bankruptcy in U.S. history.
In this case, the plaintiff alleges that Lehman Brothers
promised investors a complete return of principal even while the
company knew its own financial situation was precarious.
Lehman Brothers was maintaining inflated commercial and
residential mortgage and real estate assets in addition to large
amounts of leverage, and failed to take steps to lower its
exposure to the weakening credit and mortgage markets or explain
such risks to investors.
"Lehman Brothers was selling these notes and telling
investors they would get all of their principal back, but they
knew that if something went wrong, they wouldn't be able to hold
up their end of the bargain," says attorney Jeffrey Zwerling,
who filed the lawsuit. "And the sad thing is these investors
are not alone. There are others who bought notes from other
investment banks and now are in the same situation."
The class action is brought on behalf of all persons and
entities who, from May 30, 2006, until September 15, 2008 (the
"Class Period"), purchased unsecured obligations known as 100%
Principal Protection Notes (the "Principal Protection Notes")
that were issued pursuant to Lehman's Form S-3 Registration
Statement, dated May 30, 2006 (the "Registration Statement") and
Medium-Term Notes, Series I Prospectus Supplement, dated May 30,
2006 (the "MTN Prospectus"), and underwritten and sold by UBS
and others, and who were damaged thereby (the "Class").
For more details, contact:
Shaye J. Fuchs, Esq. (sfuchs@zsz.com)
Willy T. Gonzalez (wgonzalez@zsz.com)
Zwerling, Schachter & Zwerling, LLP
41 Madison Avenue
New York, NY 10010
Phone: 800-721-3900
Fax: 212-371-5969
Web site: http://www.zsz.com
Asbestos Alerts
ASBESTOS LITIGATION: Deadline for RUSA, C2S Penalties Scheduled
----------------------------------------------------------------
The Oregon Department of Environmental Quality had set deadlines
for the Roseburg Urban Sanitary Authority (Dec. 8, 2008) and
Oakland, Ore.-based contractor C2S Group LLC (Dec. 9, 2008) to
appeal asbestos-related penalties, The News Review reports.
In November 2008, the City of Roseburg appealed a US$5,400 fine
from the DEQ for allowing C2S to remove and dispose of asbestos
cement without being licensed to perform the work.
The DEQ also fined the Roseburg Urban Sanitary Authority
US$7,286 and C2S US$10,800 for violations related to the
unlicensed asbestos abatement project on Calkins Road in
Roseburg.
The DEQ fined RUSA for allowing an unlicensed contractor to
perform an asbestos project on property it owns and then
improperly packaging, transporting and discarding of it.
In October 2007, the city hired C2S to install a new storm
pipeline (an upgrade to 60-inch diameter from 36-inch) from
Calkins Road to Newton Creek.
However, a parallel sanitary sewer line, made of asbestos cement
owned and operated by RUSA, was compromised during the
installation of the storm pipeline and was eventually smashed
and hauled away as fill-in for a property site at 523 Troost St.
About 175 feet of the asbestos-containing pipeline was cut away
before being transported.
Steven Croucher, an environmental specialist for DEQ, said the
asbestos-containing pipeline was shallower than the storm
pipeline and close enough to the construction ditch to where it
began to collapse.
Mr. Croucher said the smashed pipe should have been packaged in
leak-tight containers and transported to a waste disposal site
authorized by DEQ.
Roseburg Public Works Director Nikki Messenger said the city
appealed the fine, which city officials felt was harsh, and
continued to negotiate with DEQ.
Ms. Messenger also said the city would prefer to mitigate the
US$5,400 fine by performing some sort of work at the site of the
compromised pipe or somewhere else the state agency had in mind.
The sewer pipe contained 15 percent of both chrysotile and
crocidolite asbestos.
Bruce Moore, Esq., an attorney representing C2S based in Eugene,
Ore., said C2S is appealing the fine.
ASBESTOS LITIGATION: U.K. Campaigners Cite Medical Breakthrough
----------------------------------------------------------------
Campaigners in the United Kingdom, on Dec. 5, 2008, said that a
medical breakthrough by the British Lung Foundation could bring
hope to asbestos victims in South Tyneside, England, The Shields
Gazette reports.
The BLF research has discovered a gene which appears to protect
people from lung cancer. Borough campaigners raising cash to
help fight mesothelioma said the breakthrough could also help
the fight against asbestos industrial killers.
The findings about the gene were published in the journal
Proceedings of the National Academy of Sciences USA, which is
funded by the BLF.
A research team at the University of Nottingham examined lung
cancer tissue from patients, comparing it to healthy lung cancer
tissue. They discovered that the LIMD1 gene was missing in most
of the lung cancer samples, indicating that the presence of the
gene protects the body against lung cancer.
Lead researcher Dr. Tyson Sharp said, "We are now going to
extend these findings by developing LIMD1 as a novel prognostic
tool for detection of early-stage lung cancer."
Anne Craig, of Hebburn, whose husband David died of mesothelioma
after coming into contact with asbestos fibers in the workplace
decades earlier, said, "This breakthrough could have very
significant implications for research into mesothelioma.
Researchers discovered that people without this particular gene
were more likely to die from lung cancer, but seemed to be
protected if they had it. I would hope this could mean a gene in
the lungs could also help protect people against mesothelioma."
Mrs. Craig, an official of the Mick Knighton Mesothelioma
Research Fund, added, "I think this could potentially be great
news for those with mesothelioma, plus their loved ones."
ASBESTOS LITIGATION: Pensioner Gets GBP250T Over Wife's Exposure
----------------------------------------------------------------
Retired pipe-fitter and pensioner Alfred Eccles got GBP250,000
in compensation after his wife, Patricia Eccles, died following
years of exposure from washing Mr. Eccles' asbestos-contaminated
clothes, The Sentinel reports.
Mr. Eccles received the money from his former employer Universal
Grinding Wheel Company, in Stafford, England, in an out-of-court
settlement.
The 67-year old Mr. Eccles was exposed to asbestos in pipe
lagging as part of his job from the 1960s to 1992. For around 10
years, Mrs. Eccles laundered his work clothes, exposing her to
asbestos fibers and dust.
Mrs. Eccles, who died in 2004, likely contracted mesothelioma
after being exposed to asbestos. Mr. Eccles, who has fought for
compensation since his wife's death, said, "I'm angry with the
company and myself, and feel guilty because Patricia caught the
disease from my clothes."
Mr. Eccles contracted lung cancer in 1988 and had chemotherapy.
However it was not proved that the cause was asbestos.
A spokesman for Zurich, one of the insurers for Universal
Grinding Wheel, said, "We entirely sympathize with the
circumstances of the family. The company is committed to paying
out for claims for symptomatic asbestos-related illnesses as
swiftly as possible."
ASBESTOS LITIGATION: Robinson Case v. U.S. Steel Filed in Texas
----------------------------------------------------------------
Rhonda Robinson, on behalf of the estate of Herman Robinson,
filed an asbestos-related lawsuit against United States Steel
Corporation in Jefferson County District Court, Tex., on Nov.
24, 2008, The Southeast Texas Record reports.
The suit alleges that Mr. Robinson was exposed to asbestos
during his employment with U.S. Steel to contract an asbestos
illness, which allegedly claimed his life in 2007. The suit
asserts that a settlement is in place and is asking the Court to
approve Ms. Robinson as independent administratrix of the
estate.
Case No. A182-759 was assigned to Judge Bob Wortham. Prosecuting
attorney in the case is Chris Portner, Esq.
ASBESTOS LITIGATION: Fire Service Criticized for Ignoring Hazard
----------------------------------------------------------------
Firefighters in Tasmania, Australia, accused the Fire Service of
neglecting asbestos contamination in fire stations, ABC News
reports.
The Firefighters Union says a recent survey found asbestos
registers are kept in nine out of 105 stations built before the
toxic substance was banned. The Union's Richard Warwick says
firefighters are frustrated with a lack of information.
The Fire Service has rejected claims that it is neglecting
asbestos contamination in its buildings.
The Acting Deputy Chief Officer Tony Davidson says he is
disappointed the union went to the media before discussing the
matter. He says a meeting with the union was held and nothing
was mentioned.
Mr. Davidson says buildings constructed after 1987 do not
contain asbestos, and the Tasmanian Fire Service has advice that
other buildings pose no danger.
ASBESTOS LITIGATION: Split Ruling Issued in Cooney & Conway Case
----------------------------------------------------------------
The Appellate Court of Illinois, First District, Fourth
Division, issued split rulings in an asbestos-related case filed
by law firm Cooney and Conway against asbestos lawyers Lisa A.
LaConte, Esq., and Christopher P. Larson, Esq.
The case is styled In re All Asbestos Litigation (Cooney and
Conway), Plaintiff-Appellee v. Lisa A. LaConte, as Counsel for
Defendant Warren Pumps, LLC; and Christopher P. Larson, as
Counsel for Defendant Riley Stoker Corporation, Contemnors-
Appellants).
Judges Sheila M. O'Brien, Michael J. Murphy, and Justice
Campbell entered judgment in Case Nos. 1-06-2163, 1-06-2691 on
Oct. 16, 2008.
This consolidated appeal involved a discovery dispute arising
out of ongoing consolidated Cook County litigation entitled: In
re: All Asbestos Litigation. C & C represented multiple
individuals who claimed that they contracted various forms of
fatal cancer as a result of exposure to asbestos up to 40 years
ago.
On behalf of these plaintiffs, C & C sued Warren Pumps, LLC, a
manufacturer of industrial pumps, and Riley Stoker, a designer
and manufacturer of steam generator boilers and fuel-firing
equipment.
C & C served discovery requests upon Warren Pumps requesting
product sales information covering a 38-year period. Warren
Pumps complied with the discovery requests. C & C then served
Warren Pumps with a motion to compel additional discovery.
Ms. LaConte, attorney for Warren Pumps, refused to comply with
the motion. The Circuit Court, Cook County granted C & C's
motion to compel discovery and entered an order of "friendly
contempt," citing Ms. LaConte US$1.
On appeal, Ms. LaConte contended that the trial court erred in
compelling discovery covering a nearly 40-year period when C & C
did not allege that any specific plaintiff was exposed to or
harmed by the products manufactured or sold by Warren Pumps any
specific location in Illinois.
The Appeals Court reversed, vacated the two orders of the trial
court compelling production and finding Ms. LaConte in contempt,
and remanded this matter for further proceedings consistent with
this opinion.
Heyl, Royster, Voelker & Allen (Karen L. Kendall, Esq. of
counsel), of Peoria, Ill., represented Appellant.
Cooney and Conway (Kathy Byrne, Esq., of counsel), of Chicago,
represented Appellee.
ASBESTOS LITIGATION: 50 Cases Pending Against Met-Pro at Oct. 31
----------------------------------------------------------------
A total of 50 asbestos-related cases were pending against Met-
Pro Corporation as of Oct. 31, 2008, compared with 38 pending
cases as of Jan. 31, 2008, according to the Company's quarterly
report filed with the Securities and Exchange Commission on Dec.
5, 2008.
A total of 49 asbestos cases were pending against the Company as
of July 31, 2008, compared with 38 cases as of Jan. 31, 2008.
(Class Action Reporter, Sept 12, 2008)
Beginning in 2002, the Company and one of its divisions began to
be named as one of many defendants in asbestos-related lawsuits
filed predominantly in Mississippi on a mass basis by large
numbers of plaintiffs against a large number of industrial
companies including in particular those in the pump and fluid
handling industries.
More recently, the Company and this division have been named as
one of many pump and fluid handling defendants in asbestos-
related lawsuits filed in New York and Maryland by individual
plaintiffs, sometimes husband and wife. To a lesser extent, the
Company and this division have also been named together with
many other pump and fluid handling defendants in these type of
cases in other states as well.
The complaints filed against the Company and this division have
been vague, general and speculative, alleging that the Company,
and the division, along with the numerous other defendants, sold
unidentified asbestos-containing products and engaged in other
related actions which caused injuries and loss to the
plaintiffs.
The Company and the division have been dismissed from or settled
a number of these cases. The sum total of all payments through
Oct. 31, 2008 to settle these cases was US$355,000, all of which
has been paid by the Company's insurers, with an average cost
per settled claim of about US$24,000.
For the nine-month period ended Oct. 31, 2008, 19 new cases were
filed against the Company and seven cases were dismissed. Most
of the pending cases have not advanced beyond the early stages
of discovery, although several cases are on schedules leading to
trial.
Harleysville, Pa.-based Met-Pro Corporation's product recovery
and pollution-control segment makes products like particle
collectors (used in food preparation) and fans and blowers (used
in semiconductor manufacturing plants). The fluid-handling
equipment segment makes products for handling corrosive,
abrasive, and high-temperature liquids.
ASBESTOS LITIGATION: Injury Actions Still Ongoing Against Scotts
----------------------------------------------------------------
The Scotts Miracle-Gro Company still is a defendant in a number
of cases alleging injuries that the lawsuits claim resulted from
exposure to asbestos-containing products, based on its historic
use of vermiculite in certain of its products.
The complaints in these cases are not specific about the
plaintiffs' contacts with the Company or its products.
The Company in each case is one of numerous defendants and none
of the claims seek damages from the Company alone.
Marysville, Ohio-based The Scotts Miracle-Gro Company
manufactures, markets, and sells lawn and garden care products.
The Company's major customers include home improvement centers,
mass merchandisers, warehouse clubs, large hardware chains,
independent hardware stores, nurseries, garden centers, food and
drug stores, commercial nurseries and greenhouses and specialty
crop growers.
ASBESTOS LITIGATION: 5 New Claims filed in Ill. From Nov. 24-29
----------------------------------------------------------------
Five new asbestos-related lawsuits, during the week of Nov. 24,
2008 through Nov. 29, 2008, were filed in Madison County Circuit
Court, Ill., The Madison St. Clair Record reports.
The following claims were filed:
-- Dora Jean Cantrell of Tennessee on behalf of Willard
Cantrell claims mesothelioma. Mr. Cantrell worked in
the U.S. Army from 1966 until 1968 and worked as a
laborer at a saw mill for several years. He also
performed various home construction projects. Randy L.
Gori, Esq., and Barry Julian, Esq., of Gori, Julian and
Associates in Alton, Ill., represent the Cantrells in
Case number: 08-L-1123.
-- Dan and Merle Cochran of Illinois claim mesothelioma.
Mr. Cochran was a service station worker from 1954
until 1994 and a janitor and maintenance man at various
locations in Illinois. Richard L. Saville, Esq., Robert
J. Evola, Esq., Ethan A. Flint, Esq., and David J.
Page, Esq., of Saville, Evola and Flint in Alton, Ill.,
represent the Cochrans in Case number: 08-L-1118.
-- Lawrence Gilbert of Tennessee, an electrician and
welder at various locations throughout Illinois, New
Hampshire, Tennessee, Louisiana, Alabama, Vermont and
Maine from 1955 until 1999, claims bilateral pleural
plaques. Christopher R. Guinn, Esq., Christopher J.
Levy, Esq., John A. Barnerd, Esq., and Perry J.
Browder, Esq., of SimmonsCooper in East Alton, Ill.,
represent Mr. Gilbert in Case number: 08-L-1120.
-- Robert Rainey of Texas, a lab technician from 1967
until now and a seaman from 1955 until 1959, claims
mesothelioma. Stephanie A. Lyons, Esq., and Timothy F.
Thompson, Jr., Esq., of SimmonsCooper in East Alton,
Ill., represent Mr. Rainey in Case number: 08-L-1112.
-- Glenn F. Shreve, Sr., of Pennsylvania, a labor worker,
heavy equipment mechanic, tank mechanic, Army recruiter
and maintenance worker from 1957 until 1997, claims
mesothelioma. He was also exposed to asbestos through
home construction and his own mechanic work, he claims.
Randy L. Gori, Esq., of Gori, Julian and Associates in
Alton, Ill., with W. Mark Lanier, Esq., Patrick N.
Haines, Esq., R. Craig Bullock, Esq., and J. Kyle
Beale, Esq., of The Lanier Law Firm in Houston,
represent Mr. Shreve in Case number: 08-L-1121.
ASBESTOS LITIGATION: Old Ind. Hospital Tagged as Health Hazard
----------------------------------------------------------------
The old Winona Hospital building, near Meridian and 32nd streets
in Indianapolis, Ind., has been deemed a health hazard by the
police due to the presence of asbestos, 6News reports.
Indianapolis police have ordered officers and firefighters not
to enter the hospital, which has been vacant for more than four
years, without protective gear.
It comes more than a year after 35 members of the SWAT team
spent two days training inside the building, which has tested
positive for mold, asbestos and other toxins, said Lt. Jeffery
Duhamell. Those officers are now under medical supervision.
The building has been plagued by health, environmental and crime
issues since its closure after Winona declared bankruptcy in
September 2004.
Several fuel tanks are buried beneath the building and metal
thieves have stripped the interior. City officials said they may
have to negotiate permission from the neighborhood to erect a
barbed wire fence around the vacant building to keep looters
out.
Even with the problems and an unpaid property tax bill of nearly
US$1.9 million, the city has said it wants to acquire the land
for future redevelopment.
Nick Weber, Indianapolis director of economic development, said,
"Certainly, there's going to be costs associated with this site.
And whether it's demolition costs, environmental remediation
costs, who bears those costs would be part of the conversation
that we would have with future developers."
ASBESTOS LITIGATION: Cleanup Costs Delay Ramada Inn's Demolition
----------------------------------------------------------------
Administrator Patrick Ungaro of Liberty Township, Trumbull
County, Ohio, said that the delicate and costly removal of
asbestos delayed the demolition of the dilapidated Ramada Inn at
4255 Belmont Ave., vindy.com reports.
Workers at the property, which has sat vacant for seven years,
have encountered higher-than-estimated amounts of asbestos. Mr.
Ungaro added that more asbestos was found in the hotel's
restaurant and bar on Dec. 3, 2008.
Removing the newly found asbestos requires approval from the
Ohio Department of Health, Mr. Ungaro said, and an estimated
extra US$10,000. He said that clearing the building of the
asbestos has accounted for the demolition delay but that he
expects workers to begin tearing the structure down.
However, even after the site has been leveled, which is
estimated to take as long as two months, real estate manager
Stan Nudell said the site is without a concrete future for now.
Mr. Nudell, of Youngstown, Ohio, firm Lewis Realty, said, "We've
talked to a number of individuals interested in the property.
But the economic uncertainty has put a stop on development for
the next 30 days. People are waiting till next year to see what
happens."
ASBESTOS LITIGATION: Cleanup in "Big Tex" Site to Cost $500,000
----------------------------------------------------------------
Asbestos cleanup at a "Big Tex" industrial compound in San
Antonio, Tex., is expected to cost US$500,000, Asbestos.com
reports.
Found during a routine environmental cleanup, the discovery has
put the completion of the process in serious doubt. The U.S.
Environmental Protection Agency will lead efforts in cleaning
and restoring the site.
Federal crews are already removing the contaminated soil by
scraping off four to six inches in affected areas. They will
also remove asbestos from two contaminated buildings on the
site. In the heart of a populated area, workers are doing
everything to prevent any airborne asbestos to escape the site.
During the removal process, EPA crews will wear protective gear,
including special respiratory masks that guard against possible
airborne fibers.
The EPA will seek reimbursement of the US$500,000 from current
owners of the location that are found responsible for the
contamination.
ASBESTOS LITIGATION: Specialty Contractors Pays $30T for Breach
----------------------------------------------------------------
The Montana Department of Environmental Quality has settled its
enforcement action against Specialty Contractors, Inc. for
violations of the Montana Asbestos Control Act, according to a
DEQ press release dated Dec. 4, 2008.
The company paid a US$30,000 administrative penalty to resolve
the violations.
In May 2005, Specialty failed to obtain an asbestos abatement
permit from the DEQ before undertaking an asbestos abatement
project at the Albertsons Grocery Store in Missoula, Mont.
Specialty removed about 22,000 square feet of asbestos-
containing mastic (glue that holds down tile) without a negative
pressure enclosure and without using wet methods. No asbestos
exposures were documented in the store.
Chad Anderson, DEQ Environmental Enforcement Specialist, said
that these violations highlight the importance that contractors
and business owners communicate with DEQ's Asbestos Control
Program prior to beginning renovations to ensure that permits
are applied for and proper work practices will be used.
ASBESTOS LITIGATION: Wigan Widow Supports HSE Warnings on Hazard
----------------------------------------------------------------
Marjorie Catterall, a Wigan, United Kingdom, widow, supports the
Health and Safety Executive's warnings that the asbestos health
crisis is not over, Mesothelioma reports.
Mrs. Catterall said tradesmen should be aware that the material
still exists within a large of percentage of buildings built or
refurbished before 2000, and she urges them to take all possible
safety precautions to prevent being exposed to it. She said she
did not want more people to suffer through what she saw her
husband experienced, citing he was no longer his healthy and
energetic self within weeks of diagnosis.
Mrs. Catterall, whose husband Tom died nearly five years ago
from asbestosis, is now an important member of the Mesothelioma
Action Group.
Mr. Catterall had lived for four months after he was diagnosed
with asbestosis, which developed as a result of exposure to
asbestos during his working days.
HSE reports show that between 1981 and 2000, 86 people in Wigan
died from mesothelioma, and it is believed the number of deaths
each year continues to rise. Those victims were among the 2,431
deaths reported across the North West for that period of time.
ASBESTOS LITIGATION: Autopsy Waived for Seattle Asbestos Victim
----------------------------------------------------------------
James Ross, of Seattle, who filed a claim due to mesothelioma,
on Dec. 4, 2008, scored a victory when King County Superior
Court Judge Paris Kallas ruled that Mr. Ross' case does not have
to comply with a long-standing county policy requiring an
autopsy, The Seattle Times reports.
Since being diagnosed with asbestos-related cancer two years
ago, the 71-year-old Mr. Ross has come to accept his terminal
illness. It's the hours after the Queen Anne man takes his final
breath that have him concerned.
After filing a lawsuit last year against several manufacturers
of asbestos products, Mr. Ross learned that mesothelioma victims
who die in the midst of civil litigation in King County must
undergo an autopsy.
Mr. Ross objected, saying a physician has diagnosed him with the
cancer and an autopsy will be unnecessary. He asked a Judge
Kallas to issue a protection order to spare his wife, Esther,
the emotional stress of enduring an autopsy while trying to plan
his funeral.
The autopsy requirement was adopted in 1984, when King County
was overwhelmed with claims stemming from cancer-causing
building materials, said Seattle attorney Matthew Bergman, Esq.,
who is representing Mr. Ross.
In his motion to have Mr. Ross' body kept off the exam table,
Mr. Bergman pushed to have the county stop performing autopsies
on those who had filed suit for asbestos-related damages.
While Judge Kallas denied Mr. Bergman's move to throw out the
autopsy requirement, Mr. Bergman says Mr. Ross' case lays the
groundwork for other court challenges to the post-death
examination.
ASBESTOS LITIGATION: Regulations "Delay" Angers Aussie Victims
----------------------------------------------------------------
The Asbestos Victims Association criticized South Australia's
government for the delay in implementing regulations that would
allow the compensation of asbestos victims, ABC News reports.
Campaigner Terry Miller says the relevant laws passed Parliament
three years ago. However, problems still exist over when
liability will be recognized. He says the minister has set 1971
as the date when companies first knew about the dangers of
asbestos, but BHP Billiton thinks the date should be changed
back to 1979.
Mr. Miller said, "In May this year he invited us to comment on a
review date of 1971. We believe that it should be 1960 and we
believe that would be fair."
In April, the SA Government changed the date for recognition of
additional damages from 1979 to 1971. That date recognizes when
companies knew about the dangers of asbestos and could lead to a
premium compensation payment to victims.
Independent Senator Nick Xenophon says he is worried the SA
Government may bow to the pressure. He said, "The Government
needs to work out whether it's there to kowtow to the Big
Australian, BHP, or whether to look after the little guy who
suffers the consequence of asbestos-related disease."
SA Attorney-General Michael Atkinson says the Government will
not be pressured. He said, "I rather doubt that any of the
representations made to date, especially BHP Billiton, cause me
to change my mind."
ASBESTOS LITIGATION: Mueller Water Units Still Have Injury Cases
----------------------------------------------------------------
Some of Mueller Water Products, Inc.'s subsidiaries have been
named as defendants in asbestos-related lawsuits.
No other asbestos-related matters were disclosed in the
Company's annual report filed with the Securities and Exchange
Commission on Nov. 26, 2008.
Atlanta-based Mueller Water Products, Inc. manufactures and
markets water infrastructure, flow control and piping component
system products for use in water distribution networks and
treatment facilities. Products include engineered valves, fire
hydrants, pipe fittings, water meters and ductile iron pipe,
which are used by municipalities, as well as the non-residential
and residential construction, heating, ventilation and air
conditioning, fire protection and oil & gas industries.
ASBESTOS LITIGATION: BJ Services Still Facing Lawsuits in Miss.
----------------------------------------------------------------
BJ Services Company continues to face asbestos-related lawsuits
in Mississippi courts, according to the Company's annual report
filed with the Securities and Exchange Commission on Nov. 26,
2008.
In August 2004, certain predecessors of the Company, along with
numerous other defendants were named in four lawsuits filed in
the Circuit Courts of Jones and Smith Counties in Mississippi.
These four lawsuits included 118 individual plaintiffs alleging
that they suffer various illnesses from exposure to asbestos and
seeking damages.
The lawsuits assert claims of unseaworthiness, negligence, and
strict liability; all based upon the status of the Company's
predecessors as Jones Act employers.
The plaintiffs were required to complete data sheets specifying
the companies they were employed by and the asbestos-containing
products to which they were allegedly exposed. Through this
process, 25 plaintiffs have identified the Company or its
predecessors as their employer. Amended lawsuits were filed by
four individuals against the Company and the rest of the 114
original claims were dismissed.
Of these four lawsuits, three failed to name the Company as an
employer or manufacturer of asbestos containing products so the
Company was thereby dismissed. Subsequently an individual from
one of these lawsuits brought his own action against the
Company. As a result, the Company is named as an employer in two
of the Mississippi lawsuits.
Some of the allegations involve claims that the Company is the
successor to the Byron Jackson Company. To date, the Company has
been successful in obtaining dismissals of such cases without
any payment in settlements or judgments, although some remain
pending at the present time.
Houston-based BJ Services Company provides pressure pumping and
oilfield services for the petroleum industry. During the year
ended Sept. 30, 2008, the Company generated 81 percent of its
revenue from pressure pumping services and 19 percent from the
oilfield services group. The Company conducts its operations
through four principal segments: U.S./Mexico Pressure Pumping
Services, Canada Pressure Pumping Services, International
Pressure Pumping Services, Oilfield Services Group.
ASBESTOS LITIGATION: Trial in Ham's Injury Suit Set for July 27
----------------------------------------------------------------
The trial date of Frank Ham's asbestos-related case in Federal
Court has been set for July 27, 2009, according to a Clapper,
Patti, Schweizer & Mason press release dated Dec. 8, 2008.
Mr. Ham was diagnosed with pleural mesothelioma in 2006. He
contacted the law firm of Clapper, Patti, Schweizer & Mason for
legal representation.
Mr. Ham worked as a pipe fitter in Nevada and California from
1954 until 1985. He was exposed to asbestos-containing products
while doing this work. Ecklund Insulation, Inc. was an
insulation contractor that worked on many of the same jobs as
did Mr. Ham in the 1960s.
A lawsuit was filed in the San Francisco Superior Court in 2006
on behalf of Frank and Dana Ham (Superior Court number 455063).
The suit named a number of asbestos manufacturers and suppliers,
including Ecklund Insulation, Inc.
The owner of Ecklund promptly notified CNA, Mr. Ham's insurer
that the lawsuit had been filed and that CNA's predecessor had
insured Ecklund during the entire time it was in business.
CNA conducted a search for the insurance policies and when none
were found, closed its file on the case. In the meantime, an
investigation by Mr. Ham's lawyers discovered that a certificate
of insurance had been issued by CNA on behalf of Ecklund for a
job performed in the 1960s. Ecklund notified CNA, but never
received a response. No answer to the complaint was filed on
behalf of Ecklund.
All of the other companies that had been named in the Superior
Court lawsuit settled for several million dollars prior to
trial, thus allowing Mr. Ham to seek the best of medical
treatment for his mesothelioma.
On June 28, 2007, a default judgment was obtained in Superior
Court in the amount of US$2,671,000 in favor of the Hams.
In 2008, an insurance bad faith complaint was filed on the Mr.
Ham's behalf against CNA by Clapper, Patti, Schweizer & Mason in
the San Francisco Superior Court.
CNA removed the case to Federal Court and it is now assigned to
Judge Samuel Conti (Case No. CV081551SC).
ASBESTOS LITIGATION: Whitchurch Local's Death Linked to Exposure
----------------------------------------------------------------
A Dec. 5, 2008 inquest in Shrewsbury, England, heard that the
death of 65-year-old Whitchurch, England, local Michael Sullivan
was linked to exposure to asbestos, the Whitchurch Herald
reports.
Coroner John Ellery recorded a verdict of death from industrial
disease.
Mr. Sullivan was admitted when he was suffering from a shortness
of breath. He died three hours later on Sept. 25, 2008 at the
Royal Shrewsbury Hospital.
Mr. Ellery heard that Mr. Sullivan worked for various companies
between 1956 and 1975 when he came into contact with asbestos. A
post mortem revealed asbestosis was a contributory cause of his
death from heart disease and coronary artery problems.
ASBESTOS LITIGATION: Remand Motions OK'd in Case, Brown Actions
----------------------------------------------------------------
The U.S. District Court, Southern District of Mississippi,
Southern Division, granted Motions to Remand related to
asbestos-related lawsuits filed by Howard M. Case and John Lee
Brown.
The actions are styled Howard M. Case, Plaintiff v. Phillips 66
Company, et al., Defendants and John Lee Brown, Plaintiff v.
Phillips 66 Company, et al., Defendants.
Senior District Judge Walter J. Gex III entered judgment in
Civil Action Nos. 1:08cv985WJG, 1:08cv1049WJG on Nov. 26, 2008.
The second amended complaint in these suits were filed on or
about March 14, 2006, seeking damages for alleged injuries
caused by exposure to asbestos containing products. Plaintiffs'
claims were based on Mississippi common law causes of action
including negligence; willful and/or negligent infliction of
emotional distress; strict liability in tort; and product
liability, which included a claim for failure to warn.
The cases were originally filed on or about May 19, 2004, and
were part of multi-plaintiff litigation which were severed,
transferred or dismissed without prejudice in Mississippi state
court actions.
According to the Defendants, the only "proper" defendants
remaining in these cases were Union Carbide Corporation,
ConocoPhillips Company, and Montello, Inc.
Defendants claimed that Mississippi Mud, Inc., and Oilfield
Service and Supply Company, Inc., were added as defendants to
defeat jurisdiction in these cases. Defendants argued that
because Mississippi Mud was a sham defendant, Plaintiffs
deprived Defendants of their right to removal, and should
provide for the waiver of the one-year limit on removals.
The Court granted the motions of Plaintiffs to remand these
cases to the Circuit Court of Jones County, Miss.
ASBESTOS LITIGATION: Miss. Court OK's Remand Bid in Martin Case
----------------------------------------------------------------
The U.S. District Court, Southern District of Mississippi,
Southern Division, granted Bob K. Martin's Motion to Remand in
an asbestos-related lawsuit filed against Conoco Phillips
Company and other defendants.
The case is styled Bob K. Martin, Plaintiff v. Phillips 66
Company, et al., Defendants.
Senior District Judge Walter J. Gex III entered judgment in
Civil Action No. 1:08cv1336WJG on Nov. 25, 2008.
This suit was originally filed in 2004, seeking damages for
alleged injuries caused by exposure to asbestos containing
products. Mr. Martin advanced claims based on Mississippi common
law causes of action, in addition to claims brought under
general maritime law and the Jones Act.
Mr. Martin's second amended complaint included claims against
manufacturers and distributors of products allegedly containing
asbestos, and included negligence, strict liability in tort, and
a claim under the Jones Act. He asserted no claims under federal
law other than claims subject to the Savings to Suitors clause.
Mr. Martin contended that he used asbestos drilling mud
additives during his employment with CRC Mallard, the Defendant
listed as Mr. Martin's Jones Act employer, and Defendants had
produced no evidence to the contrary.
Accordingly, because the complaint in this case asserted a claim
under the Jones Act, the Court found that the case was
improvidently removed and that the motion to remand should be
granted. Finally, the Court found nothing within the motion to
merit an award of fees to either party as a result of the
removal.
Gregory N. Jones, Esq., Randy J. Bruchmiller, Esq., of Franklin,
Cardwell & Jones in Houston, S. Robert Hammond, Jr., Esq., S.
Robert Hammond, Jr., Esq., in Hattiesburg, Miss., represented
Bob K. Martin.
John Jeffrey Trotter, Esq., and Bernard H. Booth IV, Esq., in
Jackson, Miss., of Adams and Reese, LLP, represented Conoco
Phillips Company.
Jeffrey P. Hubbard, Esq., of Wells, Moore, Simmons & Hubbard in
Jackson, Miss., represented Montello, Inc.
Marcy B. Croft, Esq., of Forman, Perry, Watkins, Krutz & Tardy
in Jackson, Miss., represented Union Carbide Corporation.
ASBESTOS LITIGATION: Summary Judgment Upheld in Ericsson's Favor
----------------------------------------------------------------
The U.S. Court of Appeals, Seventh Circuit, upheld a district
court's ruling, which granted summary judgment in favor of
Ericsson, Inc., in an asbestos-related lawsuit filed by Sycamore
Industrial Park Associates.
The case is styled Sycamore Industrial Park Associates,
Plaintiff-Appellant v. Ericsson, Inc., Defendant-Appellee.
Circuit Judges Joel Martin Flaum, Ann Clair Williams, and Diane
S. Sykes entered judgment in Case No. 08-1118 on Oct. 20, 2008.
In 1985, Sycamore bought an industrial property with fixtures,
including a boiler-based steam heating system, from Ericsson.
Before it sold the property, Ericsson installed a new natural
gas heating system, but it left the old heating system in place.
Several years after purchasing the property, Sycamore discovered
that the boilers, pipes, and various pipe joints that make up
the old system were insulated with asbestos-containing material.
Sycamore sued to force Ericsson to remove and dispose of the
abandoned asbestos insulation and reimburse Sycamore for alleged
response costs it has incurred or will incur in removing the
asbestos insulation. This action arose under the Comprehensive
Environmental Response, Compensation, and Liability Act and
under the Resource Conservation and Recovery Act.
On Jan. 9, 2008, the district court granted Ericsson's motion
for summary judgment. The district court found that Ericsson
abandoned the asbestos insulation in place at the property prior
to sale.
In addition, the district court held as a matter of law that the
abandonment of the boiler-based heating system and the
subsequent sale of the Sycamore property was not "handling,
storage, treatment, transportation or disposal of any solid or
hazardous waste," as required by RCRA. Sycamore appealed the
district court's decision on the CERCLA and RCRA claims.
The Appeals Court held that:
-- Sale property with abandoned asbestos insulation was
not disposal of hazardous substance by responsible
party under CERCLA, and
-- Sale of property with abandoned asbestos insulation was
not handling, storage, treatment, transportation, or
disposal of hazardous waste under RCRA.
The Appeals Court affirmed the district court's grant of summary
judgment.
William J. Anaya, Esq., Hal R. Morris, Esq., of Arnstein & Lehr
LLP, in Chicago, represented Sycamore Industrial Park
Associates.
Stephen R. Ayres, Esq., of Cheely, O'Flaherty & Ayres in
Chicago, represented Ericsson, Inc.
ASBESTOS LITIGATION: Appeal to Craig Suit Ruling Vacated in Nov.
----------------------------------------------------------------
The U.S. Court of Appeals for Veterans Claims vacated the Board
of Veterans' Appeals decision, which denied William R. Craig's
claims for service connection for Barrett's esophagus claimed as
the result of asbestos exposure; for nasopharyngeal cancer,
claimed as a result of asbestos exposure; and for hypertension.
The case is styled William R. Craig, Appellant v. James B.
Peake, M.D., Secretary of Veterans Affairs, Appellee.
Judge Donald L. Ivers entered judgment in Case No. 07-1708 on
Nov. 6, 2008.
The pro se appellant, Mr. Craig, served on active duty from
December 1958 to February 1962. His discharge examination did
not reveal treatment for Barrett's esophagus, nasopharyngeal
cancer, or hypertension. Upon separation from service, his blood
pressure was recorded at 110/72.
In August 2002, Mr. Craig submitted a claim for service
connection for several disabilities including Barrett's
esophagus claimed as the result of asbestos exposure,
nasopharyngeal cancer, and hypertension. His application noted
that he has been treated by Dr. Medinia since March 1981 in
Houston, for skin and throat cancer.
Mr. Craig was diagnosed with Barrett's esophagus, status post
cancer of the nasopharynx, and hypertension. The VA regional
office (RO) denied his claims in October 2002.
In the decision on appeal, the Board denied Mr. Craig's claims
because his claimed disabilities were not "shown to have
originated during active service."
On appeal before the Court, Mr. Craig argued that VA had not
obtained all of his medical records from Dr. "[Medinia]" who
performed his neck surgery in 1984 at the "MD Anderson Hospital,
in Houston, Texas." The Secretary contended that remand was
required because Mr. Craig's Social Security Administration
(SSA) records were not requested.
Accordingly, the Court vacated the April 30, 2007, Board
decision and the matters were remanded for further adjudication
consistent with this decision
On remand, Mr. Craig is free to submit additional evidence and
argument, including the arguments raised in his brief to this
Court and the Board must consider any such evidence or argument
submitted.
ASBESTOS LITIGATION: Lois Robinson's Case Filed v. 33 Companies
----------------------------------------------------------------
Lois Robinson, on Dec. 3, 3008 and on behalf of her deceased
husband, Warren Robinson, filed an asbestos-related lawsuit
against 33 defendant corporations in Jefferson County District
Court, Tex.
Among the 33 defendants are A.O. Smith Corporation, A.W.
Chesterton Company, Bechtel Group Inc., Westinghouse, Fluor
Corporation, General Electric Company, Georgia-Pacific
Corporation, Honeywell International Inc., Ingersoll-Rand
Company Limited, 3M Company, Owens-Illinois Inc., Union Carbide
Corporation, Uniroyal and Zurn Industries.
In the suit, Mrs. Robinson claimed Mr. Robinson worked as an
operator and in various other roles where he was required to
work with and around asbestos and asbestos containing products.
She claims the corporations were negligent because they failed
to adequately warn of the dangers of asbestos exposure.
Mrs. Robinson seeks unspecified exemplary and actual damages,
plus prejudgment and post-judgment interest at the legal rate,
cost and other relief to which she may be entitled.
Bryan O. Blevins Jr., Esq., of Provost and Umphrey Law Firm in
Beaumont, Tex., represents Mrs. Robinson.
Case No. A182-804 has been assigned to Judge Bob Wortham of the
58th District Court.
ASBESTOS LITIGATION: GBP35,000 Penalty Issued to Dean, Director
----------------------------------------------------------------
The Dunfermline Sheriff Court fined a total of GBP35,000 to Dean
Entertainments (GBP28,000) and one of its directors Edward Dean
Melville (GBP7,000) for exposing at least 15 tradesmen to
asbestos while refurbishing a nightclub in Dunfermline,
Scotland, h&v news reports.
Both parties pleaded guilty to breaching the Health and Safety
at Work Act.
Dean Entertainments had contracted Ainslie Homes to act as
Principal Contractor for the project. Both Ainslie Homes and
Dean Entertainments share the same business address and Mr.
Melville is a director for both companies.
A Health and Safety Executive spokesman said, "This was a major
refurbishment, which required the involvement of a number of
different trades. The work included the demolition of existing
partitions, the installation of a new stairway, an extension to
an existing mezzanine level and the installation of a new lift.
All of this work involved significant disturbance of the fabric
of the building."
Jim Skilling, HSE's principal inspector, said, "This was a very
serious incident which allowed a significant number of tradesmen
to be exposed to airborne asbestos fibers over an extended
period.
"Dean Entertainments and Mr. Melville failed to establish if
asbestos was present within the Ballroom prior to allowing work
to commence, despite being informed on at least two occasions
that a survey had to be carried out. Mr. Melville was unable to
provide any evidence to support his argument that there was no
asbestos in the building.
"He also failed to deal correctly with concerns, voiced on a
number of occasions, from those working within the building
about the possible presence of asbestos. He used a contractor,
who did not have an asbestos removal license, to remove almost a
quarter of a ton of material from the Ballroom site. Even then
the material was identified on a waste disposal site document as
asbestos."
The case follows a serious incident in which tradesmen were
exposed to airborne asbestos fibers over almost two months
during a major refurbishment of the former Ballroom nightclub in
2005.
ASBESTOS LITIGATION: Woolworths Fined GBP40T for Safety Breaches
----------------------------------------------------------------
The Exeter Crown Court in Exeter, Devon, England, issued a
GBP40,000 penalty to retailer Woolworths Group PLC for exposing
to asbestos staff at two Devon stores, BBC News reports.
The Court heard that asbestos fibers covered stock and shelves
in two branches when a company was brought in to remove asbestos
ceiling tiles. Staff had to use dustpans and brushes to clear up
the carcinogenic dust.
Woolworths and Essex-based LCH Contract Ltd each admitted two
health and safety at work charges. LCH was fined a total of
GBP100,000.
Woolworths was fined GBP20,000 and ordered to pay GBP20,000
costs while LCH were fined GBP50,000 and ordered to pay a
further GBP50,000 in costs.
The court heard that LCH was supposed to erect ceiling to floor
polythene tents before removing the asbestos tiles from the
branches in Bideford and Tiverton in April 2004. However, the
court was told that they failed to do this.
Lesley Collins, assistant manager at the Tiverton store, who
stayed overnight as the work was carried out, recalled "dust
throughout the shop, thick coating on stock and dust visible in
the store." She said she was told to open up the branch to the
public the next morning.
The court was told that staff was exposed to the dust for 10
days and that samples revealed asbestos dust was still present
in the two stores three months later.
Judge John Neligan was told it was impossible to say if
Woolworths staff in other branches around the country where this
work was done, had been exposed in the same way.
Woolworths said it had offered staff medical help and counseling
and that it had spent GBP2.7 million employing an expert company
called Particle Analysis Ltd. to get rid of the asbestos.
The court heard that LCH had lost GBP6 million in similar
contracts as a result of these proceedings.
ASBESTOS LITIGATION: Hardie Director Upholds Stand in ASIC Case
----------------------------------------------------------------
Former James Hardie Industries N.V. director Michael Brown, on
Dec. 9, 2008, stood by his evidence that the Company's board had
not approved an allegedly misleading 2001 media release about
asbestos compensation, after a 2004 letter on the subject from
him to his fellow directors was read out in the New South Wales
Supreme Court, The Sydney Morning Herald reports.
The signed letter said, "I participated in the deliberations
leading to the decision taken by the board of directors of James
Hardie Industries Limited on Feb. 15, 2001, and in the decision
itself, to approve the terms of the press release made by JHIL
to the Australian Stock Exchange Ltd. on that day announcing the
establishment of the [Medical Research and Compensation]
Foundation."
Mr. Brown told the court that in 2001 "the board approved the
establishment of the foundation and, in principle, the effecting
resolutions to achieve that, but did not literally pass each one
of those resolutions."
Mr. Brown replied "no" when ASIC's barrister, Tony Bannon, SC,
said, "This is the position isn't it, you told your fellow
directors privately in that document that you did approve the
press release but when it comes to the court you seek to give
the impression that you don't recall, that's true, isn't it?"
When Mr. Bannon suggested he wanted to give the impression he
had not approved the press release, Mr. Brown said, "I stand by
my evidence that I have already provided to the court."
Mr. Bannon has repeatedly failed to persuade Justice Ian Gzell
to accept the tender of documents dated after Feb. 15, 2001,
relating to the release. On Dec. 9, 2008, the judge reserved his
decision on whether he would admit the 2004 letter into
evidence.
Mr. Brown's letter was dated Sept. 26, 2004, five days after the
publication of the final report by David Jackson, QC, from his
special commission of inquiry into an estimated AUD1.5 billion
shortfall in the foundation's funding.
Australian Securities and Investments Commission claims the
media release was "not accurate, misleading and deficient"
because it "conveyed there was no question of doubt as to the
sufficiency of funds" set aside in the foundation for asbestos
compensation.
ASBESTOS LITIGATION: Florida Tech Fined $10T for Safety Breaches
----------------------------------------------------------------
The Occupational Safety and Health Administration issued a
US$10,500 penalty to Melbourne, Fla.-based Florida Institute of
Technology for exposing workers to asbestos during routine
maintenance in a college dormitory, FLORIDATODAY.com reports.
The original penalty was US$12,000, but it was reduced because
of the size, history and good faith of the school. Florida Tech
said it plans to contest the penalties before the Occupational
Safety and Health Review Commission.
OSHA conducted an investigation after maintenance worker Robert
Malfara complained that he and another worker were exposed to
asbestos floor tiles while remodeling a student dormitory on the
Melbourne campus. The workers chipped tiles off the floor and
broke them up without respirators or any containment while
students were milling about.
Investigators found employee exposure records were not made
available to them upon request, and the presence of presumed
asbestos in buildings built prior to 1980 had not been
documented.
This is the first time the school has been fined for asbestos
violations, but not for workplace-safety violations.
During the winter of 2008, The Florida Department of
Environmental Protection last winter fined the school nearly
US$180,000 for exposing staff and students to hazardous
chemicals.
ASBESTOS LITIGATION: Hazard Found in N.Z.'s Muriwai Beach Dunes
----------------------------------------------------------------
Muriwai park manager Scott de Silva discovered asbestos along
New Zealand's Muriwai Beach on Dec. 10, 2008, stuff.co.nz
reports.
The asbestos was found along with broken glass and steel in a
dune by the northern car park, where the old surf life-saving
clubrooms were based many years ago.
Mr. de Silva says he noticed what he thought was asbestos, and
had a professional confirm it. He said, "An asbestos approved
handler is dealing with it. Asbestos is serious and a concern to
health, but the professional said in its current form it was of
no risk."
Material removed was taken to an approved asbestos landfill. A
section of the beach was closed off because of the machinery and
material.
ASBESTOS LITIGATION: Bethlehem Site Hazard Cleanup to Cost $7.4M
----------------------------------------------------------------
Asbestos removal at the vicinity of the former Bethlehem Steel
Corp. headquarters in Bethlehem, Pa., is estimated at US$7.4
million, The Seattle Times reports.
Ashley Development Corp. says it is trying to have the former
headquarters declared a blighted structure. That would open up
sources of funding to help with a condominium project in the
Martin Tower.
Ashley has received city approval to build 266 condos in the
tower building and 580 town houses around it, an estimated
US$300 million project.
Bethlehem economic and community development director Tony Hanna
says Ashley did not originally expect to seek public funds.
Several parts of Bethlehem are already designated as blighted,
including its Center City area.
ASBESTOS LITIGATION: Hazard Found During Auckland Fire Aftermath
----------------------------------------------------------------
Asbestos was found during an investigation of a Dec. 8, 2008
fire in the Mitre 10 hardware shop in Onehunga, which is
southwest of the Auckland, New Zealand, city center, NZPA
reports.
Fire Safety Officer Russell Dickson told NZPA that on Dec. 9,
2008, health inspectors checked the building, built in the
1960s, and said there was asbestos present.
The owners had organized a contamination squad to ensure the
outside of the building was safe and firefighters were dampening
down the area to prevent the asbestos drying and becoming
airborne, Mr. Russell said.
Around 80 firefighters and more than 20 fire appliances battled
the blaze for three hours.
The building had a very high fire loading because of the
contents of the hardware shop and fire engineers were constantly
pushing for sprinkler systems in such buildings. There were no
sprinklers and the fire razed very quickly until it met a solid
concrete fire wall, which essentially stopped it.
The fire alarm was activated but it was not connected to the
Fire Service and the alarm was raised through multiple 111
calls.
ASBESTOS LITIGATION: Awareness Center Fights Asbestos Initiative
----------------------------------------------------------------
The Mesothelioma and Asbestos Awareness Center is opposing any
legislative initiative, which would leave workers in danger of
asbestos, TransWorldNews reports.
MAAC asserts that among the tasks President George W. Bush and
his administration are trying to accomplish before President-
elect Barack Obama assumes the White House in January 2009 is
legislation that would weaken future regulation of asbestos.
The bill attempts to complicate the government process of
regulating certain hazardous materials, including asbestos, to
the point where regulations from government will be unlikely
given the amount of time and resources which would need to be
devoted to enact bans and limits.
Public health who has examined the bill say that the additional
steps needed to enact regulations would slow down the process to
the point where additional deaths and illnesses are certain.
Among the bill's opponents are Mr. Obama and a large contingent
of the incoming administration. The bill would benefit
corporations who understand that regulations would be expensive
and decrease profit margins. The bill would compromise worker
safety, leaving many to be exposed to potentially life
threatening toxins like asbestos.
The majority of asbestos products were banned in the late 1970s
by the Consumer Product Safety Commission and Environmental
Protection Agency.
The Mesothelioma and Asbestos Awareness Center is a web resource
for relevant and current information concerning mesothelioma and
thoracic disease.
ASBESTOS LITIGATION: Asbestos Found at Bedroc Bldg. in Lyndhurst
----------------------------------------------------------------
Asbestos has been found at the former Bedroc Contracting
building in Lyndhurst, N.J., the Leader reports.
On Dec. 9, 2008, a group of union members from Laborers Local 78
stood outside a building on Orient Way in the industrial section
of Lyndhurst with a sign reading "Asbestos Kills."
The protesters chose this particular location because a group of
seemingly non-unionized workers appeared to be dismantling
portions of a roof near the iconic red letters that spell out
Bedroc Contracting.
As soon as township officials became aware of potential asbestos
abatement activities at the former Bedroc Contracting building,
they took action. Mayor Richard DiLascio and Chief of Police
James O'Connor asked the building inspector to investigate,
Mayor DiLascio said.
As of press time, the township determined that the Company
conducting the work had a permit from the New Jersey Department
of Environmental Protection.
At about the same time, the township began its investigation,
the Occupational Safety and Health Administration opened it own
investigation at the site. The federal agency was "responding to
a complaint," according to Leni Fortson, a spokeswoman.
From the perspective of the union representatives, the work on
the building was not being conducted safely. "They should have
on hard hats," said Ramon Woodcock, who gathered with about nine
others from the hazardous waste, asbestos and lead workers
union.
Also lacking, from Mr. Woodcock's perspective, was a barrier to
prevent people from falling off the roof and plastic coverings
on the windows overlooking the roof. The building, still
occupied by tenants, was sold to Hackensack-based Russo
Development in September 2008.
The company had not received any official notifications about
problems at the site, according to Ed Russo, president of Russo
Development.
As per the sales agreement, the former property owner was
required to do the demolition of the old building and had
arranged for the work to be done by Bedroc Contracting, Mr.
Russo said.
The township has its own asbestos contamination issue in the
vicinity of the industrial zone where the former Bedroc building
sits.
Earlier in 2008, township officials and the DEP were notified
that asbestos was found on the soil near the newly completed
recreation fields.
ASBESTOS LITIGATION: No Signs of Harmful Exposure at Fort Bragg
----------------------------------------------------------------
Tests show no signs of harmful exposure to asbestos in about 10
soldiers who handled floor tiles at the Fort Bragg barracks in
Fayetteville, N.C., The Fayetteville Observer reports.
Bryan Sleigh, the 82nd Airborne Division's top doctor, on Dec.
9, 2008, said that the levels of exposure over the past three
weeks were not harmful.
Col. Mark R. Stammer, commander of the 82nd's 1st Brigade Combat
Team, said on Dec. 3, 2008, that air testing for the storage
room and surrounding areas revealed no hazardous levels of
asbestos.
The storage room, located in a barracks on Grave Street at
Gruber Road, does not share ventilation with other areas of the
barracks.
The Army will monitor the health of soldiers who may have been
exposed. Those tests will come once a year for five years, and
every five years thereafter.
ASBESTOS LITIGATION: Supreme Court Moves Richards Case to Maine
----------------------------------------------------------------
The Texas Supreme Court has moved Austin Richards' asbestos-
related lawsuit to Maine, ruling that Mr. Richards, who lived in
Maine, cannot sue 21 firms in Texas to recover damages quickly,
Business Insurance reports.
Litigating in Texas against the companies, including General
Electric Co. and Ingersoll Rand Corp., would violate Texas civil
code, which was modified in 2003 to assure that cases were tried
in the most convenient forum, the state's high court ruled 8-0
on Dec. 9, 2008.
Mr. Richards, who worked more than 30 years in Maine as a mason
and routinely handled piping insulation made from asbestos, was
diagnosed with mesothelioma in December 2005. He later sued the
21 defendants, all of which manufactured or sold asbestos
materials, in Texas state court in Dallas. Three of the
defendants are based in Texas. Seven defendants sought to
dismiss the case.
However, the Richards estate argued that if the case were moved
to Maine, the defendants likely would ask a Maine court to move
the case again to a U.S. District Court in Philadelphia, which
is overseeing multidistrict asbestos litigation.
Mr. Richards argued that moving the case to the multidistrict
court would significantly slow the progress of his case and
prevent him from recovering damages before he died. He died
before the case was argued orally before the Texas Supreme Court
in September 2008.
The Texas trial court judge asked the defendants whether they
would agree to not seek to move the case to the multidistrict
court if he moved the case to Maine. The defendants refused to
waive those rights, and the trial judge ultimately refused to
move the case to Maine. Three defendants, General Electric,
Ingersoll-Rand, and Warren Pumps Llc, appealed.
In In Re General Electric Co. et al., the state Supreme Court
overturned the lower court for several reasons.
The case was remanded to the trial court with instructions to
grant the defendants' motion to move the case to Maine.
ASBESTOS LITIGATION: Whittingham Hospital Guards Fear Exposure
----------------------------------------------------------------
Security guards at the Whittingham Hospital, a former mental
hospital near Preston, England, express fears that they may be
getting exposed to asbestos, the Lancashire Evening Post
reports.
Whittingham Hospital, which once housed 3,500 patients, is now
derelict and earmarked for a housing development. It is owned by
the Home and Communities Agency (HCA), formerly known as English
Partnerships.
Tony Edmonds a 47-year-old security guard at the hospital, and
colleagues Pat Sherlock, Malcolm McEwan and Frank McCleave, are
taking part in the strike.
They say they are being asked to patrol areas where they may be
at risk of falling debris and asbestos. They are refusing to
patrol the affected areas until bosses can assure them it is
safe.
The night security men, who work for Profile Security, also
claim the derelict building is a target for thieves on the hunt
for lead and piping.
Mr. Edmonds said, "There are signs up warning people about
asbestos and falling debris and they obviously don't want anyone
to go near it. But us guards are expected to patrol the
courtyard of the hospital and the area behind the perimeter
fence and we don't want to do it unless we can be assured it
won't affect our health."
Phil Moseley, managing agent for former Whittingham Hospital,
who works for TEP, consultants for HCA, said, "HCA has a very
stringent policy on asbestos in line with current legislation.
As part of that, there is a requirement for an asbestos
management plan to be prepared for the whole site. That plan is
informed by the asbestos surveys carried out by HCA consultants.
The last survey for Whittingham Hospital was conducted in June
2008 by White Young Green."
Profile Security did not comment on the issue of its security
guards going on strike.
ASBESTOS LITIGATION: York Benefit Raises GBP2,570 for Victims
----------------------------------------------------------------
Arnie Gomersall, a former York, England, Carriageworks employee
who has lost ex-colleagues to asbestos, has raised a total of
GBP2,570 for the York Asbestos Support Group, The Press reports.
A sell-out benefit gig organized by the 60-year-old Mr.
Gomersall, held at the Crescent Working Men's Club, featured
York-based Lynyrd Skynyrd tribute band, Aynt Skynyrd, in which
Mr. Gomersall plays drums.
Mr. Gomersall said, "There were people from as far away as
Keighley. It was brilliant. I was delighted. Everybody enjoyed
it. We auctioned off two guitars donated by Mor Music, of
Fossgate, and raffled off a desk top diary donated by Wallis
Business Services and a family day ticket donated by Waterworld
at Monks Cross."
The Press reported in November 2008 how more than 20 of Mr.
Gomersall's former Carriageworks colleagues had died from
mesothelioma, including Dougie Peacock, from Woodthorpe, who
died from the illness in 2005.
There was widespread exposure to the deadly asbestos dust at the
factory in Holgate Road in the 1960s, 1970s and even the 1980s,
and scores of former workers have died from mesothelioma.
Mr. Gomersall said he had been left with the fear that he too
could one day fall victim to the disease, fearing the worst
every time he caught a cold.
ASBESTOS LITIGATION: Solihull Engineer's Death Linked to Hazard
----------------------------------------------------------------
An inquest heard that the death of Solihull, England, mechanical
engineer, David Walker, was linked to exposure to asbestos, the
Birmingham Mail reports.
The 75-year-old Mr. Walker, who had previously been employed at
Lucas in Formans Road, Sparkhill, died from a tumor after
working at one of Birmingham's asbestos "hot spots." He died at
a Marie Curie hospice in May 2008.
Consultant pathologist Dr. Simon Trotter told the inquest that
Mr. Walker had a malignant tumor and that a contributory factor
in his death was occupational exposure to asbestos.
Deputy coroner Christopher Ball said that in certain
"vulnerable" individuals, even minimal exposure to asbestos can
trigger the process, although not everyone who has worked with
asbestos will die from an asbestos-related disease.
Mr. Ball said the Formans Road factory was a hot spot for the
problem and others included Metro Cammell and Cadbury's where,
during the war, gas masks with filters containing asbestos had
been made.
Mr. Ball recorded that Mr. Walker died from an industrial
disease.
ASBESTOS LITIGATION: Split Rulings Issued in Bondex Int'l. Case
----------------------------------------------------------------
The U.S. District Court, Northern District of Ohio, Eastern
Division, issued split rulings in an insurance-related lawsuit
involving asbestos styled Bondex International, Inc., et al.,
Plaintiffs v. Hartford Accident and Indemnity Company, et al.,
Defendants.
District Judge Ann Aldrich entered judgment in Case No. 1:03-CV-
1322 on Dec. 1, 2008.
Before this court were motions for summary judgment on the
various claims among the parties. The following motions filed by
plaintiffs Bondex International, Inc., Republic Powdered Metals,
Inc.'s, and RPM, Inc. were pending:
-- The plaintiffs' motion for partial summary judgment
against defendant Century Indemnity Company;
-- The plaintiffs' motion for partial summary judgment
against defendant Columbia Casualty Company;
-- The plaintiffs' motion for partial summary judgment
against defendant Continental Casualty Company;
-- The plaintiffs' motion for partial summary judgment
against Allstate Insurance Company;
-- The plaintiffs' motion for partial summary judgment
against defendant Mt. McKinley Insurance Company;
-- The plaintiffs' motion to dismiss Mt. McKinley's
amended counterclaim; and
-- Third party defendants Glenn Bowers' and Bowers Orr
LLP's motion to dismiss Mt. McKinley's amended
counterclaim.
The following motions filed by the defendants were also pending:
-- Century's motions for summary judgment against the
plaintiffs, which are joined by Columbia and
Continental;
-- Continental and Columbia's motion for partial summary
judgment against the plaintiffs;
-- Allstate's motion for summary judgment against the
plaintiffs; and
-- Mt. McKinley's motion for summary judgment against the
plaintiffs, joined by Columbia and Continental.
In addition, third party defendants United States Fidelity and
Guaranty Company and Travelers Casualty and Surety Company had
filed a motion for summary judgment wherein they sought
dismissal of all claims asserted against them.
The court denied the plaintiffs' motions for summary judgment
and granted the defendants' motions for summary judgment.
Because the claims against USF & G and Travelers were contingent
upon the plaintiffs' success against the defendants, USF & G and
Travelers' motion for summary judgment was also granted. This
court also granted the plaintiffs' motion to dismiss Mt.
McKinley's amended counterclaim.
Finally, this court entered judgment as a matter of law on all
remaining claims and counterclaims and dismissed the action.
Consequently, the remaining motions were dismissed as moot.
This case concerned insurance policies issued by Allstate,
Century, Continental, Columbia, and Mt. McKinley or their
predecessors in interest and whether those policies have been
exhausted by claims filed against RPM, Bondex, and Republic for
asbestos-related personal injuries.
The central issue raised in this case was whether asbestos-
related claims arising out of products manufactured by The
Reardon Company prior to Reardon's acquisition by what would
become RPM are subject to coverage limits in insurance policies
issued by the defendants.
The plaintiffs alleged in their complaint that because claims
arising out of materials manufactured by Reardon prior to its
acquisition were not claims arising out of materials
manufactured by the policies' "Named Insured" or "Insured," the
limits in the policies did not apply and the plaintiffs were
entitled to coverage without limit on claims arising out of
materials manufactured by Reardon prior to its acquisition.
ASBESTOS ALERT: $15T Penalty Imposed on Willamette, Hoviss Build
----------------------------------------------------------------
The Oregon Department of Environmental Quality issued a
US$15,000 penalty to contractors Willamette Builders Group LLC
and Hoviss Build Group LLC for performing unlicensed asbestos
abatement projects at Sun County Mobile Home Park in Bend, Ore.,
the Daily Journal of Commerce reports.
Willamette and Hoviss were also cited for failing to deposit
waste material containing asbestos at a DEQ-approved disposal
site.
The property owner contracted the two firms for an asbestos
survey at the mobile home park on April 22, 2008. The survey
detected asbestos-laden paint on three of the units' roofs.
Employees from Hoviss and Willamette demolished the units'
roofs, causing the contaminated paint to chip off and become
friable, meaning the paint was more likely to release asbestos
fibers into the air.
Hoviss and Willamette have 20 days to appeal the penalty. DEQ
also fined Central Oregon Investors LLC, the owner of Sun
Country Mobile Home Park, for allowing unlicensed workers to
perform an asbestos abatement project. COI has appealed the
US$16,651 penalty.
COMPANY PROFILE
Willamette Builders Group
1750 SW Harbor Way Ste STE240
Portland, Ore.
http://www.wbgroup.com
COMPANY PROFILE
Hoviss Build Group Llc
780 Nw York Dr Ste 204
Bend, Ore.
Contact Phone: (541) 312-9638
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asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
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Copyright 2008. All rights reserved. ISSN 1525-2272.
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