/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090619.mbx C L A S S A C T I O N R E P O R T E R Friday, June 19, 2009, Vol. 11, No. 120 Headlines ALCOA INC: Faces Pa. Lawsuit Over Alumina Refinery in Australia BEAZER HOMES: Aug. 13 Hearing Set for $30.5M Ga. Suit Settlement BLUE CROSS: Faces California Litigation Over "Rescissions" BROCADE COMMS: Dismissal of Calif. Amended Complaint Appealed BROCADE COMMS: Settlement of Securities Suit Approved on Jan. 23 CHINESE DRYWALL: La. Court, Judge Selected For Several Lawsuits C.R. ENGLAND: Plans to Appeal Magistrate Order in OOIDA Lawsuit DYNAMEX INC: Electronic Discovery in Calif. Labor Suit Ongoing DYNAMEX INC: Lawsuit by Independent Contractor Drivers Stayed FLORIDA SCHOOL: Ex-Employee Denies Allegations in Abuse Lawsuit FMC CORP: July 14 Hearing Set for Pa. Antitrust Suit Settlement GOOGLE INC: Sept. 14 Hearing Set for $20M Adwords Settlement HOVNANIAN ENTERPRISES: Bid to Junk Amended "Sewell" Suit Pending HOVNANIAN ENTERPRISES: In Talks to Settle Securities Fraud Suit IOVATE HEALTH: Baum Hedlund Files Hydroxycut Consumer Fraud Suit KB HOME: Faces Calif. Suit For Allegedly Rigging Home Appraisals MICHAEL BAKER: Reaches Settlement in Securities Fraud Litigation MICHAELS STORES: Faces Lawsuit by Former Hourly Retail Employees MICHAELS STORES: To Defend "Adams" Wage and Hours Suit in Calif. NOVAGOLD RESOURCES: N.Y. Court Nixes Most Claims in Stock Suit OPTIONABLE INC: Judge Refuses to Revive Natural Gas Options Suit PENNSYLVANIA: DPW Sued Over Policy for Mentally Retarded Adults PRESSTEK INC: July 20 Hearing Set for $1.25M Lawsuit Settlement SPRINT SPECTRUM: Treo 600 Wi-Fi/Bluetooth Accessory Suit Settled TAKE-TWO INTERACTIVE: Appeal to Nixed GTA Lawsuit Deal Pending TAKE-TWO INTERACTIVE: Consolidated Securities Suit Still Pending TAKE-TWO INTERACTIVE: EA Buyout Offer Suit Deal Pending Approval TAKE-TWO INTERACTIVE: "Maulano" Securities Suit Remains Stayed TORO CO: Sept. '09 Status Conference Set for Consumer Fraud Suit UNITED KINGDOM: Court Says Nuclear Test Veterans Can Sue MoD UNITED PARCEL: Tentatively Settles "Bates" Lawsuit in California VERIFONE HOLDINGS: Calif. Consolidated Securities Suit Pending VERIFONE HOLDINGS: Stockholders Suit Pending in Tel-Aviv, Israel New Securities Fraud Cases OPPENHEIMER AMT-FREE: Stull Stull Files Securities Fraud Lawsuit Asbestos Alerts ASBESTOS LITIGATION: Sealed Air Facing MPERS Case in New Jersey ASBESTOS LITIGATION: Todd Shipyards Faces 535 Claims at March 29 ASBESTOS LITIGATION: Good Shepherd School Settles AHERA Breaches ASBESTOS LITIGATION: Stamp Upholds Ruling in CSX Case on June 4 ASBESTOS LITIGATION: 16 New Cases Filed May 18-22 in Ill. Court ASBESTOS LITIGATION: 11 Actions filed May 25 to 29 in Ill. Court ASBESTOS LITIGATION: Court Issues $10T Fine to United Gilsonite ASBESTOS LITIGATION: Devoy's Widow Seeks GBP1Mil in Payout Claim ASBESTOS LITIGATION: Action v. Vale Inco Europe Ongoing in Wales ASBESTOS LITIGATION: Judge Rules on Radiologists' Case on May 29 ASBESTOS LITIGATION: Vedanta to Raise Bid for Asarco LLC Offer ASBESTOS LITIGATION: Abatement at Deutsche Bank Halted on June 9 ASBESTOS LITIGATION: Korea Gov't. Has 110 Cases from Closed Mine ASBESTOS LITIGATION: Caswell Group Supports Daily Mirror Crusade ASBESTOS LITIGATION: Split Ruling Issued in AstenJohnson Action ASBESTOS LITIGATION: Court OKs Partial Dismissal in Watts Action ASBESTOS LITIGATION: Court Affirms Farrell's Move for New Trial ASBESTOS LITIGATION: Gray's Family Gets $1.2Mil in Compensation ASBESTOS LITIGATION: Charges v. Favorito Dropped in Grace Action ASBESTOS LITIGATION: Derby Machinist's Death Linked to Exposure ASBESTOS LITIGATION: Lancashire Teachers Seek Cleanup in Schools ASBESTOS LITIGATION: Hazard Dumped at Nanty Glo Recreation Spot ASBESTOS LITIGATION: Court Issues Ruling in Eickleberry Lawsuit ASBESTOS LITIGATION: Rulings Issued in Bankston, Brown Lawsuits ASBESTOS LITIGATION: Court Issues Split Ruling in Howard Action ASBESTOS LITIGATION: Court Issues Split Ruling in Silvestro Suit ASBESTOS LITIGATION: Appeal Court OKs Ruling in Nicholas Lawsuit ASBESTOS LITIGATION: PDG Notes $4M Reduction in Cleanup Revenues ASBESTOS LITIGATION: Inquest Rules on Cotswold Resident's Death ASBESTOS LITIGATION: NERA Bares Filing, Settlement Trends Report ASBESTOS LITIGATION: Granger Suit v. Chevron Filed in Jefferson ASBESTOS LITIGATION: Reynolds Gets $8.4MM Award in Hamilton Case ASBESTOS LITIGATION: AG Files Contamination Lawsuit v. Decoulos ASBESTOS LITIGATION: Inquest Rules on Addingham Resident's Death ASBESTOS LITIGATION: Osborne's Case v. Texaco, Chevron Underway ASBESTOS LITIGATION: Cleanup Ongoing at Fountaindale, E. Russell ASBESTOS LITIGATION: SUNY Medical Work Delayed on Asbestos Fears ASBESTOS LITIGATION: Lawyer Cites World Bank Report's Importance ASBESTOS LITIGATION: CAG Seeks More Info on BoRit Asbestos Site ASBESTOS LITIGATION: Pa. Court Vacates Ruling in Daley's Lawsuit ASBESTOS LITIGATION: New Trial Ordered in Nolan v. Weil-McLain ASBESTOS LITIGATION: Appeal Court Upholds Ruling in Ledaura Case ASBESTOS LITIGATION: Casella Site to Accept Waste Until Dec. 31 ASBESTOS LITIGATION: EPA Health Emergency Declared in Mont. Site ASBESTOS LITIGATION: Inquest Rules on Berkeley Scientist's Death ASBESTOS LITIGATION: John Chick Released From Prison Last May 21 ASBESTOS LITIGATION: Davison County Accepts $11,340 Cleanup Bid ASBESTOS LITIGATION: LVI Disputes Cambria's $34.1Mil Cleanup Bid ASBESTOS LITIGATION: Asbestos at Wallaga Lake Town to be Removed ASBESTOS LITIGATION: Asbestos, Other Hazards Found at Swannanoa ASBESTOS LITIGATION: U.K. Locals Protest Waste Plant's Extension ********* ALCOA INC: Faces Pa. Lawsuit Over Alumina Refinery in Australia --------------------------------------------------------------- Alcoa, Inc. is facing a purported class-action lawsuit in Pennsylvania over its alumina refinery in Wagerup, Australia, Narelle Towie of PerthNow reports. The suit was filed one behalf of residents living near the refinery, which is 125km south of Perth. It is being led by health crusader Erin Brockovich, according to PerthNow. The company is accused of knowingly, negligently and recklessly operating its factory and poisoning surrounding communities with toxic emissions, reports PerthNow. PerthNow reported that sick residents claim they suffer from uterine cancer, cervical cancer, breast cancer, leukemia, lymphoma, heart complications, sinus and skin problems, and even death as a result of the pollution from the plant. Court documents refer to an additional 240 past and present residents, who claim they suffer from similar ailments, PerthNow reports. The law firm of Caroselli Beachler McTiernan & Conboy LLC in Pittsburgh filed the class-action suit, which involves more than 10 local residents, according to the PerthNow report. For more details, contact: Caroselli Beachler McTiernan & Conboy LLC 20 Stanwix Street, Seventh Floor, Pittsburgh, PA 15222-4802 Phone: 412-391-9860 or 1-800-222-8816 Fax: 412-391-7453 e-mail: info@cbmclaw.com Web site: http://www.cbmclaw.com BEAZER HOMES: Aug. 13 Hearing Set for $30.5M Ga. Suit Settlement ---------------------------------------------------------------- The U.S. District Court for the Northern District of Georgia will hold a fairness hearing on Aug. 13, 2009 at 4:00 p.m. for the proposed $30.5 million settlement in the matter, "Beazer Homes USA, Inc. Securities Litigation, Master File No. 1:07-cv- 725-CC." Bloomberg News previously reported that Beazer Homes USA, Inc. agreed to pay $30.5 million to settle a class-action suit over allegations it misled shareholders about problems with its mortgage-lending practices that led to a federal investigation (Class Action Reporter, May 7, 2009). Under terms of the settlement, the company denies any wrongdoing, according to a statement by Beazer. The settlement is subject to final approval by Judge Clarence Cooper of the U.S. District Court for the Northern District of Georgia, according to the Bloomberg News report. The company and certain of its current and former executive officers are named as defendants in a putative securities class- action suit filed on March 29, 2007, before the U.S. District Court for the Northern District of Georgia (Class Action Reporter, Feb. 26, 2009). The plaintiffs filed this action on behalf of a purported class of purchasers of Beazer Homes' common stock between July 27, 2006, and March 27, 2007. The complaint alleges that the defendants violated Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by issuing materially false and misleading statements regarding the company's business and prospects because the company did not disclose facts related to alleged improper lending practices in its mortgage origination business. The plaintiffs seek an unspecified amount of compensatory damages. Two additional lawsuits were subsequently filed on May 18 and 21, 2007, before the same district court, asserting similar factual allegations and proposing class periods of July 28, 2005, through March 27, 2007, and March 30, 2005, through March 27, 2007, respectively. The three cases were subsequently consolidated by the court and the court appointed Glickenhaus & Co. and Carpenters Pension Trust Fund for Northern California as lead plaintiffs. On June 27, 2008, the lead plaintiffs filed an Amended and Consolidated Class Action Complaint for Violation of the Federal Securities Laws, which purports to assert claims on behalf of a class of persons and entities that purchased or acquired the securities of Beazer Homes during the period Jan. 27, 2005, through May 12, 2008. The Consolidated Complaint asserts a claim against the defendants under Section 10(b) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder for allegedly making materially false and misleading statements regarding the company business and prospects, including, among other things, alleged misrepresentations and omissions related to alleged improper lending practices in the company's mortgage origination business, alleged misrepresentations and omissions related to improper revenue recognition and other accounting improprieties and alleged misrepresentations and omissions concerning the company's land investments and inventory. The Consolidated Complaint also asserts claims against the Individual Defendants under Sections 20(a) and 20A of the U.S. Exchange Act. The lead plaintiffs seek a determination that the suit is properly maintained as a class action, an unspecified amount of compensatory damages and costs and expenses, including attorneys' fees. On Nov. 3, 2008, the company and the other defendants filed motions to dismiss the Consolidated Complaint. Briefing of the motion was expected to be completed in March 2009, according to the company's Feb. 9, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2008. The suit is "Eugene Kratz, et al. v. Beazer Homes USA, Inc., et al.," filed in the U.S. District Court for the Northern District of Georgia, Judge Clarence Cooper, presiding. Representing the plaintiffs are: Lori G. Feldman, Esq. (lfeldman@milberg.com) Milberg LLP One Pennsylvania Plaza, 49th Floor New York, NY 10119-0165 Phone: 212-594-5300 Krissi T. Gore, Esq. (KGore@chitwoodlaw.com) Chitwood Harley Harnes 2300 Promenade II, 1230 Peachtree Street, NE Atlanta, GA 30309 Phone: 404-873-3900 Fax: 404-876-4476 - and - Francis P. Karam, Esq. (karam@bernlieb.com) Bernstein Liebhard & Lifshitz 10 East 40th Street, 22nd Floor New York, NY 10016 Phone: 212-779-1414 Representing the defendants are: Richard W. Clary, Esq. (rclary@cravath.com) Cravath Swaine & Moore 825 Eighth Avenue, Worldwide Plaza New York, NY 10019-7475 Phone: 212-474-1227 BLUE CROSS: Faces California Litigation Over "Rescissions" ---------------------------------------------------------- Blue Cross of California, a subsidiary of WellPoint Inc. faces a purported class-action lawsuit by Wittney Horton of Los Angeles, whose own insurance was canceled after she sought routine medical care. Ms. Horton represents 6,000 similar victims of Blue Cross "rescissions" - retroactive cancellations of insurance policies after a patient gets sick with an expensive-to-treat illness. When Ms. Horton applied for coverage with Blue Cross, she filled out the long and confusing application to the best of her ability. She gave Blue Cross permission to review her medical records. Blue Cross accepted her application and sold her coverage. After Ms. Horton sought routine medical care, Blue Cross scoured Horton's medical record and retroactively cancelled her coverage. Blue Cross said it would have never sold her a policy if the company had known Horton had "polycystic ovaries," a condition not disclosed on her application. The rescission letter was the first time Ms. Horton had ever heard about this condition. Ms. Horton's doctor had suspected she had the condition, noted it in Ms. Horton's medical file, but never told Ms. Horton about it. BROCADE COMMS: Dismissal of Calif. Amended Complaint Appealed ------------------------------------------------------------- The plaintiffs are appealing the dismissal of their second amended class-action complaint against Brocade Communications Systems, Inc. in the U.S. District Court for the Northern District of California. On Oct. 23, 2007, a class-action complaint was filed against Brocade and certain of its former officers and current and former directors. This action was filed in the California Superior Court in Santa Clara County on behalf of individuals who owned Brocade stock between Feb. 21, 2001 and May 16, 2005. The complaint generally alleges that Brocade and the individual defendants breached the duty of disclosure by failing to disclose alleged wrongful conduct, including conduct complained of in the securities litigation, and seeks unspecified monetary damages and other relief against the defendants. On Nov. 26, 2007, this action was removed from State Court to the U.S. District Court for the Northern District of California. On Dec. 3, 2007, Brocade filed a motion to dismiss the action in its entirety on the ground that it is preempted by the Securities Litigation Uniform Standards Act of 1998. On March 6, 2008, Brocade's motion to dismiss was denied and the case was remanded to State Court. On May 29, 2008, Brocade filed a demurrer to the complaint. On July 10, 2008, plaintiffs filed an amended complaint and Brocade filed a demurrer to the amended complaint on Aug. 4, 2008. On Sept. 12, 2008, Brocade's demurrer was granted and the amended complaint was dismissed with leave to amend. On Oct. 15, 2008, plaintiffs filed a second amended complaint. The second amended complaint generally alleges that Brocade and the individual defendants violated or conspired to violate the Racketeering Influenced and Corrupt Organizations Act and seeks unspecified monetary damages and other relief against the defendants. Brocade filed a motion to dismiss the second amended complaint on Nov. 17, 2008. On Jan. 30, 2009, the Court granted Brocade's motion and, on March 3, 2009, the Court dismissed the complaint with prejudice. On May 14, 2009, Plaintiffs filed a notice of appeal, according to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. Brocade Communications Systems, Inc. -- http://www.brocade.com/ -- is a supplier of data center networking solutions that help enterprises connect and manage their information. The company offers a line of data center networking hardware, software products and services. The company is organized in four operating units: The Data Center Infrastructure (DCI), The Server Edge and Storage (SES), The Services, Support and Solutions (S3) and The Files (Files). Brocade products and services are marketed, sold to end-user customers through distribution partners, including original equipment manufacturers (OEMs), distributors, systems integrators, value- added resellers (VARs) and by Brocade directly. BROCADE COMMS: Settlement of Securities Suit Approved on Jan. 23 ---------------------------------------------------------------- The U.S. District Court for the Northern District of California, on Jan. 26, 2009, granted final approval of the proposed $160,098,500 settlement in the matter, "In re: Brocade Securities Litigation, Consolidated Case No. 3:05-CV-02042-CRB," which was filed against Brocade Communications Systems, Inc. Case Background Brocade manufactures, among other things, products designed to help information technology organizations manage and profit from their data assets. Brocade is incorporated under the laws of Delaware with its principal place of business in San Jose, California. KPMG was Brocade's external auditor during a portion of the Class Period. Beginning on May 19, 2005, six putative class-action lawsuits alleging securities laws violations were filed against Brocade and its officers and directors. These actions were consolidated before the U.S. District Court for the Northern District of California, San Francisco Division. In January, 2006, the Court appointed the Arkansas Public Employees Retirement System as Lead Plaintiff and approved APERS' selection of Nix, Patterson & Roach, LLP and Patton Roberts, PLLC as "Lead Counsel" in the action. On April 14, 2006, APERS filed a 105-page Consolidated Class Action Complaint against Brocade, certain officers and directors of Brocade, and KPMG. APERS alleged that Brocade and certain of its officers and directors made false and misleading public statements and omitted material information about Brocade's finances relating to stock option grants and stock option based compensation in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 during the Class Period. APERS alleged that KPMG misled investors by falsely stating that Brocade's financial statements were prepared according to Generally Accepted Accounting Principles and that KPMG had conducted its audits according to Generally Accepted Auditing Standards. Class Action Settlement On May 30, 2008, Brocade reached an agreement in principle with the lead plaintiffs to settle the federal securities class action that would result in a payment by Brocade of $160.0 million to the plaintiff class in exchange for the dismissal with prejudice of all claims against all defendants in the litigation. The parties filed final documentation of the settlement with the Court and the Court granted preliminary approval of the settlement on Nov. 18, 2008. In December 2008, Brocade deposited $160.0 million into an escrow account on behalf of the plaintiff class to be released upon final approval of the proposed settlement by the Federal District Court. On Jan. 26, 2009, the Federal District Court granted final approval of the settlement, according to the company's June 4, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. This suit is "Brocade Securities Litigation, Consolidated Case No. 3:05-CV-02042-CRB," filed in the U.S. District Court for the Northern District of California, San Francisco Division. For more information, contact: Eric Wetzel, Esq. Nix, Patterson & Roach 205 Linda Drive Daingerfield, TX 75638 Phone: 903-645-7333 or 512-474-7514 Fax: 903-645-4415 Web site: http://www.nixlawfirm.com/ - and - In Re Brocade Securities Litigation Settlement Claims Administrator P.O. Box 3266 Portland, OR 97208 Phone: 1-877-507-4370 e-mail: questions@brocadeclasssettlement.com Web site: https://www.brocadeclasssettlement.com/ CHINESE DRYWALL: La. Court, Judge Selected For Several Lawsuits --------------------------------------------------------------- On May 27, 2009, the Multi District Litigation (MDL) Panel heard argument for consolidating thousands of Chinese Drywall lawsuits throughout the United States. In an order that was entered on June 15, 2009, the MDL selected the Eastern District of Louisiana Federal United States District Court. The MDL Panel selected experienced trial Judge Eldon E. Fallon to oversee the cases. A pre-trial conference has been set for July 9, 2009 at 2:00 pm at Judge Fallon's courtroom, Room C-468, United States Courthouse, 500 Poydras Street, New Orleans, Louisiana. 100,000 cases from across the nation are expected to be consolidated for pretrial matters and discovery in the dry wall litigation that has impacted homeowners throughout the country. Florida is expected to have 35,000 cases filed within the next year regarding this problem. "This is the largest construction defect case in the history of the United States and consumers need help now," said Ervin A. Gonzalez, one of Florida's leading lawyers that have been representing hundreds of homeowners with dry wall problems. "By consolidating the cases, the Court will allow for the more efficient and effective handling of these claims. Ultimately it should reduce the expense involved in litigating the cases and should promote global resolutions of these claims." The Court will likely select an Executive committee for the Plaintiffs and Defendants to run the litigation on behalf of all interested parties and soon after require a joint case management plan to be submitted that outlines the parties' pleading and practice schedule as well as the proposed discovery schedule. Given that many of the Defendants are from foreign countries like China and Germany and were served under The Hague Convention requirements, the Court may attempt to simplify and streamline the service and notice requirements on the foreign corporate parties in order to keep the cost of litigation down and to speed up the process. As early as 2007 many homeowners who moved into their newly constructed homes began to notice strong "rotten egg" odors in their homes. They also noticed that many of their new appliances were failing, wiring was corroding, air-conditioning coils needed replacing and they began to experience headaches, sore throats, nose bleeds and upper respiratory problems. According to the Chinese Drywall lawsuit, the culprit is alleged to be defective drywall that emits various sulfide gases and/or other chemicals through "off-gassing" that creates noxious, "rotten egg-like" odors, and causes corrosion of metals including those in air-conditioners, refrigerator coils, microwaves, faucets, utensils, copper tubing, electrical wiring, computer wiring, personal property, electronic appliances, and other metal surfaces and household items. The only solution is to "gut" the homes and remove the toxic drywall down to the studs. "Most homeowners are unable to move out because they cannot afford to pay their mortgages and the rent on another apartment or home. This is a serious matter that requires immediate attention. We will ask the Court to take prompt action in order to make the responsible parties accountable for the harm that they have caused hundreds of thousands to suffer." Gonzalez currently represents homeowners in individual and class action litigation in state and federal court. The homeowners are seeking compensatory damages for the direct and consequential damages caused by the defective drywall that include the cost of repair and replacement of the homeowner's houses and personal property as well as relocation costs and other related economic expenses. The lawsuit is also seeking damages for medical monitoring to provide medical screening. For more details, contact: Ervin A. Gonzalez Phone: 305-476-7491 or 305-298-1888. C.R. ENGLAND: Plans to Appeal Magistrate Order in OOIDA Lawsuit --------------------------------------------------------------- C.R. England has indicated that it intends to appeal an order issued by Magistrate Judge David Nuffer in the matter, "OOIDA vs. C.R. England," which is pending in the U.S. District Court for the District of Utah, Land Line Magazine reports. The Owner-Operator Independent Drivers Association (OOIDA) filed the case against the carrier in June 2002 along with five of its owner-operator members. It was certified as a class action in August 2005 on behalf of owner-operators who entered into a lease agreement with C.R. England from June 1998 to August 2002 (Class Action Reporter, July 9, 2007). Since then, C.R. England has since amended its lease document and required all of its owner-operators to sign a new agreement. In 2007, U.S. District Court Judge Ted Stewart ruled that motor carrier C.R. England violated truth-in-leasing regulations between June 1998 to August 2002 by failing to specify charge- back items and forcing purchase of services in its contracts with owner-operators. The judge also found that the motor carrier had improperly managed truckers' escrow accounts. He ordered C.R. England to provide an accounting of disbursements of truckers' escrow funds, which amount to more than $6.3, according to OOIDA. He gave the motor carrier 30 days from June 20 to file a written proposal regarding the accounting of the truckers' escrow money. "...[T]his is really the first suit that has gone to trial on the merits on the merits -� the merits being the actual wording of the truth-in-leasing regulations..," according to Jim Johnston, president and chief executive of OOIDA. According to a Land Line Magazine report, the court ruled that the motor carrier must provide an accounting of what happened to those funds. In October 2008, Judge Stewart held that individual class members would be entitled to restitution, along with "payment of reasonable interest," if they had positive escrow balances after consideration of any allowed setoffs. Judge Stewart then referred the case to Magistrate Judge David Nuffer to oversee the disposition of individual class members' escrow claims, Land Line Magazine reported. One of the big issues facing the magistrate judge is exactly how much that rate of interest should be. OOIDA suggested that Utah's statutory legal interest rate of 10 percent be used. C.R. England argued that the 91-day Treasury bill rate should apply, according to Land Line Magazine. Land Line Magazine reported that the magistrate judge used neither in his final decision. Judge Nuffer cited a paragraph included in a number of the motor carrier's own leases that use an 18 percent annual "finance charge" on balances overdue in the event that either party to the lease (the driver and C.R. England) defaulted on any amount due. Judge Nuffer ruled that class members who did not enter into leases containing an 18- percent default interest rate are entitled to the regulatory interest rate, or 91-day Treasury bill rate. Those whose leases did contain the 18-percent default rate are entitled to restitution at the rate of 18 percent, or 1.5 percent per month, on escrow funds. According to a court order filed in late May, C.R. England asserted that the 18 percent rate was "not reasonable," Land Line Magazine reports. However, Judge Nuffer wrote that "the Defendant should not be permitted to argue that its own form contract is unreasonable when that rate is applied to the Defendant," reports Land Line Magazine. "Our analysis indicates that class members who leased on with C.R. England between 2000 and the summer of 2002 signed contracts containing the 18 percent default rate," David A. Cohen of The Cullen Law Firm, OOIDA's litigation counsel, told Land Line Magazine. "To the extent these drivers have positive escrow balances they will be entitled to 18 percent interest on their unreturned escrow funds." Mr. Cohen cautioned, however, that C.R. England has indicated that it intends to appeal the magistrate judge's ruling to Judge Stewart. The appeal will be filed the week of June 15, and Judge Stewart is likely to issue a ruling later this summer. OOIDA President and CEO Jim Johnston told Land Line Magazine the Association will vigorously oppose any attempt by C.R. England to overturn the magistrate judge's ruling that the company must pay 18 percent interest on improperly retained owner-operator escrow funds. Mr. Johnston told Land Line Magazine that Judge Nuffer has issued an aggressive schedule on wrapping up the case, including a status report due in October 2009. DYNAMEX INC: Electronic Discovery in Calif. Labor Suit Ongoing -------------------------------------------------------------- Electronic discovery is continuing in a purported labor class- action lawsuit against Dynamex, Inc., according to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. A company driver filed the suit on April 15, 2005. The lawsuit alleges that the company unlawfully misclassified its California drivers as independent contractors, rather than as employees. The suit asserted, as a consequence, entitlement on behalf of the purported class claimants to overtime compensation and other benefits under California wage and hour laws, reimbursement of certain operating expenses, and various insurance and other benefits and the obligation of the company to pay employer payroll taxes under federal and state law. The plaintiff filed a motion for class certification on Nov. 2, 2006. A hearing was held on Dec. 12, 2006, and the court denied this request. The plaintiff filed a Notice of Appeal on Jan. 5, 2007. Following the exchange of briefs, an Appellate Hearing was held in August 2008. The Appellate Court determined that the trial court's denial of an earlier motion by the plaintiff to compel disclosure of the names and contact information for all members of the putative class prejudiced the plaintiff's ability to support his motion for class certification. The ruling reversed the Denial of the Motion for Class Certification and remanded the matter for additional discovery and eventual re-hearing. Pursuant to Order of the Court, the names and contact information for members of the putative class were produced by the company in January 2009. In early February 2009, Plaintiff was permitted to file a First Amended Complaint, which among other matters, added an additional named Plaintiff. Electronic Discovery is continuing and is expected to lead to the filing of a Motion by Plaintiff for Class Certification in June 2009. Dynamex, Inc. -- http://www.dynamex.com/-- is a provider of same-day delivery and logistics services in the U.S. and Canada. Through its network of business centers, the company provides same-day, on-demand, door-to-door delivery services utilizing its ground couriers. DYNAMEX INC: Lawsuit by Independent Contractor Drivers Stayed ------------------------------------------------------------- A purported class-action lawsuit filed by independent contractor drivers against Dynamex, Inc., is stayed, according to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. The purported class-action lawsuit was filed on July 25, 2008, by two California independent contractor drivers alleging that the company's classification of California drivers as independent contractors was unlawful, and that as a consequence they were denied the benefit of various California wage laws. The plaintiffs further alleged that such misclassification constituted unfair competition under California business statutes. Because the complaint in large measure contains the same causes of action as an on-going California case filed in 2005, the company filed a Special Demurrer and a Motion to Stay further proceedings pending the outcome of the earlier action. Following a November 2008 Hearing, the Court issued a Stay. Plaintiffs' subsequent attempt to consolidate their action with the Los Angeles County action was denied. On Jan. 21, 2009, one of the named Plaintiffs voluntarily dismissed his claims without prejudice in order to attempt to join the Los Angeles County suit. The Plaintiff has subsequently been added to the Los Angeles County suit. Dynamex, Inc. -- http://www.dynamex.com/-- is a provider of same-day delivery and logistics services in the U.S. and Canada. Through its network of business centers, the company provides same-day, on-demand, door-to-door delivery services utilizing its ground couriers. FLORIDA SCHOOL: Ex-Employee Denies Allegations in Abuse Lawsuit --------------------------------------------------------------- A former Florida Panhandle reform school employee is denying allegations of abuse in a class-action lawsuit filed against him and several other entities, The Associated Press reports. During a May 21, 2009 deposition, Troy Tidwell said, "Never was a boy beat in my presence," at the former Florida School for Boys in Marianna. Mr. Tidwell said boys were spanked, but not beaten, when they broke the rules or tried to run away. He also said misbehaving boys were fed a "soup that would change their conduct," reports AP. Mr. Tidwell, another former school employee, the Department of Juvenile Justice, and four other state departments are named as defendants in the lawsuit, AP reported. According ot Northwest Florida Daily News, ,ore than 300 men who spent time at two Florida reform schools a half century ago are suing the state claiming they were raped and severely beaten by state employees. FMC CORP: July 14 Hearing Set for Pa. Antitrust Suit Settlement --------------------------------------------------------------- The U.S. District Court for the Eastern District of Pennsylvania will hold a fairness hearing on July 14, 2009, at 10:00 a.m., to consider a proposed settlement by FMC Corp., Arkema Inc. (f/k/a Atofna Chemicals, Inc. and Elf Atochem North America, Inc.) and Arkema France (f/k/a Atofna S.A. and Elf Atochem S.A.) in the matter, "In Re: Hydrogen Peroxide Antitrust Litigation, Case No. 05-666, MDL Docket No. 1682." The Court will hold a hearing at the United States District Court for the Eastern District of Pennsylvania, 601 Market Street, Courtroom 10B, Philadelphia, Pennsylvania 19106. Case Background The plaintiffs in the lawsuit are those who purchased Hydrogen Peroxide (including sodium perborate and sodium percarbonate) in the U.S. or from a facility located in the U.S., directly from any of these defendants: -- Akzo Nobel Chemicals International B.V.; -- Akzo Nobel Inc.; -- Arkema Inc. (f/k/a Atofina Chemicals, Inc. and Elf Atochem North America, Inc.); -- Arkema France (f/k/a Atofina S.A. and Elf Atochem S.A.); -- Degussa Gmbh (f/k/a Degussa A.G.); -- Degussa Corporation; -- EKA Chemicals, Inc.; -- FMC Corporation; -- Kemira Chemicals, Canada, Inc.; -- Kemira Oyj; -- Solvay America; -- Solvay Chemicals, Inc.; -- Solvay S.A.; and -- Total S.A. (f/k/a Totalfinalelf S.A. and Total, S.A.). In general, the suit asserts that, as a result of the alleged conduct of the defendants, the prices paid to the defendant manufacturers for hydrogen peroxide, sodium perborate and sodium percarbonate were higher than they otherwise would have been (Class Action Reporter, Sept. 24, 2007). The plaintiffs are seeking treble damages, injunctive relief, attorneys' fees and costs from the defendants. For more details, contact: Hydrogen Peroxide Antitrust Litigation Settlement Administrator c/o Heffler, Radetich & Saitta LLP P.O. Box 58309 Philadelphia, PA 19102-8309 Phone: 1-800-252-5745 http://www.hydrogenperoxideantitrustlitigation.com/ Michael D. Hausfeld, Esq. Hausfeld LLP 1700 K Street, N.W., Suite 650 Washington, DC 20006 Phone: 202-540-7200 - and - Robert N. Kaplan, Esq. (rkaplan@kaplanfox.com) Kaplan Fox & Kilsheimer LLP 805 Third Avenue New York, NY 10022 Phone: 800-290-1952 212-687-1980 Fax: 212-687-7714 Web site: http://www.kaplanfox.com/ GOOGLE INC: Sept. 14 Hearing Set for $20M Adwords Settlement ------------------------------------------------------------ The U.S. District Court for the Northern District of California will hold a fairness hearing on Sept. 14, 2009 at 9:00 a.m. For the proposed $20,000,000 settlement in the matter, "CLRB Hanson Industries, LLC et al v. Google Inc., Case No. 5:2005-cv-03649." The hearing will be held at the U.S Courthouse, 280 South 1st Street, San Jose, California 95113. Mediapost previously reported that Google Inc. reached a $20,000,000 settlement for the purported class-action lawsuit, "CLRB Hanson Industries, LLC et al v. Google Inc., Case No. 5:2005-cv-03649" (Class Action Reporter, April 6, 2009). The class-action lawsuit was filed by two small business advertisers, namely Minnesota-based printing company CLRB Hanson Industries and N.J.-based Howard Stern (not the radio personality); they argued that Google had charged them more for ads on certain days than they'd agreed to pay for, according to Mediapost. Google countered that it had only overcharged them to make up for days when it under-delivered ads, but still chose to end the litigation with a settlement. Both plaintiffs will receive $20,000; Google agreed to pay their lawyers more than $5 million. Other affected advertisers will get AdWords credits, Mediapost reported. In a statement to Mediapost, a company spokesperson said, "Google believes the claims are without merit, but we are pleased to have the litigation behind us and to move forward with our business objectives." In mid-2008, the U.S. District Court for the Northern District of California ruled that the lawsuit, which is challenging Google Inc.'s AdWords billing practices, may proceed (Class Action Reporter, June 4, 2008). AdWords is Google's primary advertising program and is the main source of its revenue. AdWords ads appear on Google.com as well as on Google partner sites like Ask.com (Class Action Reporter, April 24, 2008). AdWords ads, however, may also appear on third-party Web sites, which use AdSense, the other side of the Google advertising model. Google charges its advertising customers when someone "clicks" on one of their ads. During the sign-up process, users tell Google the maximum that they are willing to pay per "click." During this process, users encounter two adjacent boxes. Into the first, customers enter the amount they wish to pay per "click" of an ad displayed on Google.com. The second box is marked "optional." Into this box, a user can enter the amount they would be willing to pay per "click" of an ad appearing on a third party web page. But leaving the box blank does not prevent ads from appearing on third-party sites. Instead, Google places the ads on third-party sites anyway. And users are automatically charged per click based on the amount they entered into the first box. This suit arises from the fact that both actions occur without the user being informed. Ads on third-party sites are widely-acknowledged to be far less effective (and therefore less valuable to the advertiser) than ads on Google.com. Google, of course, still profits greatly from these ads. Filed in 2005, plaintiffs in the suit seek to represent all Google AdWords advertisers who have been charged more than their per day daily budget, and will request the Court to certify the lawsuit as a class action. On May 14, 2008, the U.S. District Court for the Northern District of California denied, in part, Google's motion for summary judgment, and determined that a lawsuit challenging, among other things, Google's practice of charging AdWords advertisers more than an advertiser's specified per day "daily budget" may proceed. The suit is "CLRB Hanson Industries, LLC et al v. Google Inc., Case No. 5:2005-cv-03649," filed in the U.S. District Court for the Northern District of California, Judge James Ware, presiding. For more information, contact: CLRB Hanson LLC et al. v. Google Class Action Settlement c/o Gilardi & Co., LLC P.O. Box 8090 San Rafael, California 94912-8090 Web site: http://www.adwordssettlement.com/ Rachel S. Black, Esq. (rblack@susmangodfrey.com) SUSMAN GODFREY LLP Seattle, Washington Phone: 206.516.3899 Fax: 206.516.3883 Web site: http://www.susmangodfrey.com/ - and - Lester L. Levy, Esq. (llevy@wolfpopper.com) WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Phone: (212) 451-9606 Web site: http://www.wolfpopper.com/ HOVNANIAN ENTERPRISES: Bid to Junk Amended "Sewell" Suit Pending ---------------------------------------------------------------- Hovnanian Enterprises, Inc.'s motion to dismiss the second amended complaint in a purported class action suit, Randolph Sewell, et al., v. D'Allesandro & Woodyard, et al., is pending. A subsidiary of the company has been named as a defendant in the purported class-action suit filed on May 30, 2007, in the U.S. District Court for the Middle District of Florida, alleging violations of the federal securities acts, among other allegations, in connection with the sale of some of the subsidiary's homes in Fort Myers, Florida. Plaintiffs filed an amended complaint on Oct. 19, 2007. Plaintiffs sought to represent a class of certain home purchasers in southwestern Florida and sought damages, rescission of certain purchase agreements, restitution of out- of-pocket expenses, and attorneys' fees and costs. The company's subsidiary filed a Motion to Dismiss the amended complaint on Dec. 14, 2007. Following oral argument on the motion in September 2008, the court dismissed the amended complaint with leave for plaintiffs to amend. Plaintiffs filed a second amended complaint on Oct. 31, 2008. The company has filed a Motion to Dismiss this second amended complaint. Plaintiffs seek to represent a class of certain home purchasers in southwestern Florida and seek damages, rescission of certain purchase agreements, restitution of out-of-pocket expenses, and attorneys' fees and costs, according to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. Hovnanian Enterprises, Inc. -- http://www.khov.com/-- designs, constructs, markets and sells single-family detached homes, attached townhomes and condominiums, mid-rise and high-rise condominiums, urban infill and active adult homes in planned residential developments. HOVNANIAN ENTERPRISES: In Talks to Settle Securities Fraud Suit --------------------------------------------------------------- Hovnanian Enterprises, Inc.; its chief financial officer J. Larry Sorsby; and its chief executive officer and president, Ara K. Hovnanian, are in discussions over possible settlement of a consolidated securities fraud class action suit filed with the U.S. District Court for the District of New Jersey. The class-action complaint was originally filed with the U.S. District Court for the Central District of California on Sept. 14, 2007, accusing Mr. Sorsby of inflating the home builder's share price through false and misleading statements (Class Action Reporter, Sept. 19, 2007). Named plaintiff, and later court-appointed lead plaintiff, Herbert Mankofsky, brought this securities class action on behalf of all persons who purchased or otherwise acquired the common stock of Hovnanian between Dec. 8, 2005, and Aug. 13, 2007. The suit alleges that the defendants violated the Securities Act of 1934. It also alleges that during the class period, the defendants issued a materially false and misleading statements regarding the company's business and prospects. According to the suit, as a result of these misleading statements, Hovnanian stock traded at artificially inflated prices during the class period, reaching a high of $54.29 per share in Jan. 2006. However, as a direct result of the market learning of defendants' wrongdoing, the price of Hovnanian shares declined and the plaintiff and the class suffered a loss on their investment in Hovnanian. The plaintiff wants the court to rule on: (a) whether the 1934 Act was violated by defendant; (b) whether the defendant omitted and misrepresented material facts; (c) whether defendant's statements omitted material facts necessary to make the statements made, in light of the circumstances under which they were made, not misleading; (d) whether defendant knew or deliberately disregarded that his statements were false and misleading; (e) whether the price of Hovnanian common stock was artificially inflated; and (f) the extent of damage sustained by class members and the appropriate measure of damages. The plaintiff prays for judgment: -- declaring this action to be a proper class action pursuant to Fed.R.Civ.P. 23; -- awarding plaintiff and the members of the class, damages, including interest; -- awarding plaintiff reasonable costs and attorney's fees; and -- awarding such equitable/injunctive or other relief as the court may deem just and proper. On Feb. 19, 2008, the action was transferred to the U.S. District Court for the District of New Jersey. On March 10, 2008, the plaintiff filed an amended complaint, captioned, "In re Hovnanian Enterprises, Inc. Securities Litigation," alleging that the defendants made false and misleading statements regarding the Company's business and future prospects with respect to the Company's acquisition and operation of First Home Builders of Florida in violation of federal securities laws. The company filed a Motion to Dismiss the amended complaint on July 14, 2008. On Sept. 11, 2008, plaintiff filed his opposition to the Motion to Dismiss. The company filed its reply brief on Oct. 28, 2008. In March 2009, the parties agreed that the Motion to Dismiss would be withdrawn and that the Plaintiffs would file a second amended complaint. The company's insurance carrier has agreed to provide coverage for the case under the company's insurance policy, therefore the maximum exposure to the company is the deductible, which has already been incurred and expensed as defense costs. The parties are discussing possible settlement of the matter, according to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. The suit is "In re Hovnanian Enterprises, Inc. Securities Litigation," filed with the U.S. District Court for the District of New Jersey, Judge Susan D. Wigenton. Representing the plaintiffs is: William C. Cagney, Esq. (wcagney@windelsmarx.com) Windels, Marx, Lane & Mittendorf, LLP 120 Albany Street Plaza New Brunswick, NJ 08901 Phone: (732) 846-7600 Representing the defendants is: Douglas Scott Eakeley, Esq. (deakeley@lowenstein.com) Lowenstein Sandler P.C. 65 Livingston Ave. Roseland, NJ 07068-1791 Phone: (973) 597-2500 IOVATE HEALTH: Baum Hedlund Files Hydroxycut Consumer Fraud Suit ---------------------------------------------------------------- Recalled Hydroxycut products are defective and dangerous according to a lawsuit filed by Baum, Hedlund, Aristei & Goldman in federal court in Los Angeles on behalf of everyone who consumed any of the recalled weight loss Hydroxycut supplements. The lead plaintiff in this class action, Marvin Thomas of Los Angeles, is seeking compensatory, equitable, declaratory, and injunctive relief for himself and everyone in the Hydroxycut class against the defendants for, among other things, violations of various states' deceptive trade practices acts, misrepresentation, fraudulent, false and misleading advertisements, and unjust enrichment by distributing a product about which they had been making unsubstantiated claims of safety and effectiveness. The class action lawsuit (CV 09-04337) was filed in the United States District Court for the Central District of California, against the manufacturers of Hydroxycut: Iovate Health Sciences USA Inc. (Blasdell, N.Y.); Iovate Health Sciences Inc., (Ontario, Canada); and MuscleTech Research and Development, Inc. (Ontario, Canada). According to the complaint, the Hydroxycut products that were the subject of the May 1, 2009 and May 7, 2009 Food and Drug Administration (FDA) recalls, were a series of dietary, weight loss and muscle building supplements and drugs which posed serious health risks, including serious liver injuries, or hepatotoxicity (chemical-driven liver damage). Because Hydroxycut is a dietary supplement and not a prescription drug, it was not regulated by the FDA and did not require approval by the FDA, according to one of Mr. Thomas' attorneys, Ilyas Akbari, also a bio-engineer. "In this case they cannot hide behind the dubious FDA preemption defense. "We believe defendants have known for a long time that their products were unsafe yet they continued to mass market them for profit," according to Mr. Akbari. He went on to say that questions concerning the safety of Hydroxycut can be traced back to 2003 when the state of Missouri filed a complaint alleging that Hydroxycut's claims of being "clinically proven" and "safe" were false and misleading. That case settled but nothing changed. The first scientific publications that Baum Hedlund was aware of which associated Hydroxycut with liver injury were reported in March 2005. Since then, numerous publications have reported injuries associated with these products and, recently, at least 23 adverse event reports were submitted to the FDA. The FDA informed Iovate of its belief that Hydroxycut was not safe. The manufacturers finally agreed with that assessment, which led to the May, 2009 recalls. Baum Hedlund warns that the number of adverse events has almost certainly been under-reported. Approximately 15% of the U.S. population uses dietary/weight loss supplements and Hydroxycut, which was promoted as "America's #1 Selling Weight- Loss Supplement," was by far the leading product in this market, selling about 9 million units in 2008 alone. With such wide usage, the actual number of reported cases likely underestimates the true incidence of injuries by several degrees of magnitude, especially here in Southern California, which may have been hit the hardest by this fraud. Californians have always been among the most health conscious in the country and probably consume dietary supplements on a larger scale than any other part of the nation. Anyone with a Hydroxycut-related injury should seek medical attention. For more information about this class action please call 800-827-0087 or 310-207-3233. KB HOME: Faces Calif. Suit For Allegedly Rigging Home Appraisals ---------------------------------------------------------------- Two California homeowners filed a class-action lawsuit against KB Home (NYSE: KBH), Countrywide Financial and LandSafe Appraisal Services, expanding cases previously filed in Arizona and Nevada claiming the companies conspired to systematically, artificially and illegally rig home appraisals and sale values in KB developments throughout the state. The lawsuit lists identical claims to the suit filed in Arizona last month. Homeowners claim KB Home and the other defendants inflated home prices by as much as $300 million in California alone. Between 2006 and 2008, KB built more than 15,000 homes in California at an average selling price of $425,000 the complaint cites. Attorneys conservatively estimate that each home had an inflated appraised value of $20,000, the suit states. "KB and Countrywide created an opportunity where the companies could control every aspect of a buyer's real estate transaction," said Steve Berman, lead attorney and managing partner at HBSS. "The defendants essentially created a black hole in the process, where they could rig and falsify appraisals and home sale values and customers had absolutely no idea." According to the 75-page complaint, Countrywide funneled all its KB customers' home appraisals to one person at LandSafe, an appraisal subsidiary of Countrywide who, in turn, would deliver an appraisal value at whatever KB and Countrywide ordered. These individuals were under direct instruction to value homes at or above the contract price, even if it meant violating regulatory guidelines and requirements. In two KB Home developments cited in the complaint, sampled appraisals were inflated by $48,000 and $52,000 per property. KB's major markets in California include communities in Fresno, Los Angeles and Ventura, Orange County, Riverside, Sacramento, San Bernardino, San Diego, San Jose and Oakland and Stockton. The suit details a litany of tactics LandSafe appraisers used to deliver the predetermined value, including blatantly falsifying sale prices for comparable properties; using comparable properties that were as much as 10 miles away, and citing comparable properties that were in other planned communities. "Countrywide approved loans for amounts in excess of homes' true values and pushed homeowners into loans they didn't qualify for, ultimately dooming them to financial failure," said Berman. "Homeowners now find themselves unable to make payments or unable to sell the home at a value that allows them to pay off the loan - these are alarming practices and damaging not only to customers but to the entire home loan industry." The lawsuit includes allegations of a second scheme with Countrywide and its subsidiary appraisal arm, LandSafe. The suit alleges LandSafe outsourced appraisal work on individual appraisers willing to 'play ball,' and forced appraisers to accept payment below market value. LandSafe then charged plaintiffs upwards of $400 for services, when the company completed no work of its own. According to the complaint, KB Home ran into similar appraisal problems in 2005 when it settled with HUD for $3.2 million to resolve an investigation into the company's underwriting violations. This includes approving loans to borrowers not eligible, approving loans based on overstated or incorrect income, failing to include all of a borrower's debts, failing to properly verify sources of funds and failure to meet HUD requirements. The HBSS lawsuit claims violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and violation of California unfair competition law. The lawsuit represents anyone in California who purchased a home from KB Home and financed through Countrywide. To join this case, homeowners can contact attorneys by visiting http://www.hbsslaw.com/kbhomes,e-mailing kbhomes@hbsslaw.com or calling (206) 623-7292. MICHAEL BAKER: Reaches Settlement in Securities Fraud Litigation ---------------------------------------------------------------- The U.S. District Court for the Western District of Pennsylvania will hold a fairness hearing on Sept. 11, 2009 for the proposed $4,500,000 settlement in the matter, "Michael Baker Corp. Securities Litigation, Case No. 2:08-cv-00370-JFC." The hearing will be held before the Honorable Joy Flowers Conti at the United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania 15219. Previously, Michael Baker Corp. announced that it has reached an agreement in principle with the lead plaintiffs in the previously disclosed class-action lawsuit against the Company. The settlement is subject to court approval after notice to the class members. The amount of the settlement, which the Company did not disclose, will be covered in full by the Company's insurance (Class Action Reporter, March 5, 2009). Initially, four separate complaints were filed by holders of the company's common stock against the company, as well as certain of its current and former officers (Class Action Reporter, July 7, 2008). The complaints in these lawsuits purport to have been made on behalf of a class of plaintiffs consisting of purchasers of the company's common stock between March 19, 2007, and Feb. 22, 2008. The suits alleged that the company and certain of its current and former officers made materially false and misleading statements in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and SEC Rule 10b-5 promulgated thereunder. The plaintiffs seek unspecified compensatory damages, attorneys' fees, and other fees and costs. In June 2008, all of the cases were consolidated into a single action, according to the company's June 30, 2008 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2007. For more details, contact: In re Michael Baker Corp. Securities Litigation c/o Heffler, Radetich, & Saitta L.L.P. P.O. Box 70, Philadelphia, Pennsylvania 19105-0070 Phone: (800) 355-2582 Web site: http://www.hrsclaimsadministration.com Michael K. Yarnoff, Esq. Barroway Topaz Kessler Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 822-2203 Fax: (610) 667-7056 Web site: http://www.sbtklaw.com/ - and - Daniel E. Bacine, Esq. Barrack, Rodos & Bacine 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Phone: 215-963-0600 Fax: 215-963-0838 Web site: http://www.barrack.com MICHAELS STORES: Faces Lawsuit by Former Hourly Retail Employees ---------------------------------------------------------------- Michaels Stores, Inc. intends to defend a purported class-action proceeding commenced by Nicole McLeod, according to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. On March 30, 2009, Nicole McLeod, a former Michaels employee, commenced a purported class-action proceeding against Michaels Stores, Inc. on behalf of herself and current and former hourly retail employees employed in California from March 30, 2005 to the present. The McLeod suit was filed in the Superior Court of California, County of Los Angeles, and removed by the Company to the U.S. District Court for the Central District of California. The McLeod suit alleges that Michaels failed to pay overtime wages and provide meal and rest periods (or compensation in lieu thereof). The McLeod suit also alleges that this conduct was in breach of California's unfair competition law. The plaintiffs seek injunctive relief, restitution, damages for unpaid wages, waiting time penalties, interest, and attorneys' fees and costs. Michaels Stores, Inc. -- http://www.michaels.com/-- is an arts and crafts specialty retailer in North America providing materials, ideas and education for creative activities. MICHAELS STORES: To Defend "Adams" Wage and Hours Suit in Calif. ---------------------------------------------------------------- The class-action lawsuit entitled "Adams, et. al. v. Michaels Stores, Inc.," is pending in the U.S. District Court for the Central District of California. A purported class-action suit was filed on Dec. 29, 2006, by John DeJoseph, a former Michaels store manager in Valencia, California. Mr. DeJoseph commenced the purported class-action proceeding against Michaels Stores on behalf of himself and current and former salaried store employees employed in California from May 10, 2002, to the present. The DeJoseph suit was filed with the Superior Court of California, County of Los Angeles. It alleges that Michaels failed to pay overtime wages, provide meal periods, accurately record hours worked, provide itemized employee wage statements, and that Michaels unlawfully made deductions from employees' earnings. Additionally, the suit alleges that the foregoing conduct was in breach of California's unfair competition law. The plaintiff seeks injunctive relief, damages for unpaid wages, penalties, restitution, interest, and attorneys' fees and costs. In January 2008, the plaintiff submitted a brief in support of class certification. The company contested class certification by filing responding materials on March 14, 2008. On June 4, 2008, the class was certified as to certain claims. However, on a motion for de-certification filed by the company, the Court de-certified the class on March 12, 2009. On April 22, 2009, counsel for the former class filed a new action, "Adams, et. al. v. Michaels Stores, Inc." in the U.S. District Court for the Central District of California. The Adams suit includes approximately 125 individual plaintiffs who were members of the former class in the DeJoseph suit and alleges that Michaels failed to pay overtime wages, provide meal and rest periods (or compensation in lieu thereof), accurately record hours worked and provide itemized employee wage statements. The Adams suit additionally alleges that the foregoing conduct was in breach of California's unfair competition law. The plaintiff seeks injunctive relief, damages for unpaid wages, penalties, restitution, interest, and attorneys' fees and costs. The company intends to defend the class action, according to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 2, 2009. Michaels Stores, Inc. -- http://www.michaels.com/-- is an arts and crafts specialty retailer in North America providing materials, ideas and education for creative activities. NOVAGOLD RESOURCES: N.Y. Court Nixes Most Claims in Stock Suit -------------------------------------------------------------- The U.S. District Court for the Southern District of New York dismissed all but one claim in a consolidated securities fraud class-action lawsuit against NovaGold Resources, Inc. and its officers, Darryl Greer of the Courthouse News Service reports. Previously, Law360 reported that most claims in the case were dismissed. But, a single claim against NovaGold under the Securities Act of 1934 survived, along with some "controlling persons" claims against its officers (Class Action Reporter, June 10, 2009). According to the Courthouse News Service, Judge Denise Cote granted the defendants' motions to dismiss under the Securities Act, finding that the plaintiffs' claims were either time-barred or insufficient. The limitation period expired a month before the complaint was filed, because a company press release disclosing that NovaGold had initiated another feasibility study of the project had triggered a "duty of inquiry." The Courthouse News Service reported that Judge Cote dismissed other claims against certain NovaGold directors and underwriters, including Citigroup, because cost estimates suggesting the project's economic viability were "forward- looking statements accompanied by cautionary language," and protected by the Private Securities Litigation Reform Act's safe-harbor provision. While not ruling on the merits of the case, the judge did allow the case to move forward based on allegations that NovaGold "misrepresented the project's cost estimate and viability," reports the Courthouse News Service. Case Background The suit is caption, "In Re: NovaGold Resources, Inc. Securities Litigation, Case No. 08 Civ 7041 (DLC)." It generally charges NovaGold and certain of its officers and directors with violations of the Securities Exchange Act of 1934 (Class Action Reporter, Sept. 11, 2008). The complaint alleges that during the Class Period, defendants made false and misleading statements regarding the costs, progress and viability of NovaGold's multi-billion dollar Galore Creek project. Specifically, defendants repeatedly touted the results of a feasibility study which estimated the capital costs for the Galore Creek project to be CDN$2.2 billion. In fact, developing Galore Creek would cost $5 billion, over twice what defendants represented. On November 26, 2007, the Company announced that it would suspend activities at Galore Creek based on the results of an updated feasibility study which reflected the true costs for the Galore Creek project. As a result of this disclosure, NovaGold's stock price dropped from $20.24 to $9.48 the next trading day, a drop of 53%. The plaintiff seeks to recover damages on behalf of all purchasers of NovaGold securities during the class period. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?3df5 For more details, contact: Joseph A. Fonti, Esq. (jfonti@labaton.com) Benjamin D. Bainco, Esq. (bbianco@labaton.com) Labaton Sucharow LLP 140 Broadway New York, NY 10005 Phone: 212-907-0844 or 212-907-0845 or 888-753-2796 Fax: 212-883-7045 or 212-883-7044 Web site: http://www.labaton.com/ OPTIONABLE INC: Judge Refuses to Revive Natural Gas Options Suit ---------------------------------------------------------------- Judge Paul A. Crotty of the U.S. District Court for the Southern District of New York refused a bid by Optionable, Inc. shareholders to reconsider an order dismissing a putative securities class-action suit related to natural gas options, Law360 reports. According to the company's May 15, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2009, the plaintiff in a shareholder class- action lawsuit against Optionable Inc. seeks to file an amended complaint (Class Action Reporter, June 9, 2009). On May 11, 2007, two lawsuits were initially filed before the U.S. District Court for the Southern District of New York. These suits are: -- "Alexander Fleiss v. Optionable Inc., Mark Nordlicht, Kevin Cassidy, Edward J. O'Connor, Albert Helmig and Marc-Andre Boisseau, Case No. 07 CV 3753 (LAK)," and -- "Robert Rastocky v. Optionable, Inc., Kevin Cassidy and Edward O'Connor, Case No. 07 CV 3755 (CLB)," Subsequently, five additional lawsuits were filed in the U.S. District Court for the Southern District of New York: 1. "Jagdish Patel v. Optionable Inc., Kevin Cassidy, and Edward J. O'Connor, Case No. 07 CV 3845 (LAK)," filed on May 16, 2007; 2. "Peters v. Optionable, Inc., Mark Nordlicht, Kevin P. Cassidy, Edward J. O'Connor, Albert Helmig, and Marc- Andre Boisseau, Case No. 07 CV 3877 (LAK)," filed on May 17, 2007; 3. "Manowitz v. Optionable Inc., Kevin Cassidy, Edward J. O'Conner, and Mark Nordlicht, Case No. 07 CV 3884 (UA)," filed on May 17, 2007; 4. "Glaubach v. Optionable Inc., Kevin Cassidy, Mark Nordlicht, Edward J. O'Connor, Albert Helmig, and Marc-Andre Boisseau, Case No. 07 CV 4085 (LAK)," filed on May 24, 2007; and 5. "Bock v. Optionable Inc., Kevin Cassidy, Mark Nordlicht, Edward J. O'Connor, Albert Helmig, and Marc-Andre Boisseau, Case No. 07 CV 5948 (LAK)," filed on June 22, 2007. Each of the lawsuits names the company as a defendant and some of the lawsuits name as defendants all or certain of the directors and officers of the company. The directors and officers of the company that were named as defendants include: * Mark Nordlicht, former Chairman of the Board of Directors of the Company; * Kevin Cassidy, former Chief Executive Officer and Vice- Chairman of the Board of Directors of the Company; * Edward J. O'Connor, President of the Company and member of the Board of Directors; and * Marc-Andre Boisseau, the Chief Financial Officer of the Company. By order dated May 24, 2007, the Rastocky matter was voluntarily dismissed. By Orders dated June 20 and July 3, 2007, the Fleiss, Patel, Peters, Manowitz, and Glaubach cases were consolidated under the caption, "In re Optionable Securities Litigation, Case 07-CV- 3753 (LAK)." By Order Nov. 20, 2007, Judge Kaplan granted the motion of KLD Investment Management, LLC, to serve as lead plaintiff and approved its choice of counsel, Kahn Gauthier Swick, LLC. On Jan. 17, 2008, the lead plaintiff filed a consolidated amended class action complaint. The complaint seeks unspecified damages arising from alleged violations of the federal securities laws, including the U.S. Securities Exchange Act of 1934, 15 U.S.C. ss. 78a et seq., and Rule 10b-5 under the Exchange Act, 17 C.F.R. ss. 240.10b -5. The complaint alleges, among other things, that during the class period of Jan. 22, 2007, to May 14, 2007, defendants failed to disclose certain information in public filings and statements, made materially false and misleading statements and misrepresentations in public filings and statements, sold artificially inflated stock and engaged in improper deals, had an improper relationship with and "schemed" with its customer Bank of Montreal, and understated the company's reliance on its relationship with BMO. The complaint alleges that while the company's stock was trading at artificially inflated prices, certain defendants sold shares of common stock of the company. On Feb. 15, 19, and 20, 2008, the company and the individual defendants filed motions to dismiss the complaint, which motions were opposed by the plaintiffs. On April 3, 2008, Judge Kaplan ordered the individual defendants to file only a single joint reply memorandum in response to the plaintiffs' oppositions. Thus, in April 2008, the company filed its reply memorandum of law in support of its motion to dismiss the complaint, and the individual defendants filed their joint reply memorandum of the same. Earlier, Optionable, Inc., sought the dismissal of the consolidated shareholder lawsuit entitled "In re Optionable Securities Litigation, Case 07 CV 3753 (LAK)" (Class Action Reporter, Oct. 3, 2008). On Oct. 20, 2008, the Court denied Plaintiff's motion in all respects, and a final judgment of dismissal was entered on Oct. 23, 2008. On Jan. 13, 2009, the plaintiff filed a motion pursuant to Rule 60(b) for relief from the Oct. 23, 2008 Final Judgment and seeking to file an amended complaint. The suit is "In re Optionable Securities Litigation, Case 07 CV 3753 (LAK)," filed in the U.S. District Court for the Southern District of New York, Judge Lewis A. Kaplan, presiding. Representing the plaintiffs are: Mario Alba, Jr., Esq. (malba@csgrr.com) Coughlin, Stoia, Geller, Rudman & Robbins, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631-367-7100 Fax: 631-367-1173 - and - Jeffrey Philip Campisi, Esq. (jcampisi@kaplanfox.com) Kaplan Fox & Kilsheimer LLP 850 Third Avenue, 14th Floor New York, NY 10022 Phone: 212-687-1980 Fax: 212-687-1980 Representing the defendants are: Michael G. Bongiorno, Esq. (michael.bongiorno@wilmerhale.com) Wilmer Cutler Pickering Hale & Dorr L.L.P. 1875 Pennsylvania Avenue, Nw Washington, DC 20006 Phone: 212-230-8800 Fax: 212-230-8888 - and - Paul Edouard Dans, Esq. (pdans@eapdlaw.com) Edwards Angell Palmer & Dodge, LLP 750 Lexington Avenue New York, NY 10022 Phone: 212-912-2736 Fax: 212-308-4844 PENNSYLVANIA: DPW Sued Over Policy for Mentally Retarded Adults --------------------------------------------------------------- The Department of Public Welfare of the Commonwealth of Pennsylvania and Estelle B. Richman, Managing Director for the City of Philadelphia, are facing a purported class-action suit challenging the department's practice of holding mentally retarded adults at state psychiatric hospitals, Terrie Morgan- Besecker of Wilkes Barre Times-Leader reports. The suit was filed on June 11, 2009 in the U.S. District Court for the Middle District of Pennsylvania by the Philadelphia- based Disability Rights Network of Pennsylvania on behalf of eight mentally retarded adults, namely: Leah Jimmie, 28, and Josette Halechko, 26, both of Luzerne County; Lewis Bowers, 43, of Tioga County; Janice Slater, 19, of Lackawanna County; Ronald Pearson, 56, and William Sacks, 49, both of Lehigh County; Edward Nauss, 59, of Delaware County; and Benjamin Perrick, 65, of Philadelphia. Captioned, "Jimmie et al v. Department of Public Welfare of the Commonwealth of Pennsylvania et al., Case No. 3:2009-cv-01112," the suit alleges DPW is not doing enough to transfer persons who are institutionalized into community-based programs that would better suit their needs. The suit further alleges DPW has failed to provide adequately trained staff at psychiatric hospitals to deal with the issues that afflict those with mental retardation and psychiatric illnesses, reports the Wilkes Barre Times-Leader. According to the lawsuit, the plaintiffs are among approximately 115 persons with mental retardation who are housed at the state's seven psychiatric hospitals, including Clarks Summit State Hospital in Lackawanna County. The Wilkes Barre Times-Leader reported that all of the plaintiffs, other than Mr. Perrick, suffer from mental health conditions in addition to mental retardation. The suit alleges that housing these individuals in institutions rather than community settings hinders their ability to live fuller lives. Part of the problem is that the staff at the hospitals is not trained to provide mental health services to persons with mental retardation in a manner that takes into consideration their intellectual disabilities, Robert W. Meek, an attorney with the Disability Rights Network tells the Wilkes Barre Times-Leader. The hospitals also do not provide patients with the opportunity to interact with the community, which is considered crucial in teaching life skills to the mentally retarded, according to the the complaint, a copy of which was obtained by the Wilkes Barre Times-Leader. "The failure to provide meaningful access to mental health services ... makes them more likely to be subject to longer institutionalized stays or to be a 'revolving door' of recurrent psychiatric readmissions," the suit says. The suit seeks to require DPW to develop policies and programs focused on getting the affected individuals into community-based programs. It also seeks to require the department to ensure that mental health services provided to those who are not suitable for release are tailored toward their mental disabilities, according to the Wilkes Barre Times-Leader report. For more details, contact: Robert W. Meek, Esq. (rmeek@drnpa.org) Disability Rights Network of Pennsylvania 1315 Walnut St. Suite 400 Philadelphia, PA 19107-4798 Phone: 215-238-8070 Fax: 12157723126 PRESSTEK INC: July 20 Hearing Set for $1.25M Lawsuit Settlement --------------------------------------------------------------- U.S. District Court for the District of New Hampshire will hold a fairness hearing on July 20, 2009 at 10:00 a.m. For the proposed $1.25 million settlement of the matter, "Sloman v. Presstek, Inc., et al., Case No. 1:06-cv-00377-JD." The hearing will be held before the Honorable Joseph. N. LaPlante, in the U.S. District Court for the District of New Hampshire, 55 Pleasant St., Concord, NH 03301. Bod Sanders of New Hampshire Business Review reported that Presstek, Inc. agreed to pay $1.25 million to settle a class- action lawsuit charging that the company misled investors about its earnings in 2006 (Class Action Reporter, May 8, 2008). Previously, it was reported that Presstek, Inc. settled a purported securities fraud class-action suit filed before the U.S. District Court for the District of New Hampshire (Class Action Reporter, Nov. 21, 2008). In October 2006, the company and two of its former executive officers were named as defendants in a purported securities class action complaint filed in the U.S. District Court for the District of New Hampshire. The suit claims to be brought on behalf of purchasers of the company's common stock during the period from July 27, 2006, through Sept. 29, 2006. The suit alleges, among other things, that the company and the other defendants violated Sections 10(b) and 20(a) of the U.S. Exchange Act and Rule 10b-5 promulgated thereunder based on allegedly false forecasts of fiscal third quarter and annual 2006 revenues. As relief, the plaintiffs seek an unspecified amount of monetary damages, but make no allegation as to losses incurred by any purported class member, court costs and attorneys' fees. The company in its Oct. 31, 2008 Form 8-K Filing with the U.S. Securities and Exchange Commission announced that it has reached an agreement to settle the federal securities class-action lawsuit. This settlement, which is subject to confirmatory discovery and court approval, will have no material impact on the company's 2008 operating results. The suit is "Sloman v. Presstek, Inc., et al., Case No. 1:06-cv- 00377-JD," filed in the U.S. District Court for the District of New Hampshire, Judge Joseph A. DiClerico, Jr., presiding. Representing the plaintiffs are: Theodore M. Hess-Mahan, Esq. (ted@shulaw.com) Thomas G. Shapiro, Esq. (tshapiro@shulaw.com) Shapiro Haber & Urmy 53 State St., Boston, MA 02109 Phone: 617-439-3939 Fax: 617-439-0134 - and - Mark L. Mallory, Esq. (mark@malloryandfriedman.com) Mallory & Friedman PLLC 8 Green St., Concord, NH 03301 Phone: 603-228-2277 Representing defendants is: Robert E. McDaniel, Esq. (remcdanielesq@aol.com) McDaniel Law Offices 755 North Main St. Laconia, NH 03246 Phone: 603-527-0520 Fax: 603-279-0540 SPRINT SPECTRUM: Treo 600 Wi-Fi/Bluetooth Accessory Suit Settled ---------------------------------------------------------------- A class-action suit filed by by James Casaburi and Robert Werksman against Sprint Spectrum L.P. Palm, Inc. (f/k/a palmOne, Inc.) in 2004 has now led to a settlement for affected customers. Humberto Saabedra of PhoneNews.com writes that the suit is alleging claims from both companies of WiFi and Bluetooth expansion cards for Treo 600 smartphones were untrue because no Bluetooth or WiFi cards were ever developed that are compatible with the Treo 600 (Class Action Reporter, June 9, 2009). Under the terms of the proposed settlement, class members who are current Sprint subscribers are eligible to receive a $20 bill credit, with class members who are not current Sprint subscribers are eligible for a $27.50 credit that may be used for a purchase at Palm's online store, PhoneNews.com reported. The deadline for filing a claim if affected is Sept. 15, 2009, according to the PhoneNews.com posting. For more details, contact: Sprint Treo 600 Settlement c/o Gilardi & Co. P.O. Box 808054 Petaluma, CA 94975-8054 Phone: 866-459-3074 e-mail: Info@sprinttreo600settlement.com Web site: https://www.sprinttreo600settlement.com/ TAKE-TWO INTERACTIVE: Appeal to Nixed GTA Lawsuit Deal Pending -------------------------------------------------------------- The plaintiffs' interlocutory appeal from an opinion refusing to certify the proposed settlement class in the lawsuit captioned "In Re: Grand Theft Auto Video Game Consumer Litigation, Case No. 1:06-md-01739-SWK," is pending, according to Take-Two Interactive Software, Inc.'s June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. Case Background In July 2005, the defendants -- Take-Two Interactive Software, Inc., and its subsidiary, Rockstar Games -- were subjects of four purported class action suits. Two of the four complaints were filed before the U.S. District Court for the Southern District of New York, one was filed before the U.S. District Court for the Eastern District of Pennsylvania, and the other was filed before the Circuit Court in St. Clair County, Illinois (Class Action Reporter, Jan. 11, 2008). The plaintiffs, alleged purchasers of the defendants' Grand Theft Auto: San Andreas First Edition game manufactured before July 20, 2005, assert that the company engaged in consumer deception, false advertising and breached an implied warranty of merchantability and were unjustly enriched as a result of the company's alleged failure to disclose that Grand Theft Auto: San Andreas contained "hidden" content, which resulted in the game receiving a Mature 17+ (M) rating from the Entertainment Software Rating Board rather than an Adults Only 18+ rating. The Judicial Panel on Multidistrict Litigation later transferred all the cases to the U.S. District Court for the Southern District of New York, which consolidated them under the caption, "In re Grand Theft Auto Video Game Consumer Litigation (No. II), 06-MD-1739 (SWK)(MHD)." Settlement In the last half of 2007, the defendants reached a settlement in the matter. Under the terms of the settlement, class members will be able to claim benefits if they swear that they: (a) bought a copy of Grand Theft Auto: San Andreas before July 20, 2005; (b) were offended and upset by the ability of consumers to modify and alter the game's content using the third- party Hot Coffee modification; (c) would not have bought the game had they known that consumers could modify and alter the game's content using the third-party Hot Coffee modification; and (d) would have returned the game, upon learning the game could be modified and altered, if they thought this possible. Settlement class members who attest to these facts may apply for benefits that range from an exchange of the game disk for an edited copy of Grand Theft Auto: San Andreas to a cash payment of up to $35 for consumers who submit detailed proofs of purchase. The actual value of all cash payments under the settlement will depend on the number of class members that apply for benefits. Take-Two has committed to spend at least $1.025 million on settlement benefits, and the settlement generally caps the defendants' out-of-pocket costs at no more than $2.75 million, in addition to the costs of providing notice to class members and paying a fee to plaintiffs' counsel. In November 2007, the U.S. District Court for the Southern District of New York granted preliminary approval to the settlement of the foregoing consumer class actions and set a date for a hearing on final approval in May 2008. On July 31, 2008, the Court issued an opinion refusing to certify the proposed settlement class. The Court held that, under controlling case law issued after the parties negotiated the settlement, the plaintiffs could no longer meet their burden of showing that the case could proceed on the proposed class basis, regardless of whether the purpose of certification was for litigation or settlement. Had that settlement been approved, the company would have been required to spend at least $1,025,000 on settlement benefits, a majority of which would have taken the form of a contribution to charity. The plaintiffs subsequently applied for, and on April 15, 2009, the U.S. Court of Appeals for the Second Circuit granted, permission to file an interlocutory appeal. A copy of the settlement notice is available at: http://gtasettlement.com/Default.htm The suit is "In Re: Grand Theft Auto Video Game Consumer Litigation, Case No. 1:06-md-01739-SWK," filed in the U.S. District Court for the Southern District of New York, Judge Shirley Wohl Kram, presiding. Representing the plaintiffs is: Seth R. Lesser, Esq. Locks Law Firm PLLC 110 East 55th St. New York, NY 10022 Phone: 888-8LL-FNYC Representing the company is: Jeffrey S. Jacobson, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 Phone: 212-909-6000 TAKE-TWO INTERACTIVE: Consolidated Securities Suit Still Pending ---------------------------------------------------------------- The consolidated class action relating to Grand Theft Auto: San Andreas and option backdating is now under submission with the Southern District of New York Court, according to Take-Two Interactive Software, Inc.'s June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. In February and March 2006, four purported class-action complaints were filed against the company and certain of its then current and former officers and directors in the Southern District of New York Court. The actions were consolidated, and in April 2007, the lead plaintiff filed a consolidated second amended complaint which contained allegations related to purported "hidden content" contained in Grand Theft Auto: San Andreas and the backdating of stock options, including the investigation thereof conducted by the Special Litigation Committee of the Board of Directors and the restatement of our financial statements relating thereto. This complaint was filed against the company, its former Chief Executive Officer, its former Chief Financial Officer, its former Chairman of the Board, its Rockstar Games subsidiary, and one officer and one former officer of its Rockstar Games subsidiary. The lead plaintiff sought unspecified compensatory damages and costs including attorneys' fees and expenses. In April 2008, the Court dismissed, with leave to amend, all claims as to all defendants relating to Grand Theft Auto: San Andreas and certain claims as to the company's former CEO, CFO and certain director defendants relating to the backdating of stock options. In September 2008, the lead plaintiff filed a third amended consolidated complaint seeking to reinstate these claims, which the company opposed. New York-based Take-Two Interactive Software, Inc. -- http://www.take2games.com/-- is a global publisher, developer and distributor of interactive entertainment software, hardware and accessories. The company operates in two segments: publishing and distribution. The publishing segment consists of Rockstar Games, 2K Games, 2K Sports and 2K Play publishing labels. The company develops, markets and publishes software titles for gaming and entertainment hardware platforms, including Sony's PLAYSTATION3 and PlayStation2 computer entertainment systems; Sony's PSP (PlayStationPortable) system; Microsoft's Xbox 360 and Xbox video game and entertainment systems; Nintendo's Wii, GameCube, DS and Game Boy Advance, and for the personal computers and Games for Windows. The company's distribution segment, which includes its Jack of All Games subsidiary, distributes its products, as well as software, hardware and accessories produced by others to retail outlets in North America. TAKE-TWO INTERACTIVE: EA Buyout Offer Suit Deal Pending Approval ---------------------------------------------------------------- The Court of Chancery of the State of Delaware has yet to approve an agreement to settle a shareholder lawsuit against Take-Two Interactive Software Inc. related to a failed buyout offer from videogame company Electronic Arts, Inc. On March 7, 2008, Patrick Solomon, a stockholder of the company, filed a purported class-action complaint with the Court of Chancery of the State of Delaware against the company and certain of its officers and directors. The plaintiff contends that the defendants breached their fiduciary duties by, among other things, allegedly refusing to explore premium offers by Electronic Arts, Inc., to acquire all of the company's shares, enacting a bylaw amendment allegedly designed to entrench the current board by preventing stockholders from nominating and electing alternative directors, agreeing to an amendment to a management agreement with ZelnickMedia and issuing a proxy statement for the 2008 Annual Meeting that allegedly contains misleading and incomplete information. The complaint seeks preliminary and permanent injunctive relief, rescissory and other equitable relief and damages. The plaintiff immediately moved for preliminary injunctive relief, and the parties engaged in expedited discovery proceedings. However, several of the claims have been addressed by the company's voluntary actions in issuing a supplemental proxy statement, rescinding the notice by-law amendment, granting additional time for any present or former stockholders to nominate directors or propose business, and extending the annual meeting date. After the company took such measures, the plaintiff agreed to withdraw his motion for preliminary injunctive relief, and the annual meeting went forward without difficulty (and without any stockholders nominating directors or proposing business). On Dec. 19, 2008, the plaintiff filed a supplement to his complaint. The supplement repeats his prior allegations and also alleges the stockholder vote on the amendment of the company's Incentive Stock Plan and the amendment to the management agreement with ZelnickMedia and the grant of stock thereunder was invalid. On Feb. 17, 2009, the company filed its motion to dismiss all claims in both pleadings. On March 4, 2009, the plaintiff filed a motion to file a second supplement to his complaint. The second supplement contains additional allegations of breaches of fiduciary duties by the directors, and misleading and incomplete disclosure with respect to the proxy statement for the 2009 annual meeting of stockholders. The second supplement also sought to enjoin the vote on the 2009 Stock Incentive Plan at the 2009 annual meeting of stockholders and a declaration that such Plan is invalid and void. On April 3, 2009, the company entered into a settlement in principle of the plaintiff's complaint and both supplements, subject to approval by the Delaware Court. The settlement provides, among other things, for additional disclosure which is contained in a supplement to the company's proxy statement. The settlement does not provide for a payment of monetary damages to the plaintiff or the purported class. The company has opposed an application by the plaintiff's counsel for fees and expenses and expects that any award of fees or expenses will be covered by its existing insurance policies. According to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009, Take-Two believes that the plaintiff's complaint and the two supplements are wholly without merit, but entered into the settlement arrangement solely to save the time and expense of continued litigation. New York-based Take-Two Interactive Software, Inc. -- http://www.take2games.com/-- is a global publisher, developer and distributor of interactive entertainment software, hardware and accessories. The company operates in two segments: publishing and distribution. The publishing segment consists of Rockstar Games, 2K Games, 2K Sports and 2K Play publishing labels. The company develops, markets and publishes software titles for gaming and entertainment hardware platforms, including Sony's PLAYSTATION3 and PlayStation2 computer entertainment systems; Sony's PSP (PlayStationPortable) system; Microsoft's Xbox 360 and Xbox video game and entertainment systems; Nintendo's Wii, GameCube, DS and Game Boy Advance, and for the personal computers and Games for Windows. The company's distribution segment, which includes its Jack of All Games subsidiary, distributes its products, as well as software, hardware and accessories produced by others to retail outlets in North America. TAKE-TWO INTERACTIVE: "Maulano" Securities Suit Remains Stayed -------------------------------------------------------------- Take-Two Interactive Software, Inc. continue to face a purported class-action lawsuit over offers by Electronic Arts, Inc., to acquire all of the company's shares. On April 11, 2008, Michael Maulano, an alleged stockholder, filed a purported class action in New York state court, New York County, against the company and certain of its directors. The allegations are essentially the same as those in the case filed by Patrick Solomon, with an additional complaint about the "poison pill" adopted by the company's Board in March 2008. Because the action was duplicative, the plaintiff agreed to stay all proceedings in the case in favor of the Solomon case. No further developments on the case were reported in the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. New York-based Take-Two Interactive Software, Inc. -- http://www.take2games.com/-- is a global publisher, developer and distributor of interactive entertainment software, hardware and accessories. The company operates in two segments: publishing and distribution. The publishing segment consists of Rockstar Games, 2K Games, 2K Sports and 2K Play publishing labels. The company develops, markets and publishes software titles for gaming and entertainment hardware platforms, including Sony's PLAYSTATION3 and PlayStation2 computer entertainment systems; Sony's PSP (PlayStationPortable) system; Microsoft's Xbox 360 and Xbox video game and entertainment systems; Nintendo's Wii, GameCube, DS and Game Boy Advance, and for the personal computers and Games for Windows. The company's distribution segment, which includes its Jack of All Games subsidiary, distributes its products, as well as software, hardware and accessories produced by others to retail outlets in North America. TORO CO: Sept. '09 Status Conference Set for Consumer Fraud Suit ---------------------------------------------------------------- Status conference in a consolidated consumer fraud class action against The Toro Co. in the U.S. District Court for the Eastern District of Wisconsin over horsepower labels on its lawnmowers has been set for September 2009. On June 3, 2004, eight individuals who claim to have purchased lawnmowers in Illinois and Minnesota filed a lawsuit in Illinois state court against the company and eight other defendants alleging that the horsepower labels on the products the plaintiffs purchased were inaccurate. On May 17, 2006, the plaintiffs filed an amended complaint to add 84 additional plaintiffs and an engine manufacturer as an additional defendant. The amended complaint asserts violations of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act and statutory and common law claims arising from the laws of 48 states. The plaintiffs seek certification of a class of all persons in the U.S. who, beginning Jan. 1, 1994 through the present, purchased a lawnmower containing a two-stroke or four-stroke gas combustible engine up to 30 horsepower that was manufactured or sold by the defendants. The amended complaint seeks an injunction, unspecified compensatory and punitive damages, treble damages under the RICO Act, and attorneys fees. In late May 2006, the case was removed to U.S. District Court for the Southern District of Illinois. On Aug. 1, 2006, all of the defendants, except MTD Products Inc., filed motions to dismiss the claims in the amended complaint. On Aug. 4, 2006, the plaintiffs filed a motion for preliminary approval of a settlement agreement with MTD Products, Inc., and certification of a settlement class. All remaining non-settling defendants have filed counterclaims against MTD Products, Inc. for potential contribution amounts, and MTD Products, Inc. has filed cross claims against the non- settling defendants. On Dec. 21, 2006, another defendant, American Honda Motor Co., notified the company that it had reached an agreement of settlement with the plaintiffs. On March 30, 2007, the court entered an order dismissing plaintiffs complaint, subject to the ability to re-plead certain claims pursuant to a detailed written order to follow. In May 2008, the court issued a memorandum and order that (I) dismissed the RICO claim in its entirety with prejudice; (ii) dismissed all non-Illinois state-law claims without prejudice and with instructions that such claims must be filed in local courts; and (iii) rejected the proposed settlement with MTD. The proposed Honda settlement was not under consideration by the court and was not addressed in the memorandum and order. Also in May 2008, the plaintiffs (i) re-filed the Illinois claims with the court; and (ii) filed non-Illinois claims in federal courts in the District of New Jersey and the Northern District of California with essentially the same state law claims. In June 2008, the plaintiffs filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (the "MDL Panel") that (i) stated their intent to file lawsuits in all 50 states and the District of Columbia; and (ii) sought to have all of the cases transferred for coordinated pretrial proceedings. In August 2008, the MDL Panel issued an order denying the transfer request. Additional lawsuits, some of which included additional plaintiffs, were filed in various federal and state courts asserting essentially the same state law claims. In September 2008, the company and other defendants filed a motion with the MDL Panel that sought to transfer the multiple actions for coordinated pretrial proceedings. In early December 2008, the MDL Panel issued an order that (i) transferred 23 lawsuits, which collectively asserted claims under the laws of 16 states, for coordinated or consolidated pretrial proceedings, (ii) selected the U.S. District Court for the Eastern District of Wisconsin as the transferee district, and (iii) provided that additional lawsuits will be treated as "tag-along" actions in accordance with its rules. An initial hearing was held in the U.S. District Court for the Eastern District of Wisconsin in January 2009. At that hearing, the Court (i) appointed lead plaintiffs' counsel, and (ii) entered a stay of all litigation for 120 days so that the parties could explore mediation. Formal mediation proceedings commenced and on May 28, 2009, the Court extended the litigation stay to Aug. 28, 2009, and re-scheduled the status conference to September 2009. To date, more than 65 lawsuits have been filed in various federal and state courts, which collectively assert claims under the laws of approximately 50 jurisdictions, according to the company's June 5, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 1, 2009. The Toro Company -- http://www.toro.com/-- is engaged in designing, manufacturing and marketing professional turf maintenance equipment and services, turf and micro irrigation systems, landscaping equipment, and residential yard products. The company classifies its operations in two business segments: professional and residential. A third segment called other consists of domestic company-owned distributorships, corporate functions, and Toro Credit Company, a wholly owned financing subsidiary. The company's products are advertised and sold at the retail level under the trademarks of Toro, Exmark, Irritrol, Hayter, Pope, Lawn-Boy and Lawn Genie. Toro manufactures its products in the United States, Mexico, Australia, Italy, and the United Kingdom. UNITED KINGDOM: Court Says Nuclear Test Veterans Can Sue MoD ------------------------------------------------------------ A U.K. High Court has ruled that ex-servicemen who were part of nuclear weapons tests during the 1950s have won the right to sue the Ministry of Defense (MoD) for compensation, Defence Management reports. The High Court ruling could result in the largest class-action suit ever filed against the MoD, according to Defence Management. Defence Management reported that thousands of test veterans have reported severe and rare health affects in the years and decades following the tests. They have argued that they were exposed to high doses of radiation and were not warned about possible health risks nor were they given adequate protection against the blasts. The MoD claimed that it compensates people when it is clear that a liability on their part has occurred. Since many of the test veterans are now extremely old or dead, it would be impossible to directly relate their health problems to nuclear tests that occurred over 50 years ago, reports Defence Management. However, Defence Management reports that the High Court disagreed. "All things being equal, a veteran who believes that he has an illness, injury or disability attributable to his presence at the tests whose case is supported by apparently reputable scientific and medical evidence, should be entitled to his 'day in court,'" Justice Foskett said in his ruling. UNITED PARCEL: Tentatively Settles "Bates" Lawsuit in California ---------------------------------------------------------------- United Parcel Service tentatively settled the purported class- action lawsuit, "Bates, et al. v. United Parcel Service, Inc., Case No. CV-99-02216-THE," by agreeing to allow some deaf and hard-of-hearing employees to compete for jobs driving small delivery vans after special testing and training, Bob Egelko of The San Francisco Chronicle reports. The settlement, which awaits approval by from the U.S. District Court for the Northern District of California, would apply to about 1,000 workers and 1,250 vehicles at UPS, the world's largest private package carrier, according to attorney Laurence Paradis, executive director of Disability Rights Advocates in Berkeley, reports The San Francisco Chronicle. In 1999, Disability Rights Advocates and Schneider & Wallace on behalf of hundreds of deaf applicants and employees of United Parcel Service filed a nationwide class action against the company that was essentially brought under the Americans with Disabilities Act (Class Action Reporter, April 30, 2007). The suit sought to end widespread discrimination faced by the deaf employees and applicants at UPS in relation to promotion opportunities, communication barriers, and exclusion from entire job classifications, such as driving positions. In April 2003, the case went to trial. Several months into the trial the parties reached a settlement agreement regarding the employment accommodation issues. The settlement resulted in injunctive relief: -- sign language interpreters, -- communication aids for current employees and applicants, -- emergency alerts, -- text telephones, and -- equal access to promotional opportunities for deaf employees. The settlement also provided $5 million in damages for class members. The sole remaining issue in the case after the settlement was UPS's across-the-board policy requiring applicants for all driver positions to pass a Department of Transportation hearing test intended for vehicles over 10,000 pounds, even for positions driving vehicles under 10,000 pounds. Trial on the "driver issue" (UPS's use of the DOT hearing test) resumed in September 2003 and continued for three months. After a year of deliberation, Judge Thelton E. Henderson ruled that UPS could no longer use the DOT hearing standard to exclude deaf employees from driving UPS vehicles under 10,000 pounds. Under the ruling, UPS is required to individually assess each deaf driving applicant based on his or her driving qualifications, rather than using the DOT test. The San Francisco Chronicle reported that the dispute involves trucks weighing 10,000 pounds or less, a small percentage of UPS' fleet of nearly 100,000 vehicles. U.S. Department of Transportation regulations require drivers of trucks weighing more than 10,000 pounds to pass hearing tests, but the company has applied the same standards to its smaller vehicles. UPS argued that deaf drivers were more likely to get into accidents because they couldn't hear sirens, screeching tires or other danger signals. Plaintiffs in the nationwide suit said they were unfairly confined to low-level jobs as loaders and sorters despite records that showed they were safe drivers, according to The San Francisco Chronicle. After a two-month trial, U.S. District Judge Thelton Henderson ruled in 2004 that the company was discriminating illegally against deaf people with good driving records. But a federal appeals court ruled in December 2007 that he had used the wrong standard and ordered him to reconsider, reports The San Francisco Chronicle. Negotiations since that ruling led to the recent settlement, Mr. Paradis told The San Francisco Chronicle. The agreement requires the company to use a more lenient hearing standard, established by an expert panel, for qualified employees. Mr. Paradis told The San Francisco Chronicle that those who are completely deaf won't meet the standard, but many who consider themselves deaf or substantially impaired will pass the test and qualify for training, which would probably include sign-language interpreters and other communication aids. After a year, the two sides would assess the results and negotiate changes or a permanent extension, referring any disputes to an arbitrator. The company agreed to pay $35,000 to each of seven employees who filed the suit, and $5.25 million to their lawyers, The San Francisco Chronicle reports. Other employees who believe they were wrongly barred from drivers' jobs, dating back to mid-1997, can file individual damage claims with federal and state civil rights agencies, according to Mr. Paradis. The suit is "Bates, et al. v. United Parcel Service, Inc., Case No. CV-99-02216-THE," pending in the U.S. District Court for the Northern District of California under Judge Thelton E. Henderson with referral to Judge James Larson. Representing the plaintiffs are: Laurence W. Paradis, Esq. (larryp@dralegal.org) Disability Rights Advocates 2001 Center Street, 3rd Floor, Berkeley, CA 94704 Phone: 510-665-8644 Fax: 510-665-8511, E-mail: - and - Todd M. Schneider, Esq. (tschneider@schneiderwallace.com) Schneider & Wallace 180 Montgomery Street, Suite 2000 San Francisco, CA 94104, Phone: 415-421-7100 Fax: 415-421-7105 Representing the defendant is: Christopher J. Martin, Esq. (cjmartin@gibsondunn.com) Gibson Dunn & Crutcher LLP 1881 Page Mill Road Palo Alto, CA 94304 Phone: (650) 849-5300 VERIFONE HOLDINGS: Calif. Consolidated Securities Suit Pending -------------------------------------------------------------- Discovery has not yet commenced in the consolidated securities fraud class-action lawsuit against VeriFone Holdings Inc. in the U.S. District Court for the Northern District of California. On or after Dec. 4, 2007, several securities class-action claims were filed against the company and certain of the company's officers. The various complaints specify different class periods, with the longest proposed class period being Aug. 31, 2006, through Dec. 3, 2007. The lawsuits have been consolidated in the U.S. District Court for the Northern District of California under the caption "In re VeriFone Holdings, Inc. Securities Litigation, Case No. 07-6140 MHP." On March 17, 2008, the court held a hearing on the plaintiffs' motions for appointment of lead plaintiff and lead counsel and in May 2008, the court requested additional briefing on these matters, which was submitted in June 2008. Each of the consolidated actions allege, among other things, violations of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 thereunder, based on allegations that the company and the individual defendants made false or misleading public statements regarding the company's business and operations during the putative class periods, and seeks unspecified monetary damages and other relief (Class Action Reporter, Oct. 9, 2008). On Aug. 22, 2008, the Court appointed plaintiff National Elevator Fund lead plaintiff and its attorneys lead counsel. Plaintiff filed its consolidated amended class action complaint on Oct. 31, 2008, and the company filed its motion to dismiss on Dec. 31, 2008. The consolidated amended complaint asserts claims under the Securities Exchange Act Sections 10(b), 20(a), and 20A and Securities and Exchange Commission Rule 10b-5 for securities fraud and control person liability against the company and certain of its current and former officers and directors, based on allegations that the company and the individual defendants made false or misleading public statements regarding its business and operations during the putative class periods and seeks unspecified monetary damages and other relief. The Court granted the company's motion on May 26, 2009, and dismissed the consolidated amended class action complaint with leave to amend within 30 days of the ruling. The company's answer or responsive motion is due within 30 days of the filing of a second amended class action complaint. Discovery has not yet commenced and is not expected to do so until after the filing of a second amended class action complaint, the filing by the company of a motion to dismiss the second amended class action complaint, and a ruling on the motion to dismiss, according to its June 4, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. The suit is "In re VeriFone Holdings, Inc. Securities Litigation, Case No. 07-6140 MHP," filed in the U.S. District Court for the Northern District of California, Judge Marilyn H. Patel, presiding. Representing the plaintiffs are: Daniel C. Girard, Esq. (dcg@girardgibbs.com) Girard Gibbs LLP 601 California Street, Suite 1400 San Francisco, CA 94104 Phone: 415-981-4800 Fax: 415-981-4846 Francis A. Bottini, Jr., Esq. (frankb@johnsonbottini.com) Johnson Bottini, LLP 655 W. Broadway, Suite 1400 San Diego, CA 92101 Phone: 619-230-0063 Fax: 619-233-5535 - and - Eli Greenstein, Esq. (Elig@csgrr.com) Coughlin Stoia Gellar Rudman & Robbins LLP 100 Pine Street, Suite 2600 San Francisco, CA 94111 Phone: 415-288-4545 Fax: 415-288-4534 Representing the defendants is: Michael Howard Steinberg, Esq. (steinbergm@sullcrom.com) Sullivan & Cromwell 1888 Century Park East Los Angeles, CA 90067 Phone: 310-712-6600 Fax: 310-712-8800 VERIFONE HOLDINGS: Stockholders Suit Pending in Tel-Aviv, Israel ---------------------------------------------------------------- VeriFone Holdings, Inc., continues to face a purported stockholders' class-action lawsuit in Tel-Aviv, Israel, over the publication of erroneous financial reports. On Jan. 27, 2008, a class-action complaint was filed against the company in the Central District Court in Tel Aviv, Israel, on behalf of purchasers of the company's stock on the Tel Aviv Stock Exchange. The complaint seeks compensation for damages allegedly incurred by the class of plaintiffs due to the publication of erroneous financial reports. On May 25, 2008, the court held a hearing on the company's motion to dismiss or stay the proceedings, after which the court requested that the plaintiff and the company submit additional information to the Court with respect to the applicability of Israeli law to dually registered companies. This additional information was submitted to the court in June 2008 and the parties currently awaiting the court's ruling on this issue (Class Action Reporter, Oct. 9, 2008). On Sept. 11, 2008, the Israeli District Court ruled in the company's favor, holding that U.S. law would apply in determining its liability. On Oct. 7, 2008, plaintiffs filed a motion for leave to appeal the District Court's ruling to the Israeli Supreme Court. The company's response to plaintiffs' appeal motion was filed on Jan. 18, 2009. Because the company's motion to stay will depend upon the Supreme Court's ruling, the District Court has stayed its proceedings until the Supreme Court rules on plaintiffs' motion for leave to appeal, according to the company's June 4, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2009. VeriFone Holdings, Inc. -- http://www.verifone.com/-- is a global provider of technology that enables electronic payment transactions and value-added services at the point of sale. The company's system solutions consist of point of sale electronic payment devices that run the company's and third-party operating systems, security and encryption software and certified payment software, as well as third party, value-added applications. VeriFone Holdings' system solutions process a range of payment types, including signature and PIN-based (personal identification number) debit cards, credit cards, contactless/radio frequency identification, cards, smart cards, pre-paid gift and other stored-value cards, electronic bill payment, check authorization and conversion, signature capture and electronic benefits transfer. The company's electronic payment systems are available in several distinctive modular configurations, offering customers flexibility to support a variety of connectivity options. New Securities Fraud Cases OPPENHEIMER AMT-FREE: Stull Stull Files Securities Fraud Lawsuit ---------------------------------------------------------------- Stull Stull & Brody filed a class-action lawsuit in the United States District Court for the District of New Jersey on behalf of persons who purchased shares of Oppenheimer AMT-FREE Municipals Fund (NASDAQ: OPTAX) (NASDAQ: OTFBX) (NASDAQ: OMFCX) from May 13, 2006 through October 21, 2008. This action will be transferred for pre-trial proceedings pursuant to an order of the Joint Panel on Multi-District Litigation to the District of Colorado. The complaint alleges that Oppenheimer Funds, Inc. and certain of its Trustees violated the Securities Act of 1933 by issuing prospectuses which misled investors concerning the risks of investing in the Fund. These undisclosed risks are alleged to have been the cause of a severe decline in the value of the Fund's shares, far exceeding the decline of competing municipal bond funds. A request for lead plaintiff status must satisfy certain criteria and be made on or before July 13, 2009. For more details, contact: Howard T. Longman, Esq. (TSVI@AOL.COM) Stull, Stull & Brody 6 East 45th Street New York, N.Y. 10017 Phone: 1-800-337-4983 Asbestos Alerts ASBESTOS LITIGATION: Sealed Air Facing MPERS Case in New Jersey ---------------------------------------------------------------- Sealed Air Corporation is a defendant in the case styled MPERS v. Sealed Air Corporation, et al. (Case No. 03-CV-4372) in the U.S. District Court for the District of New Jersey (Newark), according to a Company report, on Form 8-K, filed with the Securities and Exchange Commission on June 11, 2009. This lawsuit seeks class action status on behalf of all persons who purchased or otherwise acquired securities of the Company during the period from March 27, 2000 through July 30, 2002. The lawsuit named the Company and five current and former officers and directors of the Company as defendants. One of these individuals and the Company remain as defendants after a partial grant of the defendants' motion to dismiss the action. The plaintiff's principal allegations against the defendants are that during the above period the defendants materially misled the investing public, artificially inflated the price of the Company's common stock by publicly issuing false and misleading statements and violated U.S. Generally Accepted Accounting Principles, or U.S. GAAP, by failing to properly account and accrue for the Company's contingent liability for asbestos claims arising from past operations of W. R. Grace & Co. The plaintiffs seek unspecified compensatory damages and other relief. On April 27, 2009, the Company reached an agreement in principle with the plaintiffs to settle the MPERS v. Sealed Air Corporation, et al. case, subject to documentation and Court approval. The agreement provides for payment of US$20 million, which will be fully funded by the Company's primary and excess insurance carriers. If the settlement in this case is not documented, executed and approved by the Court, then, should the Court determine that the Company is liable in this case, it could be required to pay substantial damages. Based in Elmwood Park, N.J., Sealed Air Corporation's largest product segment, Food Packaging, produces Cryovac shrink films, absorbent pads, and foam trays used by food processors and supermarkets to protect meat and poultry. The Company's Protective Packaging segment produces Bubble Wrap, Instapak foam, Jiffy envelopes, and Fill-Air inflatable packaging systems. ASBESTOS LITIGATION: Todd Shipyards Faces 535 Claims at March 29 ---------------------------------------------------------------- Todd Shipyards Corporation faces 535 asbestos claims as of March 29, 2009, of which 12 claims are "malignant" and 523 claims are "non-malignant," according to the Company's annual report filed with the Securities and Exchange Commission on June 12, 2009. The Company faced about 525 asbestos-related claims, of which 14 were "malignant" and 511 were "non-malignant." (Class Action Reporter, Feb. 13, 2009) The Company is named as a defendant in civil actions by parties alleging damages from past exposure to toxic substances, generally asbestos, at its Seattle shipyard and closed former facilities. In addition to the Company, the cases generally include other ship builders and repairers, ship owners, asbestos manufacturers, distributors and installers, and equipment manufacturers as defendants, and arise from injuries or illnesses allegedly caused by exposure to asbestos or other toxic substances. The relief sought in all cases varies greatly by jurisdiction and claimant. Included in 457 cases open as of March 29, 2009 are 535 claimants. The exact number of claimants is not determinable as 82 of the open cases include multiple claimant filings against 20-100 defendants. The filings do not indicate which claimants allege liability against the Company. The previously stated 535 claimants is the Company's best estimate. About 217 cases do not assert any specific amount of relief sought. About 153 cases assert on behalf of each claimant a claim for compensatory damages of US$2 million and punitive damages of US$20 million against 20-100 defendants. About 37 cases assert US$5 million to US$20 million in compensatory and US$5 million to US$20 million in punitive damages on behalf of each claimant against 20-100 defendants. About 46 cases assert US$1 million to US$5 million in compensatory and US$5 million to US$10 million in punitive damages on behalf of each claimant against 20-100 defendants. About four cases seek compensatory damages of less than US$1 million per claim. Bodily injury reserves decreased from US$5.4 million at March 30, 2008 to US$5 million at March 29, 2009. Bodily injury insurance receivables also decreased from US$4 million at March 30, 2008 to US$3.8 million at March 29, 2009. Based in Seattle, Todd Shipyards Corporation is a private shipyard in the Pacific Northwest that builds, repairs, maintains, and overhauls commercial and government vessels. ASBESTOS LITIGATION: Good Shepherd School Settles AHERA Breaches ---------------------------------------------------------------- The mid-Atlantic office of the U.S. Environmental Protection Agency, on June 12, 2009, announced that the Church of the Good Shepherd has settled violations of a federal law on the management of asbestos materials at The Good Shepherd School, 1401 Carollton Ave., Baltimore, according to an EPA press release dated June 12, 2009. The Asbestos Hazard Emergency Response Act (AHERA) requires owners and operators of buildings in which private non-profit schools are operated to conduct a re-inspection of all asbestos- containing building material in each school building once every three year and to conduct six-month periodic surveillance inspections. The schools must also develop a management plan for asbestos- containing materials, detailing procedures to prevent asbestos releases. The management plan must be available at the school, with annual notification to parent, teacher and employee organizations of the plan and any asbestos abatement activities. Schools must train personnel on AHERA compliance and provide at least two hours of training in asbestos awareness to the school's custodial and maintenance staff. The school spent US$17,645 to address the various AHERA issues and is now in compliance. As a result, EPA has assessed The Church of the Good Shepherd a final penalty of zero dollars for its efforts to come into compliance. EPA does not allege that students or other building occupants were exposed to asbestos as a result of these violations. During a 2008 inspection conducted by the Maryland Department of the Environment, several violations were discovered, including a failure to re-inspect asbestos-containing materials every three years � the school had not been inspected since 1998. The inspection also found that the church had failed to send annual notifications to parents, teachers, and employee organizations about the availability of the asbestos management plan as required. The settlement announced on June 12, 2009 is part of the EPA's ongoing efforts to work throughout the mid-Atlantic states to reduce asbestos hazards in schools. EPA offers compliance assistance for public, private, charter and parochial schools, and has conducted outreach at educational conferences. ASBESTOS LITIGATION: Stamp Upholds Ruling in CSX Case on June 4 ---------------------------------------------------------------- U.S. District Judge Frederick Stamp, on June 4, 2009, affirmed Magistrate Judge James Seibert's May 2009 ruling, stating that CSX Transportation Inc. could see correspondence between Dr. Ray Harron and the firm of Peirce, Raimond and Coulter, which is headed by Robert Peirce, Esq., The West Virginia Record reports. Judge Stamp has set trial to start Aug. 11, 2009 on CSX's claim that Mr. Peirce and Dr. Harron conspired to fabricate asbestos claims. CSX seeks to recover the cost of defending and settling the claims. Judge Stamp's order allows CSX to see all communications between the firm and Dr. Harron since 1999, including consulting agreements and other contracts. The order allows CSX to see any documents relating to expenses Dr. Harron or the firm created or retained in connection with Dr. Harron's review of X-rays. The order allows CSX to see the firm's internal correspondence concerning selection and retention of consulting physicians. By adopting Judge Seibert's entire order, Judge Stamp adopted Judge Seibert's statement that he would consider sanctions and costs at a later date. Mr. Peirce and Dr. Harron have objected to sanctions, arguing that CSX did not ask for them. ASBESTOS LITIGATION: 16 New Cases Filed May 18-22 in Ill. Court ---------------------------------------------------------------- During the week of May 18, 2009 through May 22, 2009, about 16 new asbestos lawsuits were filed in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. These cases are: -- (Case No. 09-L-520) Mary E. Anderson of Missouri, a cleaning crew member aboard the USS Admiral cruise ship and a nurse's aide at the Missouri Pacific Railroad Hospital, claims mesothelioma. She says she was also exposed to asbestos fibers secondarily through her husband, who worked as a molder for Granite City Steel. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., represent Mrs. Anderson. -- (Case No. 09-L-512) Robbie J. Dempsey claims her deceased husband, Clyde D. Dempsey, developed mesothelioma after his work as a pipefitter and plumber. Andrew O'Brien, Esq., Christopher Thoron, Esq., Christina J. Nielson, Esq., Bartholomew J. Baumstark, Esq., and Gerald J. FitzGerald, Esq., of the O'Brien Law Firm in St. Louis represent Mrs. Dempsey. -- (Case No. 09-L-531) Victor Lee and Priscella Dillbeck of Arizona claim Mr. Dillbeck developed mesothelioma after his work as an apprentice, machinist and millwright. Mr Dillbeck says he also was a member of the Local 448 Carpenter/Millwright Union for 31 years. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., represent Mr. Dillbeck. -- (Case No. 09-L-521) Jacob L. and Doris Fullmer of Indiana claim Mr. Fullmer developed mesothelioma after his work as a hand sander, in the U.S. Navy, material handler, bottler and steamfitter. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., represent the Fullmers. -- (Case No. 09-L-502) Bobby Haley of Arizona, mechanic, laborer, millwright and truck driver, claims mesothelioma. Timothy F. Thompson Jr., Esq., of SimmonsCooper in East Alton, Ill., represents Mr. Haley. -- (Case No. 09-L-509) Clarence and JoAnne Haskell claim Mr. Haskell developed mesothelioma after his work as a laborer, operator and finisher, parts manager and purchaser, salesman, owner, operator, distributor and carpenter. Randy L. Gori, Esq., of Gori, Julian and Associates in Alton, Ill., represents the Haskells. W. Mark Lanier, Esq., Patrick N. Haines, Esq., Angela B. Greenburg, Esq., Sam T. Richard, Esq., Bridget Baragona, Esq., and Lauren H. Ware, Esq., of The Lanier Law Firm in Houston will serve of counsel. -- (Case No. 09-L-519) Elizabeth Marshall of Kentucky alleges her deceased husband, Thomas Marshall, developed asbestosis and bilateral pleural plaques after his work as an assistant unit operator, unit operator, assistant shift engineer and shift engineer at various locations. Christopher R. Guinn, Esq., Christopher J. Levy, Esq., Perry J. Browder, Esq., and John A. Barnerd, Esq., of SimmonsCooper in East Alton, Ill., represent Mrs. Marshall. -- (Case No. 09-L-514) William Z. McClintock of Ohio, who served in the U.S. Army and worked for Soil Conservation Service, Brown Insulation, Goodyear Truck Tire Center, MTD, Graber Metal Works,McClintock Energy, Johnson Controls World Services and Ohio Professional Energy Consortium, claims mesothelioma. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will be representing Mr. McClintock. -- (Case No. 09-L-528) Wilfred L. Miller of Virginia, a laborer, lineman, foreman and self-employed mechanic, claims mesothelioma. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., will be representing Mr. Miller. -- (Case No. 09-L-530) Phyllis A. and John Nelson of Indiana claim Mrs. Nelson developed mesothelioma after her work as a laborer at Westinghouse Electric Supply and as a teacher at Homestead High School. She was also secondarily exposed to asbestos through her brothers. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will be representing the Nelsons. -- (Case No. 09-L-259) Dorathea R. and Joe L. Pierce claim Mrs. Pierce developed lung cancer after her work as a supervisor within the Vanity Fair Intimates textile manufacturing plant. She also worked as a sales associate for Marvin's Building Materials, according to the complaint. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will be representing the Pierces. -- (Case No. 09-L-511) Barbara Pratt claims her deceased father, Clifford Richardson, developed mesothelioma after his work as a floor tile layer and carpenter. Andrew O'Brien, Esq., Christopher Thoron, Esq., Christina J. Nielson, Esq., Bartholomew J. Baumstark, Esq., and Gerald J. FitzGerald, Esq., of O'Brien Law Firm in St. Louis, represent Mrs. Pratt. -- (Case No. 09-L-506) Shirley Mae Roach of Texas claims her deceased husband, William Albert Roach, developed mesothelioma after his work in the airman first class, at the March and Travis Air Force Bases and at Wedron Silica. She claims her husband also worked as a plant manager and at R&R Construction. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., represent Mrs. Roach. -- (Case No. 09-L-503) Alan Steinberg of Texas claims his deceased father, Robert Steinberg, developed mesothelioma after his work at various locations. Randy S. Cohn, Esq., of SimmonsCooper in East Alton, Ill., represents Mr. Steinberg. -- (Case No. 09-L-504) Charles J. Turner of Alabama claims his deceased father, Charles B. Turner, developed mesothelioma after his work as a mechanic, plasterer and logger at various locations. Shane F. Hampton, Esq., and Paul M. Dix, Esq., of SimmonsCooper in East Alton, Ill., represent Charles J. Turner. -- (Case No. 09-L-513) Gwen Watts claims mesothelioma on behalf of her deceased husband, Virgil L. Watts, who worked as a pipefitter and plumber at various locations. Mr. Watts also worked for the U.S. Navy. Andrew O'Brien, Esq., Christopher Thoron, Esq., Christina J. Nielson, Esq., Bartholomew J. Baumstark, Esq., and Gerald J. FitzGerald, Esq., of the O'Brien Law Firm in St. Louis, represent Mrs. Watts. ASBESTOS LITIGATION: 11 Actions filed May 25 to 29 in Ill. Court ---------------------------------------------------------------- During the week of May 25, 2009 through May 29, 2009, a total of 11 new asbestos lawsuits were filed in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. These cases are: -- (Case No. 09-L-532) Robert K. Anderson Sr. and Terri Anderson of Wisconsin claim Mr. Anderson developed lung cancer after his work as a laborer at C.R. Meyers and Youg's, as an insulator at Combustion Engineer, as an insulator at Taylor Insulation, and as a cable splicer at Solarus. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., represent the Andersons. -- (Case No. 09-L-555) Patricia L. Duncan claims mesothelioma on behalf of her deceased husband, Charles Duncan, who worked from as a carpenter and millwright. Andrew O'Brien, Esq., Christopher Thoron, Esq., Christina J. Nielson, Esq., Bartholomew J. Baumstark, Esq., and Gerald J. FitzGerald, Esq., of the O'Brien Law Firm in St. Louis, represent Mrs. Duncan. -- (Case No. 09-L-539) Annette Jarvis of Kansas claims her deceased husband, Richard J. Jarvis, developed lung cancer after serving in the U.S. Navy and working as a laborer at Union Pacific Railroad. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., represent Mrs. Jarvis. -- (Case No. 09-L-536) Rosalee Klataske of Missouri claims mesothelioma on behalf of her deceased father, Billy Lee Fast, a farmhand and factory worker at. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of SimmonsCooper in East Alton, Ill., represent Mrs. Klastaske. -- (Case No. 09-L-533) Mary E. Lemberger claims mesothelioma on behalf of her deceased husband, Jerome Lemberger, who served in the U.S. Navy as an electrician's mate and who worked as an electrical engineer at various locations. Andrew O'Brien, Esq., Christopher Thoron, Esq., Christina J. Nielson, Esq., Bartholomew J. Baumstark, Esq., and Gerald J. FitzGerald, Esq., of the O'Brien Law Firm in St. Louis, represent Mrs. Lemberger. -- (Case No. 09-L-535) Vincenzo LoGrasso of California, a cook, chef, kitchen helper and restaurant owner/operator, claims mesothelioma. Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind M. Robertson, Esq., of SimmonsCooper in East Alton, Ill., represent Mr. LoGrasso. -- (Case No. 09-L-549) James Lombardi, a home builder, refrigerator and furnace cleaner, carpenter, box car cleaner and mechanic, claims mesothelioma. He says he was also exposed to asbestos fibers through his father, who worked as an open hearth, grinder and chipper. Randy L. Gori, Esq., of Gori, Julian and Associates in Alton, Ill., represents Mr. Lombardi. W. Mark Lanier, Esq., Patrick N. Haines, Esq., Angela B. Greenberg, Esq., Sam T. Richard, Esq., Bridget Baragona, Esq., and Lauren H. Ware, Esq., of The Lanier Law Firm in Houston, will be representing Mr. Lombardi. -- (Case No. 09-L-548) Carlyle Pietro of Pennsylvania, an auto service man, carpenter, painter, laborer, shipping department clerk, foreman, sailor and storekeeper in the U.S. Navy, claims mesothelioma. T. Barton French Jr., Esq., and Nate Mudd, Esq., of French and Mudd in St. Louis, represent Mr. Pietro. -- (Case No. 09-L-545) Jason Smith of Tennessee claims his deceased father, Clayton Smith, developed mesothelioma after his work as an insurance and medical claims adjustor. Timothy F. Thompson Jr., Esq., of SimmonsCooper in East Alton, Ill., represents Mr. Smith. -- (Case No. 09-L-538) Robert G. Swaim of Arkansas, a fabricator, tester and analyzer, claims mesothelioma. Mr. Swaim says he was also secondarily exposed to asbestos through his father, who worked as a carman, and his mother, who worked at AT&T. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Edwardsville, Ill., represent Mr. Swaim. -- (Case No. 09-L-537) Larry Williams of Illinois, an auto mechanic, forklift operator, line worker, machinist, industrial/auto repairman and laborer, claims mesothelioma. T. Barton French Jr., Esq., and Nate Mudd, Esq., of French and Mudd in St. Louis, represent Mr. Williams. ASBESTOS LITIGATION: Court Issues $10T Fine to United Gilsonite ---------------------------------------------------------------- Judge Mary Johnston of the Superior Court of the State of Delaware, New Castle County, issued a US$10,000 fine to Scranton, Pa.-based United Gilsonite Laboratories, wasted the court's time by acting in bad faith at mediation in an asbestos lawsuit, Mesothelioma News reports. The Company wasted the court's time and resources by pushing cases to trial as part of its settlement strategy, contrary to Delaware's rules governing alternative dispute resolution. The case proceeded through jury selection and halfway through trial when the case settled. The Company said that it decided to settle after one of its employees testified at trial. However, Judge Johnston found that there was nothing significantly different from the same employee's deposition testimony to make a difference at trial. Judge Johnston said that the Company's bad faith conduct needlessly burdened the court, bailiffs, clerks, jury services, court reporters, the judge, jurors, and the plaintiffs. The US$10,000 fine will go to Delaware's Combined Campaign for Justice, which provides legal service to the poor. ASBESTOS LITIGATION: Devoy's Widow Seeks GBP1Mil in Payout Claim ---------------------------------------------------------------- Alex Devoy's widow, 65-year-old Carole Devoy, is suing for a record GBP1 million in damages over Mr. Devoy's death from asbestosis, the Chronicle reports. Mr. Devoy died at the age of 68 from a lung tumor caused by exposure to asbestos in the Merchant Navy and in dockyards. Mrs. Devoy, of West Rainton, Houghton-le-Spring, County Durham, England, says he was determined to look after her himself for the rest of her days. However, after Mr. Devoy's death, she had no choice but to pay for professional carers, at a cost of over GBP2,000 a month. Mrs. Devoy was diagnosed with Parkinson's Disease 13 years ago. Judge Reddihough is expected to reserve his ruling on Mrs. Devoy's claim until a later date. The issue of liability for Mr. Devoy's illness and death is no longer contested, but the judge has to assess the compensation owed to his widow for her loss. ASBESTOS LITIGATION: Action v. Vale Inco Europe Ongoing in Wales ---------------------------------------------------------------- An asbestos lawsuit filed against Vale Inco Europe Ltd is ongoing in Wales, Mesothelioma & Asbestos Awareness Center reports. A group of Welsh workers who were exposed to asbestos on the job are at the center of an ongoing asbestos trial. The workers were exposed to asbestos while performing routine maintenance work on a furnace. The furnace, located at the Inco Company work site in Clydach, Wales, contained asbestos. As the men worked to strip away corroded metal and brickwork from the furnace, they were exposed to thermal insulating material that contained asbestos. The Inco incident occurred in 2007, but is just now going to court. The incident caused charges to be brought forth against Vale Inco Europe. The Company is being charged with four offenses under the Control of Asbestos Regulations 2006. The Company has pleaded guilty to all four counts. However, lawyers in the case have argued that the Company worked rapidly to prevent the spread of toxic asbestos materials after the incident. The hearing is expected to resume in Cardiff, Wales, on Aug. 6, 2009. ASBESTOS LITIGATION: Judge Rules on Radiologists' Case on May 29 ---------------------------------------------------------------- U.S. District Judge Eduardo Robreno, who in February 2009, ordered three radiologists (Jay Segarra, Laminaraya Rao, and Richard Bernstein) to produce all information about their X- rays, declared the matter moot on May 29, 2009, The Madison St. Clair Record reports. Judge Robreno cancelled hearings on qualifications of Dr. Segarra, Dr. Rao and Dr. Bernstein under Supreme Court rules from a decision named Daubert. Dr. Segarra's lawyer, Matthew Mestayer, Esq., of Biloxi, Miss., moved in March 2009 for reconsideration of the February 2009 order but decided in May 2009 to make it moot. Judge Robreno's order did not identify the firms whose clients dropped their claims in order to pry the radiologists from the court's grip. The omission illustrates Judge Robreno's balance between mass litigation and individual facts as he rapidly distills valid claims from the fog of national asbestos litigation. He took over the docket in 2008 by appointment of the U.S. Judicial Panel on Multi District Litigation. Finding an order in place that would split a suit against many defendants into separate suits, Judge Robreno decided to enforce it. The strategy turned tens of thousands of suits into more than three million, but asbestos firms failed to follow through on about half. Defendants rejoiced and their leading lawyer, Marcy Croft, Esq., of Jackson, Miss., moved to dismiss about 1.5 million claims. Judge Robreno answered that he would not grant mass orders but would hear motions to show cause why he should not dismiss specific claims. He recruited magistrates to run settlement conferences. Judge Robreno resolved about 500,000 claims from January 2009 through April 2009. ASBESTOS LITIGATION: Vedanta to Raise Bid for Asarco LLC Offer ---------------------------------------------------------------- The Wall Street Journal, on June 14, 2009, reported that Vedanta Resources PLC will increase the note portion of its offer to take Asarco LLC out of bankruptcy, Reuters reports. The Journal reported that Sterlite Industries, a Vedanta subsidiary, will increase to US$770 million from US$600 million the note portion of its offer -- valued at between US$2 billion and US$3 billion, including liabilities. Sterlite will also improve its terms of payment to asbestos claimants, a critical group of creditors who had been seeking a settlement of personal-injury claims arising from Asarco's operations, the paper reported, citing people familiar with a term sheet provided to a bankruptcy judge in Texas. Early in June 2009, rival bidder Grupo Mexico S.A.B. de C.V. said it has raised the cash component of its offer for Asarco, which is its U.S. subsidiary, as it sought to top Sterlite's bid. Grupo Mexico said it would give US$1.55 billion to Asarco, lifting the total amount of cash available for distribution to the Company's creditors to US$2.9 billion. Grupo Mexico, which lost control of Asarco's board due to the bankruptcy, had previously offered US$1.3 billion in cash and a US$250 million loan. Asarco filed for bankruptcy in 2005 amid more than US$1 billion in environmental damage and asbestos claims. Sterlite has offered US$1.7 billion in cash and debt securities for Asarco. ASBESTOS LITIGATION: Abatement at Deutsche Bank Halted on June 9 ---------------------------------------------------------------- The asbestos abatement and ongoing demolition at the former Deutsche Bank building in New York was brought to a halt on June 9, 2009, Mesothelioma.com reports. Work on the building was stopped after a broken safety switch was discovered by FDNY (Fire Department City of New York) firemen. Originally, the firemen were called to the scene after smoke was reported. The smoke was caused by a battery-powered forklift that had overheated. Firefighters unplugged the forklift, which stopped the smoke. Then, workers at the site had hit a switch on the air filtration system. The system, which is on site to contain contaminants like asbestos, malfunctioned. This then lead to a stop-work order at the site. The former Deutsche Bank building was damaged during 9/11, and has faced intense scrutiny due to the asbestos issues plaguing the site. ASBESTOS LITIGATION: Korea Gov't. Has 110 Cases from Closed Mine ---------------------------------------------------------------- South Korea's Ministry of Environment, on June 12, 2009, confirmed that nearly one in two residents (110 out of 215 sampled residents) living in Hongseong and Boryeong near a closed mine in South Chungcheong Province had lung diseases caused by inhaling asbestos, The Korea Times reports. Of the 110, about 55 were diagnosed with pneumoconiosis, which can develop into lung cancer. About 87 were suffering from thickened pleura. The residents asked the government to conduct health checkups on all other people living nearby. The mine in Hongseong used to be the largest in Asia during the Japanese colonial rule (1910-1945). The facility was closed in 1983. However, the residents claim that asbestos from the mine has and is putting their health at great risk. They said elderly relatives, who have already passed away, always complained about chest pains, breathing problems and others, and blamed the mine. South Chungcheong provincial government is conducting research on 3,700 residents, and the results are expected to trigger mass compensation lawsuits. On the other hand, the Ministry said the same research on residents near a factory using asbestos in the port city Busan showed no significant relevance between the substance and disease - one person was diagnosed with asbestosis. ASBESTOS LITIGATION: Caswell Group Supports Daily Mirror Crusade ---------------------------------------------------------------- Caswell Group, an asbestos removal contractor, on June 11, 2009, announced their support for the Daily Mirror's "asbestos timebomb" campaign and warned schools in the United Kingdom not to leave it too late to plan this summer's asbestos removal works, PRWeb reports. The Caswell Group reminds local authorities and schools that now is the time to plan out all asbestos removal works for the summer break. It comes at a time when campaigners and experts are estimating that 90 percent of U.K. schools contain asbestos. According to the Daily Mirror, between 1980 and 2005, 178 teachers died from mesothelioma, and worryingly the number is rising. Lee Caswell, Marketing Director explains, "We know this a daunting subject for Headteachers and we are here to help. We have a proven track record and considerable experience in removing asbestos from UK schools. We work closely with our clients and tailor each solution precisely to their needs." Full information can be found at www.caswell-group.co.uk ASBESTOS LITIGATION: Split Ruling Issued in AstenJohnson Action ---------------------------------------------------------------- The U.S. Court of Appeals, Third Circuit, issued split rulings in a case involving asbestos styled AstenJohnson, Inc., Appellant v. Columbia Casualty Company; American Insurance Company. Circuit Court Judges Dolores K. Sloviter, Walter K. Stapleton, and Wallace Tashima entered judgment in Case No. 07-2305 on April 2, 2009. AstenJohnson, Inc. made asbestos dryer felts and other materials used in the paper industry. Appellees Columbia Casualty Company and American Insurance Company issued US$52 million of comprehensive liability insurance to Asten in 1981 and 1982. These policies contained an exclusion from coverage for any claim alleging "an exposure to or the contracting of asbestosis" ("the Asbestosis Exclusion Clause"). Both Columbia and American had denied coverage under this exclusion for all asbestos-related bodily injury claims. Asten sought a declaratory judgment that its coverage under these policies included all claims related to asbestos exposure other than those involving the fibrotic lung disease, asbestosis. After a three-week bench trial, the District Court denied Asten the declaratory relief sought. The primary issues before the Appeals Court were whether Asten was entitled to a jury trial under the Seventh Amendment, and whether the District Court's resolution of the coverage issue should stand. The Appeals Court affirmed the judgment of the District Court insofar as it declared the obligations of American with respect to the duty to defend or pay defense costs under the 1982 American Excess Policy. Asten was entitled to a jury trial on its other declaratory judgment claims, however, and in all other respects the judgment of the District Court were reversed, and the case was remanded for further proceedings. Robert C. Heim, Esq., Nory Miller, Esq., John S. Ghose, Esq., of Dechert, John N. Ellison, Esq., Reed Smith, Esq., and Michael Conley, Esq., of Anderson, Kill & Olick in Philadelphia, represented AstenJohnson, Inc. Ronald P. Schiller, Esq., Jay I. Morstein, Esq., Nicole J. Rosenblum, Esq., of DLA Piper in Philadelphia, represented Columbia Casualty Company. Steven A. Cozen, Esq., Jacob C. Cohn, Esq., of Cozen & O'Connor in Philadelphia, represented American Insurance Company. ASBESTOS LITIGATION: Court OKs Partial Dismissal in Watts Action ---------------------------------------------------------------- The Superior Court of Massachusetts, Suffolk County, allowed defendants' Motion to Dismiss Count IV of Plaintiffs' Amended Complaint, in the case styled Watts Water Technologies, Inc. & Watts Regulator Company v. Fireman's Fund Insurance Company & others (Travelers Indemnity Company, Continental Casualty Company, Hartford Fire Insurance Company, and Zurich Insurance Company) Justice Margaret R. Hinkle entered judgment in Case No. SUCV2005-02604-BLS on March 25, 2009. Watts Regulator Company and its parent company, Watts Water Technologies, Inc., filed this action against several insurance companies ("the Insurers") seeking a declaratory judgment that the Insurers had a duty to defend them in about 300 lawsuits brought in a dozen states alleging bodily injury as result of exposure to asbestos-containing products. Since 1936, Regulator has been a manufacturer of valves which regulate the flow of liquids and gases. In 1985, Water was incorporated as a holding company, and Regulator became a wholly owned subsidiary of Water. Regulator purchased commercial liability policies from the Insurers which covered periods before Water was created. Since 2001, Regulator, Water and other entities affiliated with Water had been sued in about 300 lawsuits in a dozen states alleging injury from asbestos in their products. In some actions, Regulator was directly named as a defendant. In others, Regulator was identified as Watts Water a/k/a or d/b/a Watts Regulator. In other cases, Regulator was not named, but Water was named either individually or as the successor to Museco Inc., Leslie Controls, Inc., Ames Company, Inc., Hoke, Inc., or Powers Process Controls ("the uninsured Watts affiliates"). Each Insurer was defending under a reservation of rights. Water had retained Foley Hoag, Esq., as national counsel and other law firms as local counsel. Regulator had entered into a joint defense with the uninsured Watts affiliates. Water and Regulator filed this breach of contract and declaratory judgment action against the Insurers on June 24, 2005 and were permitted to amend their complaint on Dec. 11, 2008. Count I of the Amended Complaint alleged breach of contract from the Insurers' failure to reimburse Water and Regulator promptly for local and national counsel fees in accordance with the applicable insurance policies and a July 10, 2007 declaratory judgment by this Court. Count II sought a declaratory judgment concerning the Insurers' obligations with respect to defense costs. Count III alleged breach of the implied covenant of good faith and fair dealing under the relevant insurance policies. Count IV alleged a G .L. c. 93A, s 9 claim against the Insurers based on violations of G.L. c. 176D, s 3(9). In allowing the plaintiffs to amend their complaint to add this claim, this Court noted that it was not ruling on the legal issue of whether the plaintiffs, as corporations, would be entitled to relief under s 9 of Chapter 93A. Finally, Count V of the Amended Complaint alleged a G.L. c. 93A, s 11 claim against the Insurers based on unfair claim settlement practices and other unfair and deceptive acts. ASBESTOS LITIGATION: Court Affirms Farrell's Move for New Trial ---------------------------------------------------------------- The U.S. District Court, Northern District of Ohio, Western Division, granted Farrell Lines' Motion for a New Trial in an asbestos case styled Dorothy Ann Jackson, Fiduciary of the Estate of James E. Jackson, Deceased, Plaintiff v. A-C Product Liability Trust, et al., Defendants. U.S. District Judge Jack Zouhary entered judgment in Case No. 1:99 CV 10802 on March 31, 2009. This is a maritime asbestos wrongful death case brought under the Jones Act. Mrs. Jackson alleged that her husband, James Jackson, died at the age of 64 of mesothelioma as a result of occupational exposure to asbestos during his work as a seaman aboard ships and in shipyards. Numerous defendants settled or were dismissed during the course of this case, which eventually went to trial against a lone defendant, Farrell, successor owner of the vessel Executor. After a six-day trial, the jury returned a verdict in favor of Mrs. Jackson in the amount of US$8 million. As part of its verdict, the jury found the Executor was seaworthy but that Farrell was negligent and that its negligence was a cause of Mr. Jackson's mesothelioma. The jury verdict was later reduced to US$7.812 million after agreed-upon set-offs. Farrell filed a Motion for Judgment as a Matter of Law or, in the Alternative, New Trial. Mrs. Jackson opposed and Farrell replied, followed by oral argument. The Court found the verdict was based on inadequate inferences of asbestos exposure; improper expert hypotheticals and testimony; and an excessive verdict which was not within the range of proof and which also shocked the conscience. The verdict was neither reasonable nor supported by the weight of the evidence. Farrell's Motion for Judgment as a Matter of Law was denied; and Farrell's Motion for New Trial was granted. ASBESTOS LITIGATION: Gray's Family Gets $1.2Mil in Compensation ---------------------------------------------------------------- The family of Gerald Gray, a retired U.S. Navy sailor who died of mesothelioma, on June 15, 2009, was awarded US$1.2 million against John Crane, Inc., the Daily Press reports. Mr. Gray, of Suffolk, Va., died on April 16, 2009 at the age of 75. His death came five weeks before the trial was set to begin in Newport News Circuit Court against John Crane, which makes gaskets and other parts used on the ships. The jury's verdict was against five manufacturers for a total of US$4 million. Four of the five defendant companies settled out of court for an undisclosed amount before the case went to trial, absolving them of the jury's decision. John Crane, which fought the case at the trial, was apportioned 30 percent of the blame for the damages, or US$1.2 million. Mr. Gray joined the Navy in 1951. He worked on several ships over the course of a 20-year Navy career, breathing in asbestos fibers by the tens of millions during repair jobs, as parts were changed out. One of those ships was the aircraft carrier USS Enterprise, which came to Newport News Shipbuilding for a maintenance period in the 1960s. After he retired from the Navy in 1971, Mr. Gray settled in Hampton Roads and became a schoolteacher in Chesapeake, Va. In February 2008, about 37 years after he left the Navy, he was diagnosed with mesothelioma. The lawsuit had asserted that negligence on the part of John Crane and the other manufacturers led to Mr. Gray's death. It contended the companies knew about problems with asbestos before the workers were exposed, but took no action. The US$4 million verdict included US$3.83 million in damages and another US$167,000 in interest. The damages included US$2.25 million for Mr. Gray's pain and suffering; US$1.1 million in payments for the family's loss; US$466,434 in medical bills; and US$9,364 in funeral bills. Bobby Hatten, Esq., who represented Mr. Gray's family, said, "He suffered a terrible death and a preventable death." ASBESTOS LITIGATION: Charges v. Favorito Dropped in Grace Action ---------------------------------------------------------------- Charges are being dropped against O. Mario Favorito, a former W. R. Grace & Co. executive, in a Libby, Mont., asbestos trial, Montana's News Station reports. This happened one month after a Montana jury dropped the case against Mr. Favorito's former colleagues. Mr. Favorito was one of seven defendants originally indicted by a federal grand jury five years ago along with Grace, accused of criminal conspiracy in efforts to cover up the asbestos contamination from the Company's asbestos mining operations in Libby. Mr. Favorito's case was severed from the others in July 2006 when the court determined there were possible conflicts that could prevent him from defending himself. In May 2009, a jury returned not guilty verdicts against Grace and the other defendants, effectively undermining the government's case against Mr. Favorito. Mr. Favorito had held a number of positions while working for Grace, including corporate legal counsel and an assistant secretary for Grace and the Company's chief group counsel. ASBESTOS LITIGATION: Derby Machinist's Death Linked to Exposure ---------------------------------------------------------------- A Derby and South Derbyshire inquest heard that the death of 82- year-old wood machinist Maurice Gilbert was linked to exposure to asbestos, the Derby Telegraph reports. The inquest heard Mr. Gilbert had written a statement a week before he died to say he believed his asbestos-related illness was due to his 25 years working at a former Derby, England, construction firm, Gee Walker and Slater. Derby and South Derbyshire deputy coroner Louise Pinder read out Mr. Gilbert's statement. It said, "Right up until 1969 when the Company stopped using asbestos sheeting, I was involved with handling asbestos." Ms. Pinder said that Mr. Gilbert, of Poyser Avenue, Chaddesden, talked about, "clouds of asbestos dust emanating from asbestos cutting machines," which settled on the floor before being swept up. The inquest heard how Mr. Gilbert was diagnosed with asbestos- related lung disease in September 2008 after visiting his GP because he was very breathless. He was admitted to hospital after he collapsed and was unwell the day before he died, on Jan. 28, 2009. Mr. Gilbert worked at the firm from 1941 to 1969. In 1969, he went to work for Rolls-Royce until he retired in 1986. Recording a verdict of death from industrial disease, Miss Pinder said, "He was exposed to asbestos between 1941 and 1969, save for a short time in the Royal Signals, pretty much on a daily basis. "My understanding is that there is a time-lag between when someone is exposed to asbestos and development of the disease. In fact, the time seems to fit entirely." ASBESTOS LITIGATION: Lancashire Teachers Seek Cleanup in Schools ---------------------------------------------------------------- Teachers have called for the abatement of asbestos from schools in East Lancashire, England, after it was found that asbestos is contained in council-owned buildings, the Lancashire Telegraph reports. More than 250 schools, town halls, community centers, public toilets, and leisure facilities have been noted as having some form of asbestos. Revealed under a Freedom of Information investigation, the list of buildings shows that 55 out of 73 schools in Blackburn and Darwen contain asbestos. In Burnley, Pendle, Rossendale, Hyndburn and the Ribble Valley, 213 schools contain asbestos. Union bosses are urging the United Kingdom Government to remove the asbestos, saying it should not "take chances with people's lives." National Union of Teachers national executive member Simon Jones, who represents East Lancashire, said, "The only safe policy is complete removal. "You can't take chances with people's lives, so whatever the cost, it has to be met. The Government has now conceded and accepted that." About 13,000 of the country's 25,000 schools were built between 1945 and 1974 when asbestos use was at a peak. Many were refurbished using asbestos in ceilings, wall linings and lagging pipes. Some are now being transformed as part of the Building Schools for the Future program. ASBESTOS LITIGATION: Hazard Dumped at Nanty Glo Recreation Spot ---------------------------------------------------------------- Tom Kasecky, a Nanty Glo, Pa., local, has blown the whistle on truckloads of asbestos he alleges were dumped at the town's recreation spot, Mesothelioma reports. Nanty Glo has a population of over 3,000. Nanty Glo's park, with an area of 109 acres, has adult and children's pools, a water slide, sprinkler and diving board, a bathhouse, pavilions, and various picnic areas. Beyond this common pool area are campgrounds, walking trails, children's playground equipment and restrooms, as well as horseshoe pits, a volleyball court, and venues for fishing and hunting. Mr. Kasecky, who worked for the Nanty Glo Sewer Authority for years, says that the borough started dumping old, broken asbestos pipes beside the park and pool in the 1970s. By the 1980s, health professionals and others had become aware of the health effects of asbestos exposure. Even so, Mr. Kasecky says, the dumping continued, with crushed asbestos hidden just beneath the surface of the park, some of it dumped by borough contractors in just the past few years. Aside from the various pools and recreation areas, there is also a stream nearby that flows into Davis Run, a popular fishing spot. Seeping into this watershed, Mr. Kasecky notes, is runoff contaminated with asbestos fibers and sludge. This all came out at a recent public meeting, and some residents were shocked. Others who knew about the dumping practice said they had been asking the Pennsylvania Department of Environmental Protection for a cleanup for years, with no success. Mr. Kasecky says that some landowners also have contaminated fill on their properties, whether by consent or by accident Mr. Kasecky did not say, though he did note that landowners "didn't know what they were getting." ASBESTOS LITIGATION: Court Issues Ruling in Eickleberry Lawsuit ---------------------------------------------------------------- The U.S. District Court, District of New Jersey, ruled against plaintiffs, in a case involving asbestos filed by Charles Eickleberry and other parties, finding that joinder of Plaintiffs' claims under Rule 20 was not suitable. The case is styled Charles Eickleberry, et al., Plaintiffs v. H. Lappin, et al., Defendants. District Judge Noel L. Hillman entered judgment in Civil Action No. 09-1556 (NLH) on April 8, 2009. Mr. Eickleberry, Timothy Junkert, Scott Burhyte, and Michael Jackson, inmates confined at the Federal Correctional Institution at Fort Dix, N.J., filed this Complaint and had asked the Court to allow them to proceed in forma pauperis. An application to proceed in forma pauperis was submitted only by Mr. Eickleberry. Plaintiffs alleged that the conditions at the Federal Correctional Institution at Fort Dix violated their Eighth Amendment right to be free from cruel and unusual punishment. They alleged deficiencies with respect to cleanliness, toxins (asbestos exposure), ventilation, lighting, overcrowding, plumbing, insect infestations, access to the law library, and recreational facilities. The Complaint was followed by various "affidavits" alleging facts specific to each of the various plaintiffs. In addition to affidavits by the named plaintiffs, there were included affidavits signed by a non-plaintiff Nicholas Simons. Plaintiffs named as defendants officials at FCI Fort Dix as well as the Director of the Bureau of Prisons. Plaintiffs sought injunctive relief and monetary damages. Charles Eickleberry, Timothy Junkert, Scott Burhyte, and Michael Jackson in Fort Dix, N.J., pro se. ASBESTOS LITIGATION: Rulings Issued in Bankston, Brown Lawsuits ---------------------------------------------------------------- The U.S. District Court, Eastern District of Pennsylvania, issued rulings in lawsuits, which are under In re Asbestos Products Liability Litigation (MDL 875), styled Frank Bankston, et al v. ABCO Industries, Inc. and Yvonne Brown v. ABCO Industries, Inc. District Judge Eduardo C. Robreno entered judgment in Civil Action Nos. 01-CV-00162 and 08-CV-71147 on April 6, 2009. A civil action was filed in the U.S. District Court for the Southern District of Mississippi. This civil action had been transferred to this court as part of the federal systemwide asbestos products liability litigation, known commonly as MDL 875. This one civil action has been brought by 2,100 individual plaintiffs. This Court noted that claims of different plaintiffs, which involve common legal issues but totally different alleged facts, may not be grouped into a single action. In the instant matter, while it is true that the claims asserted by each of the plaintiffs against the defendants in this civil action are based upon alleged injuries allegedly incurred as a result of exposure to asbestos products, their individual clams do not arise out of the same transaction, occurrence, or series of transactions or occurrences, and were therefore not related within the meaning of Federal Rule of Civil Procedure 20(a)(1). The Court ruled: -- Within 60 days, each individual plaintiff shall file one "Severed and Amended Complaint" in this court. -- Each Severed and Amended Complaint shall contain the specific claims asserted by that individual plaintiff against any defendant named in the Severed and Amended Complaint. -- Except for Frank Bankston (the lead plaintiff in the aforesaid matter originally filed in the U.S. District Court for the Southern District of Mississippi), each plaintiff who filed a Severed and Amended Complaint shall remit to the Clerk of Court a filing fee in the amount of US$350.00. -- Each Severed and Amended Complaint must be served by the concerned plaintiff as required. -- Failure to comply herewith may result in dismissal of Plaintiff's case. ASBESTOS LITIGATION: Court Issues Split Ruling in Howard Action ---------------------------------------------------------------- The U.S. District Court, Western District of Tennessee, Western Division, issued split rulings in the case styled Keith Howard, Plaintiff v. Cargill, Inc., Defendant. District Judge S. Thomas Anderson entered judgment in Case No. 08-2057-STA-dkv on April 9, 2009. On Jan. 14, 2008, Keith Howard and eight other individuals filed a joint pro se complaint. District Judge J. Daniel Breen issued an order on Jan. 29, 2008 that severed the actions and directed the Clerk to open a new civil action for each plaintiff. On March 20, 2008, Judge Breen directed Mr. Howard to amend his complaint. On April 8, 2008, Mr. Howard filed an amended complaint and attached a charge of discrimination and notice of right to sue for a claim of race discrimination. On April 21, 2008, the Court entered an order dismissing Defendants Martin Crowder, Tim Campbell, Joe Sparks, and Amanda Jordan and to issue process for Cargill on Plaintiff's Title VII claims. On May 21, 2008, the case was reassigned to Judge Anderson. On May 27, 2008, Cargill filed a motion to dismiss. On May 29, 2008, Cargill again filed its motion to dismiss. On July 15, 2008, Mr. Howard responded to the motion to dismiss. Cargill asserted that Mr. Howard's claim of race discrimination should be dismissed. Particularly, Cargill contended that Mr. Howard had not alleged an adverse employment action because he had not alleged a change in the terms and conditions of his employment. Mr. Howard attached and incorporated his Equal Employment Opportunity Commission ("EEOC") charge alleging race discrimination against Cargill to his amended complaint. Mr. Howard, in his complaint, asserted that, in September 2006, an inspection was conducted. During the inspection asbestos was discovered throughout the common work areas. The Blacks and other minority employees were unaware of the presence of asbestos as they were routinely assigned to the contaminated areas. Management never informed the employees assigned to the contaminated work areas of the presence of asbestos. Mr. Howard further stated that, Cargill and its Board members knowingly and willfully placed their employees in a hazardous work environment filled with asbestos. The Company knowingly and willfully hires Blacks to work locations and perform work duties in the asbestos filled areas. No White workers had been placed in the hazardous areas where the asbestos has been disturbed. This is one of the largest companies in the United States of its kind. For the foregoing reasons, Cargill's motion to dismiss was granted in part and denied in part. Cargill's motion was granted to the extent that it sought dismissal of Mr. Howard's claim for retaliation. Cargill's motion was denied to the extent that it sought dismissal of Mr. Howard's claim for race discrimination. Keith Howard, Memphis, Tenn., pro se. Michael R. Phillips, Esq., Joel H. Spitz, Esq., and John C. Gardner, Esq., of McGuirewoods LLP in Chicago, Paul E. Prather, Esq., of Kiesewetter Wise Kaplan & Prather, PLC in Memphis, Tenn., represented Cargill, Inc. ASBESTOS LITIGATION: Court Issues Split Ruling in Silvestro Suit ---------------------------------------------------------------- The Court of Appeal, Second District, Division 8, issued split rulings in the asbestos case styled Doris Silvestro et al., Plaintiffs and Respondents v. Kaiser Gypsum Company, Inc., Defendant and Appellant. Judges Patricia A. Bigelow, Madeleine Flier, and O'Neill entered judgment in Case No. B196906 on April 13, 2009. This was an appeal from a judgment of the Superior Court of Los Angeles County. This is a wrongful death case in which a jury found that Kaiser Gypsum Company, Inc., and Kelly-Moore Paint Company failed to give adequate warning that their products had potential risks due to the asbestos contained in those products, and that the lack of an adequate warning was a substantial factor in causing Salvatore Silvestro's death. The jury further found that plaintiffs' economic damages were US$250,000, and that their noneconomic damages were US$15 million, and allocated fault in the following measures: 30 percent to Kaiser Gypsum, 30 percent to Kelly-Moore, and the remaining 40 percent divided among 10 others. After offsetting settlements, the trial court entered a judgment providing that plaintiffs take US$4.6 million from Kelly-Moore and US$4.6 million from Kaiser Gypsum. Kelly-Moore thereafter settled with plaintiffs. Kaiser Gypsum filed this appeal on Feb. 16, 2007. The Appeals Court affirmed the jury's finding that Kaiser Gypsum substantially contributed to causing Mr. Silvestro's death, but reversed its finding that Kaiser Gypsum's measure of fault for causing his death amounted to 30 percent. Horvitz & Levy (Lisa Perrochet, Esq., and Wendy S. Albers, Esq.) and Jackson & Wallace (Mark D. Sayre, Esq., and Jessica A. Stepp, Esq.) represented Kaiser Gypsum. Waters & Kraus (Gary M. Paul, Esq., Paul C. Cook, Esq., and Michael B. Gurien, Esq.) represented Doris Silvestro. ASBESTOS LITIGATION: Appeal Court OKs Ruling in Nicholas Lawsuit ---------------------------------------------------------------- The U.S. Court of Appeals, Fifth District, affirmed the ruling of the U.S. District Court for the Southern District of Texas, which denied Geraldine Nicholas' motion to compel arbitration, in a case involving asbestos filed on behalf of her late husband, James Nicholas. The case is styled Geraldine Nicholas, Individually and as Administratrix of the Estate of James Nicholas Plaintiff- Appellant v. KBR Inc., M W Kellogg Co.; Kellogg Brown & Root; Halliburton Co., Defendants-Appellees. Judges Patrick Higginbotham, Jennifer Elrod, and Catharina Haynes entered judgment in Case No. 08-20140 on April 15, 2009. Mrs. Nicholas appealed the denial of her motion to compel arbitration of her contract dispute with KBR, Inc., the successor corporation of her deceased husband's (James Nicholas) former employer, M.W. Kellogg Co. Mrs. Nicholas contended that the district court improperly ruled that she waived her right to arbitrate her dispute with KBR. The Appeal Court concluded that the District Court did not err when it found that Mrs. Nicholas substantially invoked the judicial process to the prejudice of KBR. The Appeal Court affirmed the District Court's judgment. The matter was remanded for further proceedings. ASBESTOS LITIGATION: PDG Notes $4M Reduction in Cleanup Revenues ---------------------------------------------------------------- PDG Environmental, Inc., during the three months ended April 30, 2009, had a reduction of about US$4 million for asbestos abatement projects, according to the Company's quarterly report filed with the Securities and Exchange Commission on June 15, 2009. The Company's contract revenues decreased by 28.7 percent to US$12.6 million during the three months ended April 20, 2009, compared with US$17.7 million in the three months ended April 30, 2008. Specifically, the Company had a reduction of about US$1.1 million in revenues generated from non-asbestos projects. Pittsburgh-based PDG Environmental, Inc. provides environmental and specialty contracting services including asbestos and lead abatement, microbial remediation, emergency response, loss mitigation and reconstruction, demolition and related services throughout the United States. ASBESTOS LITIGATION: Inquest Rules on Cotswold Resident's Death ---------------------------------------------------------------- A coroner's inquest heard that the death of 62-year-old Brian Ratcliff, of Cotswold, England, was linked to exposure to asbestos, Mesothelioma & Asbestos Awareness Center reports. Mr. Ratcliff worked during the 1960s and 1970s as a fitter of TV antennas. His career brought him into contact with asbestos, as he often had to drill into loft spaces or roofs in order to install the antennas. After having initial symptoms around Easter of 2008, Mr. Ratcliff was diagnosed with mesothelioma in May 2008. He died on June 13, 2008. The coroner's postmortem report indicated that Mr. Ratcliff's cause of death was bronchopneumonia due to malignant mesothelioma. The county coroner then officially recorded Mr. Ratcliff's cause of death as industrial disease. ASBESTOS LITIGATION: NERA Bares Filing, Settlement Trends Report ---------------------------------------------------------------- NERA Economic Consulting, on June 16, 2009, released Snapshot of Recent Trends in Asbestos Litigation, a report analyzing trends in asbestos filings and settlements, in light of legislative and judicial tort reform over the past several years, according to a NERA press release dated June 16, 2009. The report, co-authored by NERA Senior Vice President and Mass Torts and Product Liability Practice Chair Lucy P. Allen, and Vice President Mary Elizabeth C. Stern, reviews asbestos-related claims over the period of 2001 to 2008 for 150 solvent defendants who report claims in their public filings. Snapshot of Recent Trends in Asbestos Litigation found that aggregate trends are generally favorable to asbestos defendants. In particular the authors found that: -- Asbestos claim filings are down�average claim filings peaked in 2003 and have since fallen 84 percent through 2008. This drop in filings corresponds to the enactment of legislative and judicial tort reforms in multiple jurisdictions. -- Dismissal rates are up�dismissal rates of asbestos cases have steadily increased since 2001 and were three times higher in 2008 than in 2001. -- Total indemnity payments are down�the total indemnity payments, the aggregated amount a company pays to resolve claims each year, increased about 33 percent each year from 2001 through 2004. In 2005, indemnity payments began to decline, on average, and have now dropped back to 2002 levels. Snapshot of Recent Trends in Asbestos Litigation may be viewed on the NERA website: http://www.nera.com/publication.asp? p_ID=3845 White Plains, N.Y.-based NERA Economic Consulting is a firm dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. ASBESTOS LITIGATION: Granger Suit v. Chevron Filed in Jefferson ---------------------------------------------------------------- Maudry Granger and Raymond Granger, on June 12, 2009, filed an asbestos lawsuit against Chevron Corporation in Jefferson County District Court, Tex., The Southeast Texas Record reports. The suit was filed on behalf of Rufus Granger. According to the complaint, Rufus Granger developed lung cancer and pulmonary asbestosis after his work at Gulf Oil (n/k/a Chevron) in Port Arthur, Tex. During his work, he was exposed to asbestos fibers and dust, which caused his diseases. He died on Jan. 18, 2009. The suit further asserts that, although Chevron knew about the harms of asbestos for decades, it failed to warn Rufus Granger of the product's danger and failed to ensure that its employees were not exposed to asbestos carcinogen. The Grangers seek punitive and exemplary damages, plus interest at the legal rate, costs and other relief to which they may be entitled. J. Keith Hyde, Esq., and D'Juana Parks, Esq., of Provost and Umphrey Law Firm in Beaumont, Tex., will be representing the Grangers. Case No. E184-286 has been assigned to Judge Donald Floyd, 172nd District Court. ASBESTOS LITIGATION: Reynolds Gets $8.4MM Award in Hamilton Case ---------------------------------------------------------------- A San Francisco jury, on June 15, 2009, ruled in favor of former drywaller Jack Reynolds in his asbestos-related products liability trial against Hamilton Materials, Inc. After determining that Hamilton was liable, the jury assessed US$468,759 in economic damages, and US$8 million in non-economic damages, due to Hamilton's contribution in causing Mr. Reynolds' mesothelioma. MR. Reynolds served in the U.S. Navy from 1954 to 1964 primarily aboard two naval vessels: USS MASON, a naval destroyer and USS RANGER, an aircraft carrier. Aboard these ships, he worked primarily as a painter and in the laundry service department. After an honorable discharge, Mr. Reynolds went to work for a fellow navy serviceman's business installing and finishing drywall in primarily residential construction. He did this until 1973, where his employment changed from construction to the travel industry. His last occupational exposure to asbestos occurred in 1973. He retired in 1999. In 2008, Mr. Reynolds was diagnosed with left-sided malignant mesothelioma. He has received chemotherapy, multiple drainings of pleural effusions as well as talc pleurodesis designed to help prevent further chest fluid accumulation. He resides in Rio Vista, Calif. Orange, Calif.-based Hamilton was a manufacturer and supplier of "Red Dot" brand asbestos-containing joint compound from 1963 to 1977, a product used to fill joints between sheets of drywall which is sanded after application emitting large amounts of dust. At trial, plaintiffs presented evidence showing that when used as intended, Hamilton's asbestos-containing joint compound products had to be applied, sanded, disturbed, and cleaned up, all of which released hazardous respirable asbestos dust. The jury assigned 20 percent of the liability to Hamilton. "We are very happy for Mr. Reynolds and his family as they are deserving, good people." said Gil Purcell, Esq., counsel for Jack Reynolds. Gil Purcell, Esq., Andrew Chew, Esq., and Hallie Albert, Esq., of Brayton Purcell LLP, represented Mr. Reynolds at trial. The trial, which began May 20, 2009, was presided over by the Honorable Mary E. Wiss who sits in Department 504 of the San Francisco Superior Court. Hamilton Materials, Inc. was represented at trial by Thomas J. Tarkoff, Esq., and Kurt Putnam, Esq., of Walsworth, Franklin, Bevins and McCall, LLP in San Francisco. Other defendants resolved at or during trial. The case was styled Jack Reynolds v. Hamilton Materials, et al. Case No. 274747, San Francisco Superior Court. ASBESTOS LITIGATION: AG Files Contamination Lawsuit v. Decoulos ---------------------------------------------------------------- Massachusetts Attorney General Martha Coakley's Office, on June 11, 2009, filed a complaint in Suffolk Superior Court against the owner of a contaminated site in Danvers, according to a Massachusetts AG press release dated June 12, 2009. The complaint alleges that Nicholas J. Decoulos violated state hazardous waste law by refusing to clean up the soils and sediments at the site, which contain high levels of arsenic and dioxin. The complaint further alleges that Decoulos has violated the law by failing to secure the most dangerous sections of the site and by failing to post signs warning about the hazards at the property. AG Coakley said, "The uncontrolled hazardous waste releases at Mr. Decoulos' property not only present a danger to the environment, but also pose a significant risk to public health. It is the responsibility of any property owner to take the steps necessary to protect the public and to clean up hazardous waste on their property." Laurie Burt, Commissioner of the Massachusetts Department of Environmental Protection (MassDEP), said, "The failure of Mr. Decoulos to take appropriate steps to clean up this contaminated site is irresponsible and his failure to secure his property creates an unacceptable risk to nearby residents and the public." The property was formerly the site of the Creese and Cook Tannery and is located along the Crane River in Danvers. According to the complaint, current conditions pose an imminent hazard due to the presence of contaminated surface soils in the former landfills, and in a former lagoon and upland fill pile along with contaminated sediment in the Crane River located directly adjacent to the site. The imminent hazard areas were identified by contractors hired by the site's owner. Despite reports of individuals accessing this site for recreational and other purposes, the complaint alleges Mr. Decoulos has refused to repair fencing and post warning signs around the imminent hazard areas to prevent human exposure to the contamination. He has also refused to enter into an access agreement with MassDEP to allow its contractors to complete this work, according to an affidavit also filed on June 12, 2009. In 2004, Mr. Decoulos directed the demolition of a former tannery building at the property, causing a release of asbestos containing material to the air, in violation of the Massachusetts Clean Air Act, according to the complaint. The asbestos-containing demolition debris from that release remains at the site and has not been remediated, as required by state hazardous waste law. The complaint seeks a preliminary injunction requiring Mr. Decoulos to grant MassDEP access to the site to secure the imminent hazard areas and install the necessary warning signs. It also requests a preliminary injunction requiring Mr. Decoulos to comply with the law going forward by repairing and replacing the fencing and warning signs, as necessary, and monitoring and reporting to MassDEP any further trespasser use of the site. A hearing on the preliminary injunction request has been scheduled for June 22, 2009 at 2 p.m. The complaint also seeks a permanent injunction requiring Mr. Decoulos to comply with state hazardous waste law by remediating the site, as well as civil penalties for violation of the Commonwealth's environmental laws. The Attorney General's Office brought this action on behalf of MassDEP. The complaint seeks to enforce alleged violations under the Massachusetts Oil and Hazardous Material Release Prevention and Response Act and the Massachusetts Clean Air Act. Assistant Attorney General Tracy Triplett from Attorney General Coakley's Environmental Protection Division is handling this case, with assistance from Maureen Vallatini of MassDEP's Office of General Counsel and MassDEP environmental analyst Christopher Pyott. ASBESTOS LITIGATION: Inquest Rules on Addingham Resident's Death ---------------------------------------------------------------- An inquest heard at Bradford Coroner's Court on June 16, 2009 heard that the death of 64-year-old Victoria Powell, of Addingham, England, was linked to secondhand exposure to asbestos, the Telegraph & Argus reports. Mrs. Powell had never worked with asbestos or lived an asbestos factory during her life. The inquest heard that her father, who also died of an asbestos-disease, had been a maintenance worker at a power station when she was a child. Mrs. Powell's husband (John) read a statement to the inquest. He said, "He would bring his clothing home with asbestos on it. Following his death Victoria had kept one of his jackets." Mrs. Powell was diagnosed with asbestos-related malignant mesothelioma in October 2008. She died at home on April 5, 2009. Recording a verdict of death by industrial disease, Coroner Roger Whittaker said, "Without the industrial exposure of her father bringing asbestos home on his clothes, Victoria Powell would not have died of malignant mesothelioma related to asbestos exposure. Although she herself was not exposed in the workplace, this is related to an industrial disease." ASBESTOS LITIGATION: Osborne's Case v. Texaco, Chevron Underway ---------------------------------------------------------------- The family of the late Michael W. Osborne Sr., on June 12, 2009, filed an asbestos lawsuit against Texaco Inc. and Chevron Corporation in Jefferson County District Court, Tex., The Southeast Texas Record reports. The elder Mr. Osborne's family (wife Shirley A. Osborne and children Michael W. Osborne Jr., Dwayne A. Osborne, and Mark D. Osborne) claims that the elder Mr. Osborne's exposure to asbestos in the workplace played a role in his death from mesothelioma. According to the complaint, Michael W. Osborne Sr. developed mesothelioma after his work at Texaco and other facilities in Jefferson County. During his work, he was exposed to asbestos fibers and dust. He died on March 13, 2009. Although Texaco and Chevron knew about the harms of asbestos for decades, they failed to warn Michael W. Osborne of the product's danger and failed to ensure that their employees were not exposed to the carcinogen, the lawsuit states. The Osbornes seek punitive and exemplary damages, plus interest at the legal rate, costs and other relief to which they may be entitled. J. Keith Hyde, Esq., and D'Juana Parks, Esq., of Provost and Umphrey Law Firm in Beaumont, Tex., will be representing the Osbornes. Case No. E184-287 has been assigned to Judge Donald Floyd, 172nd District Court. ASBESTOS LITIGATION: Cleanup Ongoing at Fountaindale, E. Russell ---------------------------------------------------------------- The Washington County School District in Hagerstown, Md., says that asbestos cleanup is ongoing at two schools: Fountaindale Elementary and E. Russell Hicks Middle School, Mesothelioma reports. On June 8, 2009, crews started work at Fountaindale, on Northern Avenue, where remediation precedes the replacement of all the school's windows and doors as part of a maintenance program to increase energy efficiency. Built in 1949, Fountaindale replaced a one-room schoolhouse then on the site, and has since been expanded several times, first in 1954, and later to add a second classroom building, a gymnasium, additional rooms and a connecting hallway. In 1968, a library was also added. The school serves more than 400 students from kindergarten through Grade 5. According to School District Project Manager Michael Whiteley, the school is in need of energy upgrades, and the old windows and doors cannot simply be removed and replaced because the caulking contains small amounts of asbestos. The E. Russell Hicks School, at 1321 S. Potomac St., is another energy-efficiency upgrade, replacing windows doors and heaters in two corridors that connect the two sections of the school. Built in 1967, the school serves 735 children grades 6 through 8. In Hicks, the asbestos is part of fireproofing insulative spray added to the roof deck above the ceiling tiles. In both cases, according to the District's Environmental Safety Specialist Tony Suranno, the asbestos has been present since the schools were built and was in good condition, so it did not present a hazard to students, teachers and school staff. The asbestos removal is anticipated to take about three weeks, and will cost a combined total of more than US$45,000. Precautions included a mandatory notice of asbestos remediation, posted outside E. Russell Hicks on June 4, 2009 and caution tape present at playground equipment at Fountaindale. Posting was not needed at the latter, according to Mr. Whiteley, because the asbestos content is so small and in such good condition. ASBESTOS LITIGATION: SUNY Medical Work Delayed on Asbestos Fears ---------------------------------------------------------------- Officials at State University of New York (SUNY) Medical Upstate University in Syracuse, N.Y., said that they delayed mowing the lawn at the Kennedy Square housing complex due to fears about asbestos, Mesothelioma.com reports. The grass at the housing complex was dotted with shingles from the roof of the building. University officials were concerned that the shingles could contain deadly asbestos fibers. If lawn mowers had trimmed the grass, the blades could have pulverized the shingles and sent debris into the air. If the shingles contained asbestos, the fibers could become airborne and if inhaled the tiny fibers can lodge permanently in the lungs of anyone who inhales them. The test results came back, and the shingles contain no asbestos material. The University has now hired a contractor who will trim the grass and remove the debris. SUNY Upstate plans to transform the housing complex into a US$35 million biotechnology research center. The site is overgrown with very tall grasses and weeds, and in addition to shingles, the debris at the site includes old rugs, old couches and car seats. ASBESTOS LITIGATION: Lawyer Cites World Bank Report's Importance ---------------------------------------------------------------- New York personal injury lawyer Joseph W. Belluck, Esq., says the World Bank's new construction guidelines raise awareness of the health risks associated with asbestos and call attention to the danger of workplace exposure to this once-common building material, according to a Belluck & Fox, LLP press release dated June 11, 2009. Mr. Belluck, a partner at the New York law firm of Belluck & Fox, LLP, said, "The World Bank's new guidelines remind us that asbestos is still present in some construction materials. And once again we're reminded of the importance of limiting hazardous exposure to asbestos." The World Bank, which provides financial aid and technical assistance in more than 100 countries, in May 2009, finalized construction guidelines to discourage the use of asbestos in new construction projects. ASBESTOS LITIGATION: CAG Seeks More Info on BoRit Asbestos Site ---------------------------------------------------------------- The Citizens Advisory Group seeks more communication with the Environmental Protection Agency, as assessment of the BoRit asbestos area in Ambler, Upper Dublin and Whitpain moves forward, according to The Reporter. The BoRit site, which was used to dispose of asbestos-containing material until the 1980s, was placed on the EPA's Superfund National Priorities List in April 2009, which allowed the EPA to begin investigating long-term solutions. Francisco Cruz, the EPA community involvement coordinator for the site, said the operations and maintenance of Phase one of the removal process, which involves the area around the Wissahickon Creek, are ongoing. He also reported Phase two, which involves Rose Valley, is still in the planning stages. Mr. Cruz addressed the remedial stage of the EPA's process, noting the organization is still working on plans for the Remedial Investigation/Feasibility Study (RIFS), which will collect data to determine site conditions and the nature of the waste, assess risks and evaluate potential remedial actions. After RIFS is completed, the EPA will prepare a plan for the remedial stage, which will then be made available to the public for comment for 30 days, Mr. Cruz said. Discussion of the RIFS prompted several members of the citizens group to express their frustrations that the group is not being kept up to date with the progress of the remedial process. Members noted similar frustrations arose when the EPA took some actions during the removal phase without first informing the group. CAG member Sharon McCormick said, "If we can just, even verbally, get information about what's going to happen in the next month or six weeks, that would prevent a lot of this (frustration)." Mr. Cruz said the EPA would take efforts to ensure CAG was informed before any remedial action is taken and also suggested a presentation that would give members an in-depth understanding of the RIFS process. CAG Co-Chairman Fred Conner suggested the group reinstitute weekly or biweekly conference calls between members and the project manager so the group can remain updated on any progress. CAG members reported they are in the final stages of going to local primary care physicians to present information about the health risks associated with asbestos. They reported several physicians have agreed to hang up the poster the group designed. CAG member Sal Boccuti presented two recommendations from the future plans workgroup. First, the group suggested forming a panel discussion in which an EPA lawyer would discuss the legal issues involved to new owners of property near the site. Second, the group recommended the CAG encourage the municipalities to meet and discuss progress with the site. Mr. Boccuti said the work group thought Whitemarsh and Lower Gwynedd, in addition to Ambler, Upper Dublin and Whitpain, should be included due to their proximity to the site. ASBESTOS LITIGATION: Pa. Court Vacates Ruling in Daley's Lawsuit ---------------------------------------------------------------- The Superior Court of Pennsylvania vacated a ruling of the Court of Common Pleas of Philadelphia County Civil, which granted summary judgment in favor of A.W. Chesterton Inc., U.S. Supply Company, and Duro-Dyne Corporation, and dismissed Herbert L. Daley and Evelyn Daley's asbestos complaint with prejudice. The case was remanded to the trial court for further proceedings. The case is styled Herbert L. Daley and Evelyn Daley, h/w, Appellants v. A.W. Chesterton, Inc. and U.S. Supply Company and Duro-Dyne Corporation, Appellees. Judges John L. Musmanno, Susan P. Gantman, and Jack A. Panella entered judgment in Case No. 2763 EDA 2006 on April 15, 2009. In October 1990, Mr. Daley filed an asbestos action in the Delaware County Court of Common Pleas seeking compensatory damages for pulmonary asbestosis and lung cancer. Said action resulted in an out of court settlement between the parties in 1994. Chesterton, Supply, and Duro-Dyne (Appellees) were not named in that action. Thereafter, on Oct. 24, 2005, Mr. Daley commenced an asbestos mass tort action against numerous defendants alleging that in August 2005, Mr. Daley contracted malignant mesothelioma as a result of his occupational exposure to asbestos products, including products distributed by Appellees. On July 19, 2006, Appellees moved for summary judgment, asserting that Mr. Daley's statute of limitations began to run at the time he was first diagnosed with lung cancer. On Sept. 11, 2006, after consideration of Appellees' motion and Mr. Daley's response thereto, the court granted summary judgment in Appellees' favor and dismissed with prejudice all claims against Appellees. On Oct. 2, 2006, the Haleys timely filed this appeal. On Oct. 31, 2006, the Haleys filed their Concise Statement of Matters Complained of on Appeal. ASBESTOS LITIGATION: New Trial Ordered in Nolan v. Weil-McLain ---------------------------------------------------------------- The Supreme Court of Illinois reversed the judgments of appellate and circuit courts and remanded the matter to the circuit court for a new trial in the asbestos case styled Sally Nolan, as Executrix of the Estate of Clarence Nolan, Appellee v. Weil-McLain, Appellant. Judges Charles E. Freeman, Thomas R. Fitzgerald, Rita B. Garman, Lloyd A. Karmeier, Anne M. Burke, and Thomas L. Kilbride entered judgment in Case No. 103137 on April 16, 2009. Judge Kilbride filed a dissenting opinion and Judge Thomas took no part in the decision. Sally Nolan, as executrix of the estate of her late husband, Clarence Nolan, sought recovery in the Circuit Court of Vermilion County against defendant, Weil-McLain, for the wrongful death of her husband. The jury returned a verdict for Mrs. Nolan, and a majority of the appellate court affirmed. In 2001, the Nolans sued 12 corporations, including Weil-McLain, alleging that Mr. Nolan developed mesothelioma after exposure to the defendants' asbestos-containing products. Specifically, as to Weil-McLain, it was alleged that Mr. Nolan was exposed to asbestos when he installed, repaired or removed boilers manufactured by the company. The 11 other defendants either settled or were dismissed prior to trial, leaving Weil-McLain as the lone defendant in Mr. Nolan's suit. In January 2004, Mrs. Nolan's case proceeded to trial against Weil-McLain. There was no factual dispute that the cause of Mr. Nolan's death was mesothelioma or that for a period of time prior to 1974 various asbestos-containing components were supplied with Weil-McLain's boilers, including cement and rope manufactured by other entities. The jury rendered a verdict in favor of Mrs. Nolan, awarding US$2,368,000 in damages. This award was reduced by a US$1,222,500 setoff for the amounts received from the defendants who had settled and been dismissed from the case. Weil-McLain filed a timely post-trial motion. A majority of the appellate court affirmed the circuit court's decision. ASBESTOS LITIGATION: Appeal Court Upholds Ruling in Ledaura Case ---------------------------------------------------------------- The Court of Appeals of Washington, Division 2, upheld the Pierce County Superior Court's ruling, which favored landlord Ledaura, LLC, in a detainer action involving asbestos cleanup filed by tenants Bret Drager, Randy Gould, Greg Johnson, and Drager Gould Architects, Inc. The case is styled Ledaura LLC, a Washington limited liability company, Respondent v. Randy Gould and "Jane Doe" Gould, husband and wife; Bret Drager and "Jane Doe" Drager, husband and wife; and Greg Johnson and "Jane Doe" Johnson, husband and wife; and Drager Gould Architects, Inc., Appellants. Judges Elaine Houghton, Christine Quinn-Brintnall, and Joel Penoyar entered judgment in Case No. 37379-3-II on April 14, 2009. On Jan. 24, 2006, Leah Caruthers, in her capacity as co-trustee of the revocable living trust of David W. Smith (trust), entered into a commercial lease agreement with the tenants. The tenants agreed to pay the first and last months' rent, followed by rent of US$4,500 per month, beginning 12 months after the commencement date. After the tenants entered into the lease with the trust, they told Ms. Caruthers that they and their corporate entity, DGA, would like to occupy a portion of the property formerly used as an apartment while they renovated the remainder of the property. Ms. Caruthers agreed. Soon after the tenants signed the lease, they began remodeling a 760 square foot portion of the property for use as their office. The tenants moved into the office in April 2006, after three months of remodeling. On Feb. 16, 2006, the trust transferred its interest in the property to the newly formed Ledaura LLC. The entire property, including the ground floor, comprises about 20,000 square feet. In March 2006, Ms. Caruthers hired Robert Munroe to clear debris out of the property. During his employment with Ms. Caruthers, the tenants hired Mr. Munroe to perform demolition work on the same space. Instead of finishing the debris clearing, Mr. Munroe began demolishing the property and, in the process, removed asbestos. When the tenants learned of this and other problems, they terminated him. Mr. Munroe later vandalized the property by damaging electrical systems and moving debris around the building. After the vandalism, the parties attempted to clear the debris out of the property and draft a new lease addendum, but they ultimately they did not reach an agreement. On July 30, 2007, Ledaura served Mr. Gould a copy of the notice to pay rent or vacate. Ledaura addressed the notice to Mr. Gould, Mr. Drager, and Mr. Johnson. On Aug. 10, 2007, Ledaura filed a complaint for an unlawful detainer action against the tenants, alleging failure to pay rent. The tenants included a counterclaim in their answer, and the trial court dismissed it without prejudice. The trial court ordered a forfeiture of the lease and the return of the property to Ledaura within 20 days. The trial court ruled that with the exception of DGA, the tenants were jointly and severally liable on all the judgments. The tenants appealed. Douglas N. Kiger, Esq., of Blado Kiger PS in Tacoma, Wash., represented Respondent. Mark Ronald Roberts, Esq., of Davis Roberts & Johns PLLC in Gig Harbor, Wash., represented Appellants. ASBESTOS LITIGATION: Casella Site to Accept Waste Until Dec. 31 ---------------------------------------------------------------- Casella Waste Systems, Inc.'s Pine Tree landfill in Hampden, Maine, will accept waste (including non-friable asbestos) until Dec. 31, 2009. Pine Tree is a secure, special waste landfill, permitted to accept construction and demolition debris, ash from municipal solid waste incinerators and fossil fuel boilers, sandblast grits, oily waste and oil spill debris, non-friable asbestos, and other approved special wastes. In November 2006, a phased closure of the landfill was approved by the Town of Hampden and the Maine Department of Environmental Protection, which will require cessation of waste acceptance by Dec. 31, 2009. Rutland, Vt.-based Casella Waste Systems, Inc. provides resource management expertise and services to residential, commercial, municipal, and industrial customers, primarily in the areas of solid waste collection, transfer, disposal and recycling services. ASBESTOS LITIGATION: EPA Health Emergency Declared in Mont. Site ---------------------------------------------------------------- U.S. Environmental Protection Agency Administrator Lisa P. Jackson, on June 17, 2009, announced the EPA has determined that a public health emergency exists at the Libby asbestos site in northwest Montana, according to an EPA press release dated June 17, 2009. Over the past years, hundreds of asbestos-related disease cases have been documented in this small community, which covers the towns of Libby and Troy. The announcement was made at a joint press conference with Department of Health and Human Services Secretary Kathleen Sebelius and U.S. Senators Max Baucus and Jon Tester. This is the first time EPA has made a determination under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that conditions at a site constitute a public health emergency. This determination recognizes the serious impact to the public health from the contamination at Libby and underscores the need for further action and health care for area residents who have been or may be exposed to asbestos. Investigations performed by the Agency for Toxic Substance and Disease Registry have found the incidence of occurrence of asbestosis in the Libby area staggeringly higher than the national average for the period from 1979 to 1998. EPA is working with the Department of Health and Human Services, which is making available a short-term grant to provide needed asbestos-related medical care to Libby and Troy residents. During her Senate confirmation hearing, Administrator Jackson committed to review the situation at the Libby asbestos site based on current site information, sound science and EPA's legal authorities. As a result of her review, the Administrator has decided that conditions at the site present a significant threat to public health and that making a public health emergency determination is appropriate. Sen. Max Baucus, a long-time advocate on this issue, consistently sought out a determination of a public health emergency in this region. Secretary Sebelius tasked two HHS agencies � the Health Resources and Services Administration and the Centers for Disease Control and Prevention/Agency for Toxic Substances and Disease Registry � to help county residents. These two agencies will support a new grant to assist affected residents who need medical care. Local officials are currently putting together a grant proposal that will lay out options for provision of medical care that will work for the residents of Lincoln County. HHS anticipates that this grant can be awarded in August 2009. The Libby asbestos site has been on the EPA's Superfund National Priorities List since 2002, and cleanup has taken place since 2000. EPA has made progress in helping to remove the threat of asbestos in the land and air, and with it, the increased risks of lung cancer, asbestosis, and other respiratory problems. While EPA's cleanup efforts have greatly reduced exposure, actual and potential releases of amphibole asbestos remain a significant threat to public health in that area. The Libby asbestos site includes portions of the towns of Libby and Troy and an inactive vermiculite mine seven miles northeast of the town. Gold miners discovered vermiculite in Libby in 1881. In the 1920s, the Zonolite Company formed and began mining the vermiculite. In 1963, W. R. Grace & Co. bought the Zonolite mining operations. The mine closed in 1990. It is estimated that the Libby mine was the source of over 70 percent of all vermiculite sold in the United States from 1919 to 1990. More information: http://www.epa.gov/libby ASBESTOS LITIGATION: Inquest Rules on Berkeley Scientist's Death ---------------------------------------------------------------- An inquest heard that the death of Berkeley, Gloucestershire, England, scientist Roy Hancock was linked to exposure to asbestos, the Gazette reports. Mr. Hancock, who died of malignant mesothelioma at Gloucestershire Royal Hospital in July 2008, at the age of 64, had also visited several power stations being decommissioned in Russia in the early 1990s and could have come into contact with asbestos there. By Christmas 2007, Mr. Hancock started having pains in his stomach and later in hospital was diagnosed with mesothelioma and only given a short time to live. He died eight weeks after diagnosis, his wife Madeleine Hancock said in a statement. The inquest heard that Mr. Hancock had worked in a building which had asbestos stripped out of it. It also heard how while visiting the boiler rooms at Berkeley, Mr. Hancock may have been exposed to asbestos. Gloucestershire coroner Alan Crickmore said the scientist had also been involved in designing and manufacturing small furnaces for research purposes where he may have been exposed. Recording an industrial disease verdict, Mr. Crickmore said he was satisfied that Mr. Hancock inhaled asbestos over a period of time and there was no evidence to suggest he had done that other than through his employment. ASBESTOS LITIGATION: John Chick Released From Prison Last May 21 ---------------------------------------------------------------- John Chick, on May 21, 2009, who was incarcerated in federal prison for asbestos-related charges, was released due to good behavior, The Post-Standard reports. The 67-year-old Mr. Chick was sentenced to 15 months in federal prison for his role in a Cayuga County, N.Y., asbestos scandal. He was released from prison to a halfway house in Syracuse, N.Y., and is serving the last week of his mandated home confinement. His 15-month sentence, which was reduced by two months for good behavior, is scheduled to end on June 19, 2009. Mr. Chick, a former county employee, was the only person charged with a crime in the scandal. In January 2007, he pleaded guilty to conspiracy to violate the federal Clean Air Act. He admitted in court to supervising the illegal removal of an asbestos-laden boiler in February 2006 from the county Board of Elections building in Auburn, N.Y. Mr. Chick served one year of his sentence at a federal minimum- security camp attached to Canaan Penitentiary, a maximum security prison in Waymart, Pa., about 20 miles east of Scranton. Mr. Chick was also ordered to pay US$108,000 in restitution for the costs the county incurred in cleaning up the asbestos. To date, he has repaid US$450 from his prison earnings, according to county Treasurer James Orman. Mr. Chick said he plans to resume working as a self-employed contractor and spoke about the difficulties of being incarcerated. ASBESTOS LITIGATION: Davison County Accepts $11,340 Cleanup Bid ---------------------------------------------------------------- Commissioners in Davison County, S.D., on June 16, 2009, accepted a US$11,340 bid from Horsley Specialties, Inc. to remove asbestos from the soon-to-be demolished Tower Building, The Daily Republic reports. The asbestos removal is scheduled to be completed by Aug. 10, 2009. The building was part of the Methodist Hospital. Since the county purchased the building for US$425,000 in 1993, it has been a drain on the county's finances. On June 16, 2009, County Maintenance Supervisor Mark Ruml said that one heating bill in December was US$10,000. Commissioner Gerald Weiss said he expected the asbestos-removal bids to be between US$25,000 and US$30,000. Commissioner Jerry Fischer said he expected US$30,000. After awarding the $11,340 bid, the commissioners expressed excitement about inching closer to demolishing the building. Much of the Tower Building is empty, but it does house the offices of the County Health Nurse, the local driver's licensing center and some other state offices. The only entity that the County Commission is obligated to find new office space for is the County Health Nurse, and commissioners spoke briefly about a lease agreement that they are negotiating at a new location. ASBESTOS LITIGATION: LVI Disputes Cambria's $34.1Mil Cleanup Bid ---------------------------------------------------------------- LVI Environmental Services Inc., in a lawsuit filed in New York Supreme Court, asserted that Cambria Contracting Inc.'s US$34.1 asbestos removal bid for the Midtown Plaza in Rochester, N.Y., should be disallowed, the Democrat and Chronicle reports. LVI says that Cambria, of Lockport, N.Y., does not have sufficient experience in such projects. In legal papers, LVI states that Cambria overstated its track record and thus does not meet bidding requirements. The cleanup, which is supposed to begin in June 2009, is the first step in the demolition of the downtown Rochester landmark. Economic development officials for New York State, which is paying to demolish the shopping mall and adjoining buildings, awarded the contract to Cambria in May 2009. The firm was one of six that submitted bids on the project, which LVI describes in legal papers as the largest single asbestos abatement project in upstate New York history. An estimated five million square feet of asbestos-containing materials are to be removed from the complex over a 14-month period. LVI said it believes that it is the next lowest bidder that fully meets bidding requirements. The company, based in New York City with an office in Rochester, bid US$39.9 million for the work. State Supreme Court Justice William Polito has scheduled a June 30, 2009 hearing on LVI's contentions. He declined an LVI request that he issue a temporary order barring the state from moving forward on the abatement and demolition work while the Company's arguments are heard. ASBESTOS LITIGATION: Asbestos at Wallaga Lake Town to be Removed ---------------------------------------------------------------- Asbestos at the Wallaga Lake Koori Village in New South Wales, Australia, is set to be removed despite an assessment finding that there is no health risk to the community, ABC News reports. The Greater Southern Area Health Service says it has given a report to the local Merriman's Aboriginal Lands Council that owns the Wallaga Lake settlement. Greater Southern's Public Health Director Tracey Oakman says while there is no health concerns a Site Management Plan is being developed to manage a clean-up. Ms. Oakman says the report has also found that there is no need for community members to have asbestos health checks. She said, "Certainly the health risk assessment went into that in some detail and suggested that there could be no recommendation for health testing for those people. There's no indication for it based on the level of risk assessment." ASBESTOS LITIGATION: Asbestos, Other Hazards Found at Swannanoa ---------------------------------------------------------------- Asbestos and toxic chemicals were found in a North Carolina State-owned property, which was used by the U.S. Army for a crematorium, in Swannanoa, N.C., the Citizen-Times reports. Environmental officials are investigating soil contamination discovered on the property, which is next to Owen High School. The contaminants were leaking from old transformers found in the property owned by the North Carolina Department of Juvenile Justice. The state Division of Waste Management has ordered the department to fence in the area to keep the public out and hire a consultant for development of plan to clean up the mess. Jaime Kritzer, spokesman for the Department of Environment and Natural Resources, says that it is unknown at this point whether the contamination has spread off the site, whether anyone has been sickened from exposure to the polychlorinated biphenyls found leaking from the transformers or who dumped the waste. According to a cleanup order by the Division of Waste Management on March 18, 2009, open access to the site presents a danger to the public. State officials have known about the contamination since at least May 2008, but Mr. Kritzer said a response was delayed in part because of confusion over who owes the property. It was determined the waste is on a remote portion of a 33-acre tract occupied by the Swannanoa Valley Youth Development Center, said William Lassiter, spokesman for the Department of Juvenile Justice. ASBESTOS LITIGATION: U.K. Locals Protest Waste Plant's Extension ---------------------------------------------------------------- Many residents in Lancashire, England, are protesting a proposal to extend an asbestos-processing waste transfer station, Mesothelioma Cancer News reports. As reported by the Lancashire Telegraph, A1 Skip Hire Ltd, Clayton-le-Moors have put in a bid for the expansion on land that some argue is an area frequented by walkers. As noted in the report, about 600 signatures have been placed on a petition in protest of the site extension. Nick Collingridge, a Lancashire County Council member, is quoted by the Lancashire Telegraph as stating of the matter, "There is a high level of discontent. Residents have highlighted a number of issues and feel their complaints are not being dealt, while the site owners feel they are being harassed in their attempts to run a business." ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent research, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel S. Senorin, Stephanie T. Umacob, Gracele D. Canilao, and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *