/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090710.mbx C L A S S A C T I O N R E P O R T E R Friday, July 10, 2009, Vol. 11, No. 135 Headlines APCC SERVICES: Bronstein Gewirtz Files N.Y Suit Over Overcharges BONITA BAY: Faces TwinEagles Members' Litigation in Florida DES MOINES: Seeks Decertification of Franchise Fees Litigation DITECH NETWORKS: Appeal to Securities Suit Ruling Nixed in April GILDAN ACTIVEWEAR: N.Y. Court Dismisses Securities Fraud Lawsuit ISRAEL ELECTRIC: Gush Etzion Files Suit Over Electricity Outages JABIL CIRCUIT: Defending Appeal to Dismissal of Securities Suit JACKSON HEWITT: Awaits Ruling on Motion to Dismiss "Norris" Suit JACKSON HEWITT: "Gomez" Suit in Maryland Dismissed Last June 18 JACKSON HEWITT: Plaintiff Appeals Ruling in Ohio CSOA Litigation JACKSON HEWITT: Seeks to Dismiss Suit by Missouri RAL Customers JACKSON HEWITT: Settlement of Suit Over RALs Approved in April JACKSON HEWITT: Virginia RAL Customers' Suit in Pretrial Stage JACKSON HEWITT: "Wooley" Suit Over False Deductions in Discovery MASTERCARD INC: To Make Remaining Settlement Prepayment in Sept. MATRIXX INITIATIVES: Faces "Sample" Economic Lawsuit in Calif. MATRIXX INITIATIVES: Faces Suit by Purchasers of Zicam Products MATRIXX INITIATIVES: Faces Suits by Cold Remedy Nasal Gel Buyers META FINANCIAL: Guardian Angel Credit Union's Suit Still Pending NATCO GROUP: Levi & Korsinsky Files Lawsuit Over Proposed Merger RECREATION CENTERS: Homeowners Win in Annual Assessment Lawsuit SEMGROUP ENERGY: Consolidated Amended Securities Lawsuit Pending SPECTRUM GROUP: To Contribute More Shares to Settlement Fund STIEFEL LABORATORIES: Faces Securities Fraud Lawsuit in Florida TEXAS BAY: Judge Denies Injunction Request in for Tenants' Suit New Securities Fraud Cases SYNOVUS FINANCIAL: Kendall Law Group Announces Ga. Suit Filing Asbestos Alerts ASBESTOS LITIGATION: Conn. Supreme Court Rules on Dinern Action ASBESTOS LITIGATION: Bid to Dismiss Appeal in Cross Case Denied ASBESTOS LITIGATION: Mass. Court OKs Remand Bid in Holdren Case ASBESTOS LITIGATION: Ohio District Court Rules on Lamson Action ASBESTOS LITIGATION: Gloucestershire Plumber Exposed to Asbestos ASBESTOS LITIGATION: Abatement at N.J. Newsprint Plant Completed ASBESTOS LITIGATION: EPA Reaches Deal w/ 4 Md. Schools on Safety ASBESTOS LITIGATION: G-I Holdings Reaches Deal on Vermont Sites ASBESTOS LITIGATION: Board OKs Ruling in General Electric Claim ASBESTOS LITIGATION: Cleanup Underway at King Chevrolet Facility ASBESTOS LITIGATION: Sampson Widow to Launch Compensation Claim ASBESTOS LITIGATION: Texas Court Seeks Reasons for DuPont Trial ASBESTOS LITIGATION: Halifax to Check 12 Buildings for Asbestos ASBESTOS LITIGATION: Harlem Valley Site Set for Hazard Abatement ASBESTOS LITIGATION: Gov't. to Pay JPY77Mil for Taima's Exposure ASBESTOS LITIGATION: Inquest Rules on Ex-Celanese Worker's Death ASBESTOS LITIGATION: Arguments in Morin Case Presented in Mass. ASBESTOS LITIGATION: British Safety Council Seeks Asbestos Audit ASBESTOS LITIGATION: Local NSW Council Knew About Koori Hazards ASBESTOS LITIGATION: Hazard Found at Ramsgate High-Rise Building ASBESTOS LITIGATION: Hazard Illegally Disposed at Annagortha Bog ASBESTOS LITIGATION: Court Issues Split Ruling in Powers Lawsuit ASBESTOS LITIGATION: Court Junks Garlock Motions in Moeller Case ASBESTOS LITIGATION: Court Issues Split Ruling in Tatera Lawsuit ASBESTOS LITIGATION: Appeal Court Upholds Ruling in Rando Action ASBESTOS LITIGATION: Appeal Court Flips Ruling in Lennar Lawsuit ASBESTOS LITIGATION: Texas Court Affirms Dismissal of Tipps Case ASBESTOS LITIGATION: Split Ruling Issues in Employers Ins. Case ASBESTOS LITIGATION: Movants' Bid Denied in Burns and Roe Action ASBESTOS LITIGATION: Calif. Apartments Evacuated Due to Hazards ASBESTOS LITIGATION: Hazard Found in Plaza Pub Building in N.M. ASBESTOS LITIGATION: Cleanup Ongoing at Salem Construction Site ASBESTOS LITIGATION: Grupo Mexico to Pay $1.46B Cash for Asarco ASBESTOS LITIGATION: Hazard Found at St. Brigid's School in U.K. ASBESTOS LITIGATION: Bid to Move GM Plea to Higher Court Denied ASBESTOS LITIGATION: U.K. Gov't. to Respond to Report by July 21 ASBESTOS LITIGATION: 135 Cases Pending v. GenCorp Inc. at May 31 ASBESTOS LITIGATION: Motion to Disqualify Granted in Kramig Case ASBESTOS LITIGATION: Court Grants Defendants' Motions in Catania ASBESTOS LITIGATION: Court Dismisses McCormick Claim v. Railroad ASBESTOS LITIGATION: La. Court Junks Parker Civil Rights Lawsuit ASBESTOS LITIGATION: Appeals Court Upholds GE's Summary Judgment ASBESTOS LITIGATION: Supreme Court Enters Ruling in Rando Action ASBESTOS LITIGATION: Flintkote's Bid for Reserves Discovery OK'd ASBESTOS LITIGATION: Hazard Alert Raised on Sheffield Playground ASBESTOS LITIGATION: Wroughton Museum Denies Presence of Hazards ASBESTOS LITIGATION: Battle Calls For Research Center in Leeds ASBESTOS LITIGATION: Marystown Shipyard Calls for Payout Reforms ASBESTOS LITIGATION: CSI Toy Customers Eligible to Get Refunds ASBESTOS LITIGATION: Calif. Court Grants Dobrocke Remand Motion ASBESTOS LITIGATION: Settlement Entered in 3M Derivative Action ASBESTOS ALERT: Ontario Local to Pay $87.5T for Handling Breach ASBESTOS ALERT: Pavilion, Balkema Cited in Waste Handling Claim ********* APCC SERVICES: Bronstein Gewirtz Files N.Y Suit Over Overcharges ---------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, announces that a class action lawsuit has been filed in the United States District Court for the Eastern District of New York, entitled, "Dollar Phone Corp. v. APCC Services, Inc. ("APCC"), Case No. 09-2735." APCC is the collection agent for many independent payphone service providers ("PSPs"). The proposed class includes all telecom carriers (as well as any company that has a toll-free "8XX" number) that may have been overcharged for toll free payphone calls made on the payphones APCC represented between June 1, 2004 and June 26, 2009. The lawsuit seeks to recover any overpayments to APCC and an injunction against the alleged wrongful collection tactics of APCC. The complaint alleges APCC violated the Federal Communications Act as follows: First, the complaint alleges APCC improperly collected FCC mandated payments from carriers for ostensibly toll free payphone calls made by the carriers' customers that in fact were not toll free. Second, the complaint alleges APCC violated 47 U.S.C. Section 276(b)(1)(a) which requires the commission to "establish a per call compensation plan to ensure that all payphone service providers are fairly compensated for each and every completed intrastate and interstate call using their payphones." The complaint alleges APCC grabbed for itself significant amounts of carrier payments made to compensate PSPs, but which APCC has never delivered to any PSP. Third, the complaint alleges APCC has demanded payment from carriers for calls that were made from a digitized list of payphone telephone numbers provided by APCC, many of which are not really payphones at all. The complaint seeks to enjoin APCC from seeking payphone compensation not made from payphones, and to require APCC to refund improper payphone compensation that it has collected. No class has yet been certified in the above action. For more details, contact: Peretz Bronstein, Esq. Eitan Kimelman (eitan@bgandg.com) Bronstein, Gewirtz & Grossman, LLC Phone: 212-697-6484 Web site: http://www.bgandg.com/ BONITA BAY: Faces TwinEagles Members' Litigation in Florida ----------------------------------------------------------- Bonita Bay Group, the developer of TwinEagles golf courses, is facing a purported class-action lawsuit in in Collier County Circuit Court that was filed by members of TwinEagles, Dick Hogan of The News-Press reports. Greg Hardwig and Laura Layden of Naples Daily News previously reported that the members filed the class-action lawsuit in June against the developer for breach of contract, seeking relief on dues owed, and permission to pay dues into the court registry instead of giving the money to Bonita Bay, reports Naples Daily News. The financially troubled developer has closed both of the community's championship courses and the clubhouse, including a restaurant and fitness center, Naples Daily News reported. John Emmanuel, Esq., an attorney with Fowler White Boggs in Tampa is representing TwinEagles members, according to Naples Daily News. For more details, contact: Fowler White Boggs 501 E. Kennedy Boulevard Suite 1700 Tampa, Florida 33602 Phone: (813) 228-7411 Fax: (813) 229-8313 Web site: http://www.fowlerwhite.com/ DES MOINES: Seeks Decertification of Franchise Fees Litigation -------------------------------------------------------------- The City of Des Moines, Iowa is seeking for the decertification of a class-action lawsuit over its franchise fee for gas and electric utilities, The Associated Press reports. Darwin Danielson of Radio Iowa previously reported that Judge Joel Novak of Polk County District Court ruled in a class- action case against the City of Des Moines, Iowa that the city owes utility customers millions of dollars in refunds for what he calls "illegal fees" (Class Action Reporter, June 12, 2009). Des Moines has been collecting around $13-million a year in franchise fees from customers of Mid-American Energy to cover the costs of such services as trimming trees around power lines, according to the Radio Iowa report. When Des Moines resident Lisa Kragnes noticed the extra charge on her utility bill in 2004, she decided to challenge it in court. Brad Schroeder, Esq. represented Mr. Kragnes and says Judge Joel Novak found the city collected much more money than it needed, Radio Iowa reported. "They've been collecting a five percent fee and the judge said only one-and-a-quarter percent approximately is justified. The remainder is an illegal tax that the city has been charging without the authority to do so," Mr. Schroeder tells Radio Iowa. Mr. Schroeder estimates Des Moines owes Mid American Energy customers $43-millions in refunds for the period between 2004 and now. The franchise fee costs the average Des Moines household a little more than one hundred dollars per year. City officials say they will appeal the ruling, reports Radio Iowa. The Chicago Tribune previously reported that a Polk County judge has ruled that a lawsuit over the city of Des Moines' utility franchise fee can continue as a class-action case (Class Action Reporter, Sept. 1, 2008). According to Chicago Tribune, Judge Joel Novak has ruled that the attorney for Lisa Kragnes "has the financial wherewithal to proceed" and can adequately protect the interests of Des Moines utility customers. The report recounts that the city has fought the class-action certification saying it could draw up to 124,000 customers into the court fight. Ms. Kragnes filed the lawsuit in 2004, claiming that the 5% fee on natural gas and electrical bills in Des Moines is an illegal tax, the report recalls. DITECH NETWORKS: Appeal to Securities Suit Ruling Nixed in April ---------------------------------------------------------------- The appeal by the plaintiffs in the action entitled, "In re Ditech Communications Corp. Securities Litigation, No. C 05- 02406-JSW," was dismissed in April 2009, according to the company's July 1, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2009. Beginning on June 14, 2005, several purported class-action lawsuits were filed in the U.S. District Court for the Northern District of California, purportedly on behalf of a class of investors who purchased Ditech's stock between Aug. 25, 2004 and May 26, 2005. The complaints allege claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against Ditech and its Chief Executive Officer and Chief Financial Officer in connection with alleged misrepresentations concerning Voice Quality Assurance (VQA) orders and the potential effect on Ditech of the merger between Sprint and Nextel, seeking monetary damages. All of the lawsuits were consolidated into a single action entitled, "In re Ditech Communications Corp. Securities Litigation, No. C 05-02406-JSW," and a consolidated amended complaint was filed on Feb. 2, 2006. The defendants moved to dismiss the complaint, and by order dated Aug. 10, 2006, the court granted the defendants' motion and dismissed the complaint with leave to amend. The plaintiffs filed their Second Amended Complaint on Sept. 11, 2006. The defendants again moved to dismiss, and by order dated March 22, 2007, the court dismissed the Second Amended Complaint with leave to amend. The plaintiffs filed their Third Amended Complaint on April 23, 2007. On May 14, 2007, the defendants again moved to dismiss. By order dated Oct. 11, 2007, the court dismissed the third amended complaint with prejudice. On Nov. 8, 2007, the plaintiffs filed a notice of appeal to the Ninth U.S. Circuit Court of Appeals. The appeal has been fully briefed. On April 1, 2009, the parties filed a stipulated motion for dismissal of the appeal. On April 14, 2009, the Ninth Circuit dismissed the appeal. With the dismissal of the appeal, the district court's order dismissing the third amended complaint with prejudice stands and is the final judgment in this action. Ditech Networks, Inc. -- http://www.ditechnetworks.com-- is a global telecommunications equipment supplier for voice networks. The Company's solutions enable service providers to deliver consistently clear, secure, end-to-end communications to their customers worldwide. Its voice quality products include echo cancellers, which are used to effectively eliminate echo, a problem in existing and emerging voice networks. The Company designs, develops and markets system-based voice quality products for mobile networks throughout the world. Its productsfeature hardware systems coupled with an array of voice optimization and measurement software to enhance the quality of voice communications. The Company designs, develops and markets systems that ensure service providers can provide consistently clear, secure, end-to-end, voice-over Internet protocol (VoIP) communications to their customers throughout the world. GILDAN ACTIVEWEAR: N.Y. Court Dismisses Securities Fraud Lawsuit ---------------------------------------------------------------- The U.S. District Court for the Southern District of New York dismissed a consolidated securities fraud class-action entitled, "In re Gildan Activewear, Inc. Securities Litigation, Case No. 08 Civ. 5048 (HB)," Andrew Longstreth of Am Law Litigation Daily reports. On July 1, 2009, the court granted a motion by the defendants to dismiss the case, according to Am Law Litigation Daily. In general, the complaint charges Gildan and certain of its officers and directors with violations of the Securities Exchange Act of 1934. More specifically, the Complaint alleges that the Company failed to disclose and misrepresented the following material adverse facts which were known to defendants or recklessly disregarded by them: (1) that the Company's Dominican Republic textile facility was underperforming; (2) that as a result, sales of the Company's activewear were performing below expectations; (3) that the Company had materially overstated its financial results by failing to timely write-down an impairment in the value of its inventories; (4) that the Company lacked adequate internal and financial controls; and (5) that, as a result of the foregoing, the Company's statements about its financial well-being and future business prospects were lacking in any reasonable basis when made. On April 29, 2008, the Company shocked investors when it announced that it was reducing its second quarter 2008 earnings guidance from $0.42 per share to $0.35 per share, and reducing its fiscal 2008 earnings guidance from $1.85-$1.90 to $1.45 $1.50 per share. The Company stated that this was due to lower than projected unit sales growth in activewear (as a result of a shortfall in production for the Dominican Republic textile facility), a write-down of inventories of discontinued retail product-lines, and additional costs incurred to service mass market retailers during the integration of retail information systems. Upon the release of this news, the Company's shares fell $10.99 per share, or 30.6 percent, to close on April 29, 2008 at $24.93 per share, on unusually heavy trading volume. A copy of the decision is available free of charge at: http://ResearchArchives.com/t/s?3ed9 ISRAEL ELECTRIC: Gush Etzion Files Suit Over Electricity Outages ---------------------------------------------------------------- Residents of Gush Etzion have filed a lawsuit against Israel Electric Corp. (IEC) with the Tel Aviv District Court, and asked it to be recognized as a class-action suit, Yitzhak Danon of Globes reports. They are seeking fair compensation for damages caused by repeated power outages to their communities, according to Globes. The statement of claim says that IEC's electricity supply to Gush Etzion is unreliable, with frequent disruptions including outages, crashes, power surges, changes in tension, and other breakdowns, which cause damage, breakdowns, distress, and great pain to IEC customers in Gush Etzion. The statement adds that the residents have been suffering from repeated breakdowns for years, Globes reported. The claimants claim that the frequent outages harm their quality of life, damage property, and sometimes cause physical harm. They asked the court to order IEC to carry out the necessary maintenance work within a reasonable period of time determined by the court in order to prevent extraordinary breakdowns in the electricity supply, and to order the company to make repairs immediately upon the discovery of breakdowns, reports Globes. Globes reported that the claimants also asked the court to order IEC to pay each claimant NIS 990 for financial damages, for a total of NIS 4.9 million, and NIS 1,500 per claimant for non- financial damages (pain and suffering), for a total of NIS 34 million. JABIL CIRCUIT: Defending Appeal to Dismissal of Securities Suit --------------------------------------------------------------- Jabil Circuit, Inc. continues to defend an appeal on the U.S. District Court for the Middle District of Florida's dismissal of the second amended complaint in a consolidated securities fraud lawsuit, according to its July 6, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 31, 2009. On Sept. 18, 2006, a putative shareholder class-action complaint was filed in the U.S. District Court for the Middle District of Florida, captioned, "Edward J. Goodman Life Income Trust v. Jabil Circuit, Inc., et al., No. 8:06-cv-01716" against the company and various of its present and former officers and directors. The suit was brought on behalf of a proposed class of plaintiffs comprised of persons who purchased shares of the company between Sept. 19, 2001, and June 21, 2006. It asserted claims under Section 10(b) of the U.S. Securities and Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, as well as under Section 20(a) of that Act. Specifically, the complaint alleged that the defendants had engaged in a scheme to fraudulently backdate the grant dates of options for various senior officers and directors, causing the company's financial statements to understate management compensation and overstate net earnings, thereby inflating the company's stock price. In addition, the suit alleged that the company's proxy statements falsely stated that the company had adhered to its option grant policy of granting options at the closing price of its shares on the trading date immediately prior to the date of the grant. A second putative class-action suit, containing virtually identical legal claims and allegations of fact, captioned, "Steven M. Noe v. Jabil Circuit, Inc., et al., No., 8:06-cv- 01883," was filed on Oct. 12, 2006. The two actions were consolidated into a single proceeding and on Jan. 18, 2007, the Court appointed The Laborers Pension Trust Fund for Northern California and Pension Trust Fund for Operating Engineers as lead plaintiffs in the action. On March 5, 2007, the lead plaintiffs filed a consolidated class-action complaint. The Consolidated class-action Complaint is purported to be brought on behalf of all persons who purchased the company's publicly traded securities between Sept. 19, 2001, and Dec. 21, 2006, and names the company and certain of its current and former officers, including: -- Forbes I.J. Alexander, -- Scott D. Brown, -- Wesley B. Edwards, -- Chris A. Lewis, -- Mark T. Mondello, -- Robert L. Paver, and -- Ronald J. Rapp, as well as certain of the company's directors: -- Mel S. Lavitt, -- William D. Morean, -- Frank A. Newman, -- Laurence S. Grafstein, -- Steven A. Raymund, -- Lawrence J. Murphy, -- Kathleen A. Walters, and -- Thomas A. Sansone. The Consolidated class-action Complaint alleged violations of Sections 10(b), 20(a), and 14(a) of the U.S. Securities and Exchange Act and the rules promulgated thereunder. It contained allegations of fact and legal claims similar to the original putative class-action and, in addition, alleged that the defendants failed to timely disclose the facts and circumstances that led the company, on June 12, 2006, to announce that it was lowering its prior guidance for net earnings for the third quarter of fiscal year 2006. On April 30, 2007, the plaintiffs filed a first amended consolidated class-action complaint asserting claims substantially similar to the Consolidated class-action Complaint it replaced but adding allegations relating to the restatement of earnings previously announced in connection with the correction of errors in the calculation of compensation expense for certain stock option grants. At the company's request, the Court, on April 9, 2008, dismissed the First Amended Consolidated class-action Complaint without prejudice, but with leave to amend the complaint by May 12, 2008. On May 12, 2008, the plaintiffs filed a Second Amended Class Action Complaint. The Second Amended class-action Complaint asserts substantially the same causes of action against the same defendants, predicated largely on the same allegations of fact as in the First Amended Consolidated class-action Complaint except insofar as plaintiffs added KPMG LLP, the company's independent registered public accounting firm, as a defendant and added additional allegations with respect to: -- pre-class period option grants, -- the professional background of certain defendants, -- option grants to non-executive employees, -- the restatement of the Company's financial results for certain periods between 1996 and 2005, and -- trading by the named plaintiffs and certain of the defendants during the class period. The Second Amended class-action Complaint also includes an additional claim for insider trading against certain defendants pursuant to Rules 10b-5 and 10b5-1 promulgated pursuant to the Exchange Act. The company filed a motion to dismiss this amended complaint. On Jan. 26, 2009, the Court dismissed the Second Amended Class Action Complaint with prejudice. The plaintiffs appealed this dismissal on Feb. 20, 2009. The suit is "Edward J. Goodman Life Income Trust v. Jabil Circuit, Inc. et al., Case No. 8:06-cv-01716-SDM-EAJ," filed in the U.S. District Court for the Middle District of Florida under Judge Steven D. Merryday. Representing the plaintiffs is: William E. Hoese (whoese@kohnswift.com) Kohn, Swift & Graf, P.C. 1101 Market St., Suite 2400 Philadelphia, PA 19107-3389 Phone: 215-238-1700 Representing the defendants is: Michael L. Chapman, Esq. (michael.chapman@hklaw.com) Holland & Knight, LLP 100 N. Tampa St., Ste. 4100, PO Box 1288 Tampa, FL 33601-1288 Phone: 813-227-8500 Fax: 813-229-0134 JACKSON HEWITT: Awaits Ruling on Motion to Dismiss "Norris" Suit ---------------------------------------------------------------- Jackson Hewitt Tax Service Inc. awaits a ruling on its motion to dismiss the purported class-action complaint by Quiana Norris in the Superior Court of Indiana, Marion County. On April 14, 2009, Quiana Norris brought a purported class- action complaint against the company in the Superior Court of Indiana, Marion County, on behalf of Indiana customers who obtained RALs facilitated by the company, for an alleged failure to comply with Indiana's Credit Services Organization Act, and seeking damages and injunctive relief. On May 1, 2009, the company filed a notice removing the complaint to the U.S. District Court for the Southern District of Indiana. On June 8, 2009, the company filed a motion to dismiss. A decision by the Court is currently pending, according to the company's July 2, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2009. Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/ -- provides computerized preparation of federal, state and local individual income tax returns through a network of franchised and company-owned tax offices operating under the brand name Jackson Hewitt Tax Service in the U.S. The Company provides its customers with accurate tax return preparation services and electronic filing. JACKSON HEWITT: "Gomez" Suit in Maryland Dismissed Last June 18 --------------------------------------------------------------- A purported class-action complaint by Alicia Gomez against Jackson Hewitt Tax Service Inc. was dismissed last June 18, 2009. On Feb. 16, 2009, Ms. Gomez brought a purported class-action complaint against the company in the Circuit Court of Maryland, Montgomery County, on behalf of Maryland customers who obtained RALs facilitated by the company, for an alleged failure to comply with Maryland's Credit Services Businesses Act, and for an alleged violation of Maryland's Consumer Protection Act, and seeking damages and injunctive relief. On March 18, 2009, the company filed a motion to dismiss. On June 18, 2009, the Court granted the company's motion to dismiss in all respects, dismissing the plaintiff's complaint. Plaintiff has a right to appeal, according to its July 2, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2009. Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/ -- provides computerized preparation of federal, state and local individual income tax returns through a network of franchised and company-owned tax offices operating under the brand name Jackson Hewitt Tax Service in the U.S. The Company provides its customers with accurate tax return preparation services and electronic filing. JACKSON HEWITT: Plaintiff Appeals Ruling in Ohio CSOA Litigation ---------------------------------------------------------------- The plaintiff in a purported class-action complaint filed against Jackson Hewitt Tax Service Inc. in the Ohio Court of Common Pleas, Cuyahoga County is appealing a lower court decision to stay proceedings and to compel arbitration in the matter. On Sept. 26, 2006, Willie Brown brought a purported class-action complaint against the company in the Ohio Court of Common Pleas, Cuyahoga County, on behalf of Ohio customers who obtained RALs facilitated by the company, for an alleged failure to comply with Ohio's Credit Services Organization Act, and for alleged unfair and deceptive acts in violation of Ohio's Consumer Sales Practices Act, and seeking damages and injunctive relief. On Nov. 10, 2008, the company filed a motion to dismiss, or alternatively, to stay proceedings and to compel arbitration. On May 5, 2009, the Court granted the company's motion to stay proceedings and to compel individual arbitration of Plaintiff's claims, and denied the company's motion to dismiss. Plaintiff subsequently filed a notice of appeal of the Court's decision to stay proceedings and to compel arbitration, according to the company's July 2, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2009. Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/ -- provides computerized preparation of federal, state and local individual income tax returns through a network of franchised and company-owned tax offices operating under the brand name Jackson Hewitt Tax Service in the U.S. The Company provides its customers with accurate tax return preparation services and electronic filing. JACKSON HEWITT: Seeks to Dismiss Suit by Missouri RAL Customers --------------------------------------------------------------- Jackson Hewitt Tax Service Inc. seeks to dismiss Sherita Fugate's purported class-action complaint, according to the company's July 2, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2009. On April 29, 2009, Sherita Fugate brought a purported class- action complaint against the company in the Circuit Court of Missouri, Jackson County, on behalf of Missouri customers who obtained RALs facilitated by the company, for an alleged failure to comply with Missouri's Credit Services Organization Act, for an alleged violation of Missouri's Merchandising Practices Act, and seeking damages and injunctive relief. On May 29, 2009, the company filed a motion to dismiss. Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/ -- provides computerized preparation of federal, state and local individual income tax returns through a network of franchised and company-owned tax offices operating under the brand name Jackson Hewitt Tax Service in the U.S. The Company provides its customers with accurate tax return preparation services and electronic filing. JACKSON HEWITT: Settlement of Suit Over RALs Approved in April -------------------------------------------------------------- Settlement of the purported class-action suit filed by Canieva Hood and Congress of California Seniors against Santa Barbara Bank & Trust ("SBB&T") and Jackson Hewitt Tax Service Inc. received final court approval in April 2009. On March 18, 2003, Canieva Hood and Congress of California Seniors brought a purported class-action suit against SBB&T and the company in the Superior Court of California (Santa Barbara, following a transfer from San Francisco) seeking declaratory relief in connection with the provision of RALs, as to the lawfulness of the practice of cross-lender debt collection, as to the validity of SBB&T's cross- lender debt collection provision and as to whether the method of disclosure to customers with respect to the provision is unlawful or fraudulent, and seeking injunctive relief, restitution, disgorgement, compensatory damages, statutory damages, punitive damages, attorneys' fees, and expenses. The company was named in the action for allegedly collaborating, and aiding and abetting, in the actions of SBB&T. The Congress of California Seniors was subsequently removed, and Tyree Bowman was added, as a plaintiff. On Dec. 18, 2003, Ms. Hood also filed a separate suit against the Company in the Ohio Court of Common Pleas (Montgomery County) and sought to certify a class in the action. The allegations of negligence, breach of fiduciary duty, and violation of certain Ohio law relate to the same set of facts as the California action. Plaintiff sought equitable and declaratory relief, damages, attorneys' fees, and expenses. In order to avoid the costs and inconvenience of continued litigation, the company agreed to a settlement in the Hood California matter in connection with an overall settlement by the other defendant, SBB&T, and the third-party bank cross- defendants. On April 29, 2009, the Court ordered final approval of the settlement and entered judgment in the matter. The settlement provides for a payment by the company of $2.8 million as part of an overall settlement amount. In connection with the settlement of the Hood California matter, the Hood Ohio matter was dismissed with prejudice. As of April 30, 2009, the company had a liability of $2.8 million included in accounts payable and accrued liabilities for settlement of this matter, according to its July 2, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2009. Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/ -- provides computerized preparation of federal, state and local individual income tax returns through a network of franchised and company-owned tax offices operating under the brand name Jackson Hewitt Tax Service in the U.S. The Company provides its customers with accurate tax return preparation services and electronic filing. JACKSON HEWITT: Virginia RAL Customers' Suit in Pretrial Stage -------------------------------------------------------------- A purported class-action complaint against Jackson Hewitt Tax Service Inc. in the U.S. District Court, Southern District of West Virginia, is in its pretrial stage, according to the company's July 2, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2009. On Oct. 30, 2006, Linda Hunter (now substituted by Christian Harper and Elizabeth Harper as proposed class representatives) brought a purported class-action complaint against the company in the U.S. District Court, Southern District of West Virginia, on behalf of West Virginia customers who obtained RALs facilitated by the company, seeking damages for an alleged breach of fiduciary duty, for alleged breach of West Virginia's Credit Service Organization Act, for alleged breach of contract, and for alleged unfair or deceptive acts or practices in connection with the company's RAL facilitation activities. On March 13, 2008, the Court granted the company's partial motion for summary judgment on plaintiff's breach of contract claim. On July 15, 2008, the company answered the first amended complaint. On Feb. 10, 2009, Plaintiffs filed a motion to certify a class. The company opposed that motion. On Feb. 11, 2009, Plaintiffs filed a motion for partial summary judgment. On the same day, the company filed a motion for summary judgment. On March 6, 2009, the company opposed Plaintiffs' motion for partial summary judgment. On April 7, 2009, Plaintiffs filed a motion seeking the certifications of four legal questions to the West Virginia Supreme Court of Appeals. Decisions by the Court on those motions are currently pending. Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/ -- provides computerized preparation of federal, state and local individual income tax returns through a network of franchised and company-owned tax offices operating under the brand name Jackson Hewitt Tax Service in the U.S. The Company provides its customers with accurate tax return preparation services and electronic filing. JACKSON HEWITT: "Wooley" Suit Over False Deductions in Discovery ---------------------------------------------------------------- A purported class-action complaint filed by Brent Wooley against Jackson Hewitt Tax Service Inc. is in its discovery and pretrial stage, according to the company's July 2, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2009. On April 20, 2007, Brent Wooley brought a purported class-action complaint against the company and certain unknown franchisees in the U.S. District Court, Northern District of Illinois. The complaint, which was subsequently amended, was brought on behalf of customers who obtained tax return preparation services that allegedly included false deductions without support by the customer that resulted in penalties being assessed by the IRS against the taxpayer for violations of the Illinois Consumer Fraud and Deceptive Practices Act, and the Racketeering and Corrupt Organizations Act, and alleging unjust enrichment and breach of contract, seeking compensatory and punitive damages, restitution, and attorneys' fees. The alleged violations of the Illinois Consumer Fraud and Deceptive Practices Act relate to representations regarding tax return preparation, Basic Guarantee and Gold Guarantee coverage and denial of Gold Guarantee claims. Following dispositive motions, on Dec. 24, 2008, the company answered Plaintiff's fourth amended complaint with respect to the remaining breach of contract claim. Jackson Hewitt Tax Service Inc. -- http://www.jacksonhewitt.com/ -- provides computerized preparation of federal, state and local individual income tax returns through a network of franchised and company-owned tax offices operating under the brand name Jackson Hewitt Tax Service in the U.S. The Company provides its customers with accurate tax return preparation services and electronic filing. MASTERCARD INC: To Make Remaining Settlement Prepayment in Sept. ---------------------------------------------------------------- MasterCard Incorporated will make a prepayment of its remaining payment obligations in an antitrust class-action lawsuit settlement on Sept. 30, 2009. Under a Settlement Agreement dated as of June 4, 2003, between MasterCard International Incorporated the principal operating subsidiary of MasterCard, and a number of U.S. merchants in a class-action lawsuit challenging certain aspects of the payment card industry under U.S. federal antitrust law, MasterCard was required to pay US$125 million in 2003, and US$100 million annually each December from 2004 through 2012 in connection with the settlement of the litigation. On July 1, 2009, the company entered into an agreement (the "Prepayment Agreement") with the plaintiffs to modify its payment obligations under the Settlement Agreement. Pursuant to the Prepayment Agreement, the company will make a prepayment of its remaining US$400 million in payment obligations at a discounted amount of US$335 million on Sept. 30, 2009. The Prepayment Agreement is subject to court approval, according to the company's Form 8-K filing with the U.S. Securities and Exchange Commission dated July 2, 2009. MasterCard, Inc. -- http://www.mastercard.com/-- is a global payment solutions company that provides a variety of services in support of the credit, debit and related payment programs of over 24,000 financial institutions and other entities that are its customers. Through its three-tiered business model as franchisor, processor and advisor, the company develops and markets payment solutions, process payment transactions, and provides support services to its customers and, depending upon the service, to merchants and other clients. It manages a family of payment card brands, including MasterCard, MasterCard Electronic, Maestro and Cirrus, which it license to its customers. The Company conducts its business principally through MasterCard Incorporated's principal operating subsidiary, MasterCard International Incorporated. MATRIXX INITIATIVES: Faces "Sample" Economic Lawsuit in Calif. -------------------------------------------------------------- Matrixx Initiatives, Inc. faces a class-action lawsuit styled, "Barbara Sample et al. vs. Matrixx Initiatives, Inc. et al.," pending in the U.S. District Court for the Central District of California. On June 23, 2009, an economic class-action lawsuit was filed against the company, purportedly on behalf of all persons who purchased Zicam Cold Remedy nasal gel products while in California or from a source in California within the four years prior to June 23, 2009. According to its Form 8-K filing with the U.S. Securities and Exchange Commission dated July 2, 2009, the lawsuit alleges, among other things, that the company concealed or omitted material information regarding the safety of the nasal gel products. Matrixx Initiatives, Inc. -- http://www.matrixxinc.com/-- develops, produces, markets and sells over-the-counter (OTC) healthcare products with an emphasis on those that utilize delivery systems that provide consumers with Better Ways to Get Better. Through its subsidiary, Zicam, LLC, the Company markets and sells products under the Zicam brand. The Company's product offerings consist of four product classes within the cough and cold category: Cold Remedy; Allergy/Sinus; Cough and Multi- Symptom relief, and other cough/cold. In addition, the Company had sold products under the Nasal Comfort and Xcid brand names. Its Zicam products are marketed in the cough and cold market category. During the fiscal year ended March 31, 2009 (fiscal 2009), the Company's top 15 customers accounted for more than 80% of its net sales and three customers each accounted for more than 10% of the Company's net sales. In May 2008, the Company formed Zicam Canada, Inc. to commercialize sales of Zicam products in Canada. MATRIXX INITIATIVES: Faces Suit by Purchasers of Zicam Products --------------------------------------------------------------- Matrixx Initiatives, Inc. faces an economic class-action lawsuit by purchasers of zinc-based nasal and oral Zicam products, according to the company's Form 8-K filing with the U.S. Securities and Exchange Commission dated July 2, 2009. On June 18, 2009, the lawsuit was filed against the company, purportedly on behalf of all persons in the States of Illinois, California, Florida, Texas, Minnesota, Wisconsin and Missouri who, at any time within the applicable statute of limitations of their respective state, purchased zinc-based nasal and oral Zicam products. The lawsuit alleges, among other things, that the company falsely represented the effectiveness of these products. The suit is captioned Thomas Hohman et al. vs. Matrixx Initiatives, Inc. et al., in the U.S. District Court, Northern District of Illinois (Eastern Division). Matrixx Initiatives, Inc. -- http://www.matrixxinc.com/-- develops, produces, markets and sells over-the-counter (OTC) healthcare products with an emphasis on those that utilize delivery systems that provide consumers with Better Ways to Get Better. Through its subsidiary, Zicam, LLC, the Company markets and sells products under the Zicam brand. The Company's product offerings consist of four product classes within the cough and cold category: Cold Remedy; Allergy/Sinus; Cough and Multi- Symptom relief, and other cough/cold. In addition, the Company had sold products under the Nasal Comfort and Xcid brand names. Its Zicam products are marketed in the cough and cold market category. During the fiscal year ended March 31, 2009 (fiscal 2009), the Company's top 15 customers accounted for more than 80% of its net sales and three customers each accounted for more than 10% of the Company's net sales. In May 2008, the Company formed Zicam Canada, Inc. to commercialize sales of Zicam products in Canada. MATRIXX INITIATIVES: Faces Suits by Cold Remedy Nasal Gel Buyers ---------------------------------------------------------------- Matrixx Initiatives, Inc. faces four economic class-action lawsuits filed by purchasers of Zicam Cold Remedy nasal gel products, according to the company's Form 8-K filing with the U.S. Securities and Exchange Commission dated July 2, 2009. The plaintiffs allege, among other things, that the company concealed or omitted material information regarding the safety of the nasal gel products. The lawsuits have been filed against the company since the U.S. Food and Drugs Administration's issuance of a warning letter. The lawsuits are styled: -- Teperson et al. vs. Matrixx Initiatives, Inc. et al., U.S. District Court for the Southern District of California, filed June 24, 2009 (purportedly on behalf of all California residents who purchased Zicam nasal gel products from and after June 24, 2005); -- Floyd Fessler et al., vs. Matrixx Initiatives, Inc. et al., U.S. District Court for the Southern District of Illinois, filed June 25, 2009 (purportedly on behalf of all Illinois residents who purchased Zicam nasal gel products); -- Stewart Roper et al., vs. Matrixx Initiatives, Inc. et al., U.S. District Court for the District of Arizona, filed June 25, 2009 (purportedly on behalf of all purchasers of Zicam nasal gel products in the United States); and -- Stefanie Riepe et al., vs. Matrixx Initiatives, Inc. et al., U.S. District Court for the Western District of Missouri, filed June 22, 2009 (purportedly on behalf of all Missouri residents who purchased Zicam nasal gel products). Matrixx Initiatives, Inc. -- http://www.matrixxinc.com/-- develops, produces, markets and sells over-the-counter (OTC) healthcare products with an emphasis on those that utilize delivery systems that provide consumers with Better Ways to Get Better. Through its subsidiary, Zicam, LLC, the Company markets and sells products under the Zicam brand. The Company's product offerings consist of four product classes within the cough and cold category: Cold Remedy; Allergy/Sinus; Cough and Multi- Symptom relief, and other cough/cold. In addition, the Company had sold products under the Nasal Comfort and Xcid brand names. Its Zicam products are marketed in the cough and cold market category. During the fiscal year ended March 31, 2009 (fiscal 2009), the Company's top 15 customers accounted for more than 80% of its net sales and three customers each accounted for more than 10% of the Company's net sales. In May 2008, the Company formed Zicam Canada, Inc. to commercialize sales of Zicam products in Canada. META FINANCIAL: Guardian Angel Credit Union's Suit Still Pending ---------------------------------------------------------------- Meta Financial Group, Inc.'s subsidiary, MetaBank, continues to face a class-action complaint entitled, "Guardian Angel Credit Union v. MetaBank (Cause No. 08-CV-261-PB)." On July 14, 2008, the complaint was filed in the U.S. District Court for the District of New Hampshire. The suit was filed on behalf of Guardian Angel Credit Union and all other CD purchasers similarly situated, to recover funds in connection with purported MetaBank certificates of deposit. No further updates on the complaint were disclosed by the company in its July 6, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2009. Meta Financial Group, Inc. -- http://www.metacash.com/-- is a registered unitary savings and loan holding company. MetaBank (the Bank), the only direct, active full service banking subsidiary of Meta Financial, is a community-oriented financial institution offering a variety of financial services to meet the needs of the communities it serves and a payments company that provides services nationwide. The company provides a range of financial services. The principal business of MetaBank is attracting retail deposits from the general public and investing those funds primarily in one- to four-family residential mortgage loans, commercial and multi-family real estate, agricultural operations and real estate, construction, and consumer and commercial business loans primarily in MetaBank's market areas. MetaBank also purchases mortgage-backed securities and other investments permissible under applicable regulations. Meta Financial also owns Meta Trust Company, a South Dakota trust corporation. NATCO GROUP: Levi & Korsinsky Files Lawsuit Over Proposed Merger ---------------------------------------------------------------- Levi & Korsinsky announces that a class action lawsuit has been filed in the Delaware Chancery Court challenging the proposed acquisition of NATCO Group, Inc. (NYSE: NTG). The Complaint arises out of the announcement by NATCO stating that it had entered into a definitive merger agreement with Cameron International Corporation (NYSE: CAM). Under the merger agreement, NATCO shareholders will receive 1.185 shares of CAM stock for each share of NATCO they own, or approximately NATCO $38.45 per share, for a total transaction value of approximately $780 million based on the $32.45 June 1, 2009 closing price of CAM stock, the price of CAM stock the day before the merger was announced. The transaction appears unfair given that, between January and November 2008, NATCO traded in the range of $41.00-$55.00 a share and that prior to May 26, 2009, Cameron shares have only traded above $30.00 on only three days since October 2008. For more details, contact: Eduard Korsinsky, Esq. Juan E. Monteverde, Esq. Levi & Korsinsky, LLP 30 Broad Street - 15th Floor New York, NY 10004 Phone: (212) 363-7500 Fax: (212) 363-7171 Web site: http://www.zlk.com/ntg1.html RECREATION CENTERS: Homeowners Win in Annual Assessment Lawsuit --------------------------------------------------------------- Judge Edward O. Burke of Superior Court in Maricopa County has sided with members of the Viewpoint Lake Homeowners Association in their case against the the Recreation Centers of Sun City, Jeff Dempsey of Daily News-Sun reports. The judge recently ruled that the RCSC cannot raise the annual assessment charged to Viewpoint Lake homeowners by more than the amount of the Consumer Price Index, nor can the association stop maintaining the lake. "We are glad to have these issues behind us, and we look forward to working with RCSC in the future to ensure everyone in Sun City can continue to use and enjoy all the Lake has to offer," said Nancy Mangone, the attorney who represented the homeowners. Six homeowners -- represented by Nancy Mangone, Esq. -- filed the class-action lawsuit in February after the RCSC said it would be raise the annual assessment on lakeside property owners. The homeowners maintained that the contracts were valid and long-standing and should be honored. RCSC General Manager Jan Ek said in explaining the decision to ignore the agreement that the RCSC believed it was unenforceable. However, in deciding the case, Judge Burke disagreed, finding that the RCSC is required to comply with the terms of two agreements: a 1975 agreement, which provided that RCSC, as the owner of the lake, is required to pay 50 percent of the costs off the top; and a 1979 settlement agreement, which provided a fixed formula for allocating water usage and maintenance costs for Viewpoint Lake among the lakefront property owners. The Court also ruled that the 1979 agreement is a "fair and equitable" settlement of a prior dispute that "has been honored for the past 30 years." The RCSC argued that the homeowners association was not a legally constituted organization when the agreement was reached and was therefore unable to lawfully execute the terms of the agreement. Judge Burke wrote in his decision, "One who deals with an association as a legal entity capable of transacting business and who thus receives money or value from that organization is estopped from denying its existence or its right to contract." Estoppel is a legal doctrine preventing one party from making an allegation or a denial that contradicts what that party has previously stated as the truth. In this case, the RCSC honored an agreement and benefited from it for 30 years and cannot now argue that the agreement was unlawful, the judge decided. SEMGROUP ENERGY: Consolidated Amended Securities Lawsuit Pending ---------------------------------------------------------------- SemGroup Energy Partners, L.P. continues to face a consolidated amended complaint filed as a putative class-action on behalf of all purchasers of the company's units from July 17, 2007 to July 17, 2008, according to Semgroup's July 2, 2009 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Between July 21, 2008 and Sept. 4, 2008, these class-action complaints were filed: 1. Poelman v. SemGroup Energy Partners, L.P., et al., Civil Action No. 08-CV-6477, in the United States District Court for the Southern District of New York (filed July 21, 2008). The plaintiff voluntarily dismissed this case on Aug. 26, 2008; 2. Carson v. SemGroup Energy Partners, L.P. et al., Civil Action No. 08-cv-425, in the Northern District of Oklahoma (filed July 22, 2008); 3. Charles D. Maurer SIMP Profit Sharing Plan f/b/o Charles D. Maurer v. SemGroup Energy Partners, L.P. et al., Civil Action No. 08-cv-6598, in the United States District Court for the Southern District of New York (filed July 25, 2008); 4. Michael Rubin v. SemGroup Energy Partners, L.P. et al., Civil Action No. 08-cv-7063, in the United States District Court for the Southern District of New York (filed Aug. 8, 2008); 5. Dharam V. Jain v. SemGroup Energy Partners, L.P. et al., Civil Action No. 08-cv-7510, in the U.S. District Court for the Southern District of New York (filed Aug. 25, 2008); and 6. William L. Hickman v. SemGroup Energy Partners, L.P. et al., Civil Action No. 08-cv-7749, in the United States District Court for the Southern District of New York (filed Sept. 4, 2008). Pursuant to a motion filed with the MDL Panel, the Maurer case has been transferred to the Northern District of Oklahoma and consolidated with the Carson case. The Rubin, Jain, and Hickman cases have also been transferred to the Northern District of Oklahoma. A hearing on motions for appointment as lead plaintiff was held in the Carson case on Oct. 17, 2008. At that hearing, the court granted a motion to consolidate the Carson and Maurer cases for pretrial proceedings, and the consolidated litigation is now pending as "In Re: SemGroup Energy Partners, L.P. Securities Litigation, Case No. 08-CV-425-GKF-PJC." The court entered an order on Oct. 27, 2008, granting the motion of Harvest Fund Advisors LLC to be appointed lead plaintiff in the consolidated litigation. On Jan. 23, 2009, the court entered a Scheduling Order providing, among other things, that the lead plaintiff may file a consolidated amended complaint within 70 days of the date of the order, and that defendants may answer or otherwise respond within 60 days of the date of the filing of a consolidated amended complaint. On Jan. 30, 2009, the lead plaintiff filed a motion to modify the stay of discovery provided for under the Private Securities Litigation Reform Act. The court granted Plaintiff's motion, and the company and certain other defendants filed a Petition for Writ of Mandamus in the Tenth Circuit Court of Appeals that was denied after oral argument on April 24, 2009. The lead plaintiff obtained an extension to file its consolidated amended complaint until May 4, 2009; defendants have 60 days from that date to answer or otherwise respond to the complaint. The lead plaintiff filed its consolidated amended complaint on May 4, 2009. In that complaint, filed as a putative class action on behalf of all purchasers of the company's units from July 17, 2007 to July 17, 2008 (the "class period"), lead plaintiff asserts claims under the federal securities laws against the company, its general partner, certain of its current and former officers and directors, certain underwriters in its initial and secondary public offerings, and certain entities who were investors in the Private Company and their individual representatives who served on the Private Company's management committee. Among other allegations, the amended complaint alleges that the company's financial condition throughout the class period was dependent upon speculative commodities trading by the Private Company and its Chief Executive Officer, Thomas L. Kivisto, and that Defendants negligently and intentionally failed to disclose this speculative trading in the company's public filings during the class period. Specifically, the amended complaint alleges claims for violations of sections 11, 12(a)(2), and 15 of the Securities Act of 1933 for damages and rescission with respect to all persons who purchased our units in the initial and secondary offerings, and also asserts claims under section 10b, Rule 10b- 5, and section 20(a) of the Securities and Exchange Act of 1934. The amended complaint seeks certification as a class-action under the Federal Rules of Civil Procedure, compensatory and rescissory damages for class members, pre-judgment interest, costs of court, and attorneys' fees. SemGroup Energy Partners, L.P. -- http://www.SGLP.com/-- owns and operates a diversified portfolio of complementary midstream energy assets. SemGroup Energy Partners provides crude oil and liquid asphalt cement terminalling and storage services and crude oil gathering and transportation services. SPECTRUM GROUP: To Contribute More Shares to Settlement Fund ------------------------------------------------------------ Spectrum Group International, Inc. still has to contribute 3,227,570 shares to the settlement fund in a securities class- action, entitled "In re Escala Group, Inc. Securities Litigation." On Dec. 3, 2008, the U.S. District Court for the Southern District of New York entered an order and final judgment granting final approval of the settlement of a securities class- action against the company and certain of its current and former officers and directors, titled, "In re Escala Group, Inc. Securities Litigation." The order and final judgment granting final approval of the settlement of the class-action required the company to contribute an aggregate of $6,000,000 in cash and 4,000,000 newly issued shares of its common stock to a settlement fund for the benefit of the class. As of June 30, 2009, the date of its latest Form 8-K filing with the U.S. Securities and Exchange Commission, the company has contributed the full $6,000,000 in cash to the settlement fund, and has issued to plaintiffs' counsel an aggregate of 772,430 shares of the company's common stock in payment of a portion of their court-approved legal fees. On Jan. 29, 2009, the company entered into a contract with plaintiffs' counsel in the securities class-action providing for Spectrum to repurchase 772,430 shares that it had issued to such counsel as payment of its court-approved legal fees, at a purchase price of $1.55 per share. This transaction closed on Feb. 9, 2009, at which time those shares were cancelled and returned to the status of authorized but unissued shares. However, the company is still required to contribute an additional 3,227,570 shares to the settlement fund. Pursuant to the order and final judgment, these shares must have a value of at least $2.00 per share, meaning that if the average closing price of the newly issued shares (based on a ten-day trading history) is less than $2.00 per share, the company will be required to issue additional shares and/or make an additional cash payment so that the settlement fund will receive, in the aggregate, cash and/or stock having an equivalent aggregate value of at least $6,455,140 (representing the product of the remaining 3,227,570 shares to be issued multiplied by $2.00 per share). During the 52-week period ending on June 19, 2009, the closing price for a share of our common stock ranged from $1.18 to $2.98 per share, and on June 19, 2009, the closing price for a share of our common stock was $2.51. The issuance of additional shares of the company's common stock could result in the dilution of its common stock, which could adversely affect the market price of its common stock, and the issuance of additional shares and/or the payment of additional cash amounts to the settlement fund could adversely affect Spectrum's liquidity and results of operations, according to the company's Form 8-K filing with the U.S. Securities and Exchange Commission dated June 30, 2009. Spectrum Group International, Inc. -- http://www.spectrumgi.com/ -- formerly Escala Group Inc., is a global collectibles network. The Company is an auctioneer of stamps, coins, arms, armor and militaria, and other memorabilia, targeting both collectors and dealers. Escala is also a merchant/dealer of certain collectibles and trader of precious metals. Escala conducts its operations in two business segments: collectibles and trading. The Company, through its subsidiaries focus on the Philatelic (stamps) side of the collectibles segments and it includes H.R. Harmer, Inc. and Nutmeg Stamp Sales, Inc., both in North America; Corinphila Auktionen of Zurich, Switzerland and Heinrich Kohler Auktionshaus of Wiesbaden, Germany, both in its European division; and John Bull Stamp Auctions, Ltd., which operates within Asia division. The trading segment of the Company operates through precious metals. It is one of the private sellers of bullion coins and bullion gold, silver and platinum to the wholesale marketplace. STIEFEL LABORATORIES: Faces Securities Fraud Lawsuit in Florida --------------------------------------------------------------- Stiefel Laboratories, Inc. faces a purported class-action suit that accuses it of duping employees into selling their shares back to the company for far less than their value before the April announcement of a blockbuster deal with London-based GlaxoSmithKline, The Miami Herald reports. The suit was filed on July 6, 2009 in the U.S. District Court for the Southern District of Florida by James A. Bacon, Karl F. Popp and Marion Burk, under the caption, "Bacon et al v. Stiefel Laboratories, Inc. et al., Case No. 1:2009-cv-21871." Aside from Stiefel Laboratories, others listed as defendants in the case are: Charles W. Stiefel, Brent D. Stiefel, Todd Stiefel, Lodewijk De Vink, Committee Member #1, Committee Member #2, Committee Member #3, Matt S. Pattullo, Terrence N. Bogush and Bogush & Grady, LLP The suit, which is seeking class-action status, alleges Stiefel employees lost out on $226 million by selling the shares for about a quarter of their actual value before GlaxoSmithKline agreed to buy Stiefel for as much as $3.6 billion. The class is estimated to be more than 200 people, according to The Miami Herald. The Miami Herald reported that it generally accuses the company and Chairman and CEO Charles Stiefel of securities fraud. Other directors are accused of breaching their fiduciary duty. For more details, contact: Beth-Ann Ellenberg Krimsky, Esq. (beth-ann.krimsky@ruden.com) Ruden McClosky Smith Schuster & Russell 200 E. Broward Boulevard 15th Floor PO Box 1900 Fort Lauderdale, FL 33302-1900 Phone: 954-764-6660 Fax: 954-333-4027 TEXAS BAY: Judge Denies Injunction Request in for Tenants' Suit --------------------------------------------------------------- Judge Gena Slaughter of the 191st State Civil District Court in Texas denied the request for an emergency injunction against the owners of the Barclay Square apartments to provide better cooling of their units, citing state property law, Laurence Iliff of The Dallas Morning News reports. "I do believe that the plaintiff has a serious problem," Judge Slaughter said, adding that she also believed tenants who reported health problems because of the heat. However, she said, "I preside over a court of law," according to The Dallas Morning News. The Dallas city housing code requires landlords to keep housing units at a maximum of 85 degrees. According to some residents, some apartments are hotter inside during the day than the outside temperature, reports The Dallas Morning News. However, the attorney for Barclay Square, Kenneth Chaiken, Esq. pointed out that the city did not send a representative to the hearing as promised. Part of the complaint involves city code, and the judge said she also thought a city representative was supposed to be present, The Dallas Morning News reported. Manny Alvarez, the tenants' attorney, told The Dallas Morning News that he will pursue a class-action lawsuit against the apartment complex owners and that the judge's comments showed his case has merit. "She basically said, there's a problem out there, but it's not her problem, it's the city's problem," Mr. Alvarez told The Dallas Morning News after the ruling. He adds tenants will now try to get the city to enforce the housing code Previously, Laurence Iliff of The Dallas Morning News reported that the judge ruled to postpone an emergency hearing on a purported class-action lawsuit against Texas Bay Barclay Square Limited Partnership and Bay Equity Real Estate that was filed by residents of a Pleasant Grove apartment complex (Class Action Reporter, July 9, 2009). Judge Slaughter said she was concerned about the tenants and felt the matter was urgent. Nonetheless, she ruled that the defendants had not been given enough notice under the law, and thus she ordered that the hearing be held on the morning of July 8, 2009, according to The Dallas Morning News. Kenneth Chaiken, Esq. A lawyer for the Barclay Square Apartments, told the judge that the air-conditioning system already has been fixed after arguing that the hearing notice was legally faulty in several ways, reports The Dallas Morning News. Barry Carpenter of The 33 News previously reported that Bay Equity Real Estate is facing a purported class-action suit by tenants at the Barclay Square apartments who for several weeks have been without air conditioning (Class Action Reporter, July 7, 2009). The lawsuit was filed by attorney Manny Alvarez, Esq. on July 2, 2009 in downtown Dallas. The class-action suit alleges that for the last 25 days, plaintiff and the other members of the proposed class have been forced to live in substandard, uninhabitable and dangerous conditions at Barclay Square apartments, according to The 33 News report. The Dallas Morning News reports that Marlene Ceja, a resident at Barclay Square, is seeking certification of a class-action suit against the defendants. In a legal filing, she alleges that the complex is violating a Dallas city code that requires landlords to keep their properties at a maximum of 85 degrees, The Dallas Morning News reported. The suit seeks "all available damages" and a drop in the rent, according to The Dallas Morning News. For more details, contact: Alvarez Manny, Esq. 400 S. Zang Blvd # 1000 Dallas, TX Phone: (214) 942-4500 New Securities Fraud Cases SYNOVUS FINANCIAL: Kendall Law Group Announces Ga. Suit Filing -------------------------------------------------------------- Kendall Law Group, led by a former federal judge and U.S. Attorney, today announced that a lawsuit has been filed against Synovus Financial Corporation (NYSE: SNV) for investors who purchased stock that was artificially inflated between January 24, 2008 to January 21, 2009. According to the complaint -- filed in the U.S. District Court for the Northern District of Georgia -- defendants issued false and misleading statements about the company's business and financial results and failed to disclose the extent of its large exposure to Sea Island Company, a resort in Georgia, and the deteriorating condition of Sea Island. The complaint further alleges that the company failed to adequately and timely record losses for its impaired loans, causing its financial results to be false. As a result of defendants' false statements, investors purchased Synovus at inflated prices, reaching a high of $13.49 per share on February 1, 2008. Then, on January 22, 2009, Synovus reported a net loss for the fourth quarter of 2008 of $637 million, or $1.93 per share. The fourth quarter 2008 results included provision expense of $364 million and a $443 million non-cash goodwill impairment charge. On this news, Synovus stock fell to as low as $4.52 before it closed at $4.75 per share on January 22, 2009. A request for lead plaintiff status must satisfy certain criteria and be made on or before Sept. 4, 2009. For more details, contact: Hamilton Lindley, Esq. (hlindley@kendalllawgroup.com) Kendall Law Group Phone: 877-744-3728 Web site: http://www.kendalllawgroup.com Asbestos Alerts ASBESTOS LITIGATION: Conn. Supreme Court Rules on Dinern Action ---------------------------------------------------------------- The Superior Court of Connecticut entered a ruling in an asbestos case, in which it ordered plaintiffs in the William J. Dinern asbestos case to respond to a request to revise the case styled William J. Dinern et al. v. Ad.Smith Corporation et al. Judge Trial Referee David W. Skolnick entered judgment in Case No. BA085018435S on April 3, 2009. Plaintiffs in the present complaint had attempted to alleviate a problem occasioned by the absence of a product containing asbestos, manufactured or sold or supplied by the defendants named in the fifth and sixth counts of said complaint. These defendants were Connecticut Light & Power Company, United Illuminating Company, Pratt and Whitney, Wyeth Holdings as successor to American Cyanamid and Pfizer, Inc. Counts 5 and 6 said that Mr. Dinern worked at premises owned and operated by said defendants and that the air he breathed contained asbestos fibers resulting in his contracting lung cancer. In other words, the plaintiffs asserted a claim of premises liability, not product liability in counts 5 and 6 of their complaint, that is, a case claiming an unsafe work place rather than an unsafe product. Accordingly, the Court ordered the plaintiffs to respond to the request to revise as would be the case in any other premises liability case, said response to include the right to object to any request which Mr. Dinern deemed objectionable. ASBESTOS LITIGATION: Bid to Dismiss Appeal in Cross Case Denied ---------------------------------------------------------------- The Court of Appeals of Ohio, Eighth District, Cuyahoga County, denied Milton B. Cross' motion to dismiss an asbestos appeal filed by American Optical Corporation (AOC). The case is styled Milton B. Cross, et al., Plaintiffs-Appellees v. A-Best Products Co., et al., Defendants. This was an Appeal by American Optical Corporation, Defendant-Appellant. Judges James J. Sweeney, Melody J. Stewart, and Mary Jane Boyle entered judgment in Case No. 90388 on April 27, 2009. AOC appealed the Cuyahoga County Common Pleas Court's denial of its motion to administratively dismiss Mr. Cross' complaint alleging asbestos-related products liability claims. After reviewing the facts of the case and pertinent law, the Appeal Court denied Mr. Cross' motion to dismiss this appeal for lack of a final appealable order, and the Appeal Court remanded this cause to the lower court for the limited purpose of clarification. On Aug. 19, 2000, Mr. Cross sued AOC, a manufacturer of asbestos containing protective clothing, alleging asbestos-related lung injuries. He, who was exposed to various asbestos containing products during his 30-year career as a laborer, developed lung cancer and other lung related conditions. Mr. Cross was also a smoker for 46 years. Medical doctors attributed Mr. Cross' lung conditions to occupational asbestos exposure and tobacco use. On Aug. 10, 2007, AOC filed with the trial court a motion to dismiss Mr. Cross's claim, alleging that he had not established the prima facie medical requirements. Specifically, AOC argued that no competent medical authority had opined that Mr. Cross' exposure to asbestos substantially contributed to his lung problems. Mr. Cross opposed this motion to dismiss. On Sept. 7, 2007, the trial court denied AOC's motion. It is from this order that AOC appealed. ASBESTOS LITIGATION: Mass. Court OKs Remand Bid in Holdren Case ---------------------------------------------------------------- The U.S. District Court, District of Massachusetts, granted plaintiffs' Motion to Remand in the asbestos case styled Franklin D. Holdren, et al., Plaintiffs v. Buffalo Pumps, Inc., et al., Defendants. U.S. District Judge Gertner entered judgment in Civil Action No. 08cv10570-NG in May 4, 2009. Franklin Holdren worked as a boiler technician onboard various Navy ships, and in Navy shipyards, from 1957 to 1979. He inspected and maintained residential and commercial boilers at power plants, paper mills, and other industrial sites. His exposure to asbestos during the course of his employment allegedly caused him to develop malignant mesothelioma. The plaintiffs filed suit in Massachusetts state court, charging that the defendants were responsible for Mr. Holdren's asbestos- related disease. Five defendants sought removal in this case: Buffalo Pumps, Inc.; Foster Wheeler Energy Corp.; Viad Corp.; General Electric Co. (GE); and Elliott Turbo Machinery Co. Each claimed that it was a manufacturer and supplier of equipment used or procured by the U.S. Navy during the period of Mr. Holdren's employment aboard Navy ships. Each further argued that, as a government contractor, it had no authority to add asbestos warnings to the products or accompanying manuals that it supplied to the Navy. As a result, the defendants sought to remove the claims against them to federal court. The District Court lacked subject-matter jurisdiction over the pending action. The plaintiffs' Motion to Remand was granted. Brian P. Barrow, Esq., of Simon, Eddins & Greenstone, LLP in Long Beach, Calif., Christopher P. Duffy, Esq., David W. Fanikos, Esq., Edward P. Coady, Esq., of Coady & Associates in Boston, and Jonathan A. George, Esq., in Simon, Eddins & Greenstone, LLP in Richmond, Va., represented the Plaintiffs. Marianne E. Brown, Esq., David M. Governo, Esq., Bryna Rosen Misiura, Esq., Michael D. Simons, Esq., of Governo Law Firm LLC, Lynda R. Jensen, Esq., Peter C. Netburn, Esq., of Hermes, Netburn, O'Connor & Spearing, April M. Luna, Esq., Katharine S. Perry, Esq., of Adler, Pollock & Sheehan PC, Daniel P. McCarthy, Esq., of Cooley, Manion, & Jones, LLP in Boston, and Mark O. Denehy, Esq., of Adler Pollock & Sheehan PC in Providence, R.I., represented the Defendants. ASBESTOS LITIGATION: Ohio District Court Rules on Lamson Action ---------------------------------------------------------------- The U.S. District Court, Northern District of Ohio, Eastern Division, issued rulings in the case styled Lamson & Sessions Co., et al., Plaintiff v. William D. Mundinger, et al., Defendant. District Judge Christopher A. Boyko entered judgment in Case No. No. 4:08CV1226 on May 1, 2009. This matter came before the Court upon the Court's sua sponte inquiry over the propriety of Jones, Day, Reavis & Pogue's continued representation in this bankruptcy adversary proceeding of The Lamson & Sessions Co. The parties had briefed the issue of whether Jones Day's previous representation of YSD Industries, Inc. ethically precluded Jones Day from representing Lamson in this adversary proceeding, necessitating Jones Day's disqualification. The debtor, YSD, is a closely held corporation whose shareholders at the time of this action were William Mundinger and William Peters. At all relevant times, Mr. Mundinger and Mr. Peters also acted as officers and directors of YSD. YSD was previously a wholly owned subsidiary of Lamson until 1988, when Lamson sold YSD to Mundinger, Peters, and several others. Lamson's usual outside counsel, including matters involving YSD, is the law firm of Jones Day. YSD's usual outside counsel is the law firm of Henderson, Covington, Messenger, Newman & Thomas Co., L.P.A. As part of the sale of YSD to Mr. Mundinger and Mr. Peters, Lamson required YSD to assume liability for various obligations to YSD's employees and retirees, as well as liability for certain asbestos claims. In July 2004, Lamson filed suit in the Cuyahoga County Court of Common Pleas, asserting breach of contract by YSD and fraudulent transfers, breach of contract via alter-ego liability, and unjust enrichment against Mr. Mundinger and Mr. Peters. In June 2005, YSD filed for bankruptcy under Chapter 7 and Lamson's suit was removed to the U.S. Bankruptcy Court for the Northern District of Ohio as an adversary proceeding. The bankruptcy trustee successfully moved to substitute himself for certain of Lamson's claims, but the alter-ego breach of contract and unjust enrichment claims against Mr. Mundinger and Mr. Peters were left as personal claims of Lamson. The adversary proceeding then came before this Court for resolution. Thus, Jones Day was not disqualified and continued to represent Lamson in this matter. ASBESTOS LITIGATION: Gloucestershire Plumber Exposed to Asbestos ---------------------------------------------------------------- An inquest heard that the death of Charles Collier, a 79-year- old plumber from Gloucester, England, who was exposed to asbestos during his work life, was linked to natural causes, this is Gloucestershire.co.uk reports. Coroner Alan Crickmore ruled that although Mr. Collier was exposed to asbestos during his working life, it did not kill him. He recorded a verdict that Mr. Collier died of natural causes on Jan. 31, 2009. After his death, Mr. Collier was found with a high level of asbestos in his lungs, about 312,000 fibers per dry gram of tissue. The court heard that it was clear evidence of asbestos exposure, but it was not the reason he died. During the last days of his life, Mr. Collier suspected he had the asbestos-related cancer, malignant mesothelioma. In fact it was chronic obstructive airways disease and pneumonia which killed him, according to experts. ASBESTOS LITIGATION: Abatement at N.J. Newsprint Plant Completed ---------------------------------------------------------------- The MACK Group, LLC completed an asbestos removal and abatement project for an unnamed former newsprint company in the State of New Jersey, according to a MACK Group press release dated July 3, 2009. The project was a challenge due to the quantity of asbestos containing materials to be abated as well as the aggressive schedule for project completion. The project was completed in two phases: four weeks for the first phase and five weeks for the second phase. This project was completed without incident or injury. The client needed to have the facility abated on a very aggressive schedule. In addition, the project needed to adhere to all Federal, State and Local regulations and laws and also be conducted in a professional manner with strict attention to safety. Asbestos containing materials (ACM) included: 87,000 square feet of VAT and mastic; 23,000 square feet of spray-on fireproofing; 1,000 square feet of transite panels; 500 square feet of roof tar; 150 pipe fittings; 500 square feet of textured ceiling; and 120 linear feet of caulking. All work was performed following all Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency (EPA) regulations as they pertain to asbestos abatement. Mobilization to the site required that several tasks be completed with attention to detail. This included the placement of all required signage on all entrances to the work area, installing connections to electric and water and the building of separation barriers and a decontamination facility. Quality Assurance / Quality Control (QA/QC) inspection was performed by MACK personnel. To remove the asbestos floor tile and mastic, MACK used a combination of proprietary flooring removal machines that they own in their fleet of abatement equipment. The flooring removal machines have zero emissions and fumes allowing for use in restricted ventilation areas. MACK used various techniques to remove the other ACM. Wetting of all ACM and double bagging the ACM using 6 mil thick poly bags with appropriate labeling. Final cleanup of the work area included inspection of the work area to insure all material had been removed, a final wet wipe and HEPA vacuum of all equipment and encapsulation with a lockdown encapsulant. The Mack Group was responsible for all OSHA sampling, recalculation of air pumps, etc. during the course of the work. All ACM waste was disposed in an approved EPA landfill as per regulations, complete with all required documentation and manifests. The MACK Group, LLC, which is based in Cherry Hill, N.J., is a contractor providing services from asbestos removal and abatement to decontamination nationwide as well as Puerto Rico. ASBESTOS LITIGATION: EPA Reaches Deal w/ 4 Md. Schools on Safety ---------------------------------------------------------------- The U.S. Environmental Protection Agency has settled four cases in Maryland in an effort to ensure the safe management of asbestos-containing materials in schools, according to an EPA press release dated July 2, 2009. In separate consent agreements with the EPA, the Key School, Inc., Annapolis, Md.; Trinity Episcopal Church's day school, Glen Arm, Md.; Immanuel Lutheran Church's nursery school, Preston, Md.; and the Hereford United Methodist Church's Two by Two Preschool, Monkton, Md., have settled alleged violations of the Asbestos Hazard Emergency Response Act (AHERA), the federal law requiring schools to inspect and manage asbestos-containing building materials. The AHERA violations the four individual schools were cited for include failing to prepare and submit an asbestos management plan, failing to include all school buildings in the management plan, failure to conduct reinspections of all friable and nonfriable asbestos every three years, and failure to provide annual notification of the management plan to parents, teachers, and employee organizations. EPA did not find that students or other building occupants were exposed to asbestos as a result of the alleged violations. The schools that were cited have now certified their compliance with the AHERA requirements. Under AHERA, EPA may agree to reduce or eliminate penalties due to the schools' cooperation with EPA, compliance activities and expenditures. The four Maryland settlement agreements are: -- Based on a Maryland Department of the Environment inspection, the EPA cited the Key School, Annapolis, Md. for failing to incorporate several buildings in the school's asbestos management plan and failed to maintain records of asbestos training provided to maintenance and custodial staff. The school has spent at least US$5,015 to come into compliance, resulting in a zero cash penalty amount. -- Based on a Maryland Department of the Environment inspection at the Trinity Episcopal Church's Day School, Glen Arm, Md., the EPA cited it for failure to conduct reinspections at least every three years, provide annual notification to parents and staff, include in the management plan information regarding asbestos containing material located at the school, failure to provide required asbestos safety training to maintenance and custodial staff and to ensure that the designated person was trained to carry out the duties. Trinity Episcopal Church has spent at least US$1,500 to comply with AHERA regulations, resulting in a zero cash penalty amount. -- Based on a Maryland Department of the Environment inspection at the Immanuel Lutheran Church's Nursery School, Preston, Md., EPA cited it for failing to prepare and submit an asbestos management plan, failing to reinspect the school building every three years and conduct periodic surveillance at least every six months, failure to provide annual notification to parents and staff, failure to train the designated person and provide asbestos safety training to custodial and maintenance staff. Immanuel Lutheran Church spent at least US$1,345 to comply with AHERA regulations, resulting in a zero cash penalty amount. -- EPA inspected Hereford United Methodist Church's Two by Two Preschool, Monkton, Md., and cited it for failing to prepare and submit an asbestos management plan, failure to conduct a reinspection at least once every three years and conduct periodic surveillance at least every six months, and failure to provide asbestos safety training to custodial and maintenance staff. The school has spent US$7,146 to come into compliance, resulting in a zero cash penalty amount. ASBESTOS LITIGATION: G-I Holdings Reaches Deal on Vermont Sites ---------------------------------------------------------------- The United States and the State of Vermont, on July 2, 2009, say that, as part of a multi-site settlement, G-I Holdings Inc. has agreed to address asbestos contamination caused by its past operation of the largest chrysotile asbestos mine and mill in the country, according to a U.S. Department of Justice press release dated July 2, 2009. The 1,673-acre abandoned mine site in Vermont, known as the Vermont Asbestos Group Mine Site (VAG Site) is the most significant of the contaminated sites covered by the settlement, which includes 12 other industrial sites across the country where G-I may have disposed of hazardous waste. According to a federal complaint filed in New Jersey, the VAG Site has two towering piles of asbestos-containing mine and mill tailings, which are eroding offsite and adversely affecting downstream surface waters and wetlands. In the complaint, the United States alleged that these activities may cause exposure to airborne-asbestos by those who access the site. Under the July 2, 2009 settlement, G-I will take immediate steps at the VAG Site by constructing fencing, gates and road barriers to restrict public access; providing onsite surveillance and securing the mill buildings. G-I will also monitor air emissions from the piles; conduct dust suppression, if necessary, and provide support to the U.S. Environmental Protection Agency and Vermont for future sampling and monitoring. These tasks will take place over eight years, at a cost of up to US$7.75 million. G-I will also reimburse the federal and state governments for past and future cleanup costs at the VAG Site and related off- site contamination. G-I, now in Chapter 11 bankruptcy, will reimburse a portion of the EPA and Vermont's cleanup costs up to 8.6 percent of US$300 million. Finally, G-I will pay US$850,000 for damages to local wetlands and waterways contaminated by the site. As part of the settlement, G-I will also contribute US$104,615 as its share of cleanup costs to resolve federal claims at nine other superfund sites where its predecessors disposed of hazardous waste. In addition, under the decree, the federal government will have up to 10 years to bring claims for cleanup costs and damages to natural resources at three related heavily- contaminated sites in or near Linden, N.J. Under the consent decree, the Linden claims will pass through the bankruptcy and not be discharged, but will eventually be paid at the bankruptcy rate of 8.6 percent on the dollar if G-I is found liable for the contamination. John C. Cruden, Acting Assistant Attorney General for the Justice Department's Environment and Natural Resources Division, said, "The cornerstone of this settlement is that G-I is responsible for completing extensive work at the Vermont Asbestos Group Mine Site, focusing on site security, air monitoring and investigating and sampling certain mine tailings. G-I will also pay for its share of cleanup costs for this Site and nine other contaminated sites around the country." The consent decree, lodged in the U.S. Bankruptcy Court for the District of New Jersey, is subject to a 30-day public comment period and approval by the federal court. ASBESTOS LITIGATION: Board OKs Ruling in General Electric Claim ---------------------------------------------------------------- A New York Workers' Compensation Board panel affirmed a workers' compensation law judge's decision disallowing an unnamed widow's claim that the development of her husband's lung cancer, and his subsequent death, were causally related to his exposure to asbestos at work. The case is styled General Electric Co., 109 NYWCLR 76 (N.Y. W.C.B. Panel 2009). The widow's claim that the development of her husband's lung cancer, and his subsequent death, were causally related to his exposure to asbestos at work was denied. The decedent reported to his treating oncologist that he was exposed to asbestos while working as a welder and that he smoked two packs of cigarettes a day for 45 years. He worked for the employer for almost 40 years. The oncologist testified that he had no evidence that the decedent's lung cancer was caused by asbestos. The widow's medical expert stated that the decedent's exposure to asbestos played a significant part in his development of lung cancer. However, the medical expert conceded that the decedent's smoking history, "without anything else," was sufficient to cause his lung cancer. The carrier's medical specialist indicated that because the decedent showed no signs of asbestosis, his development of lung cancer was unlikely to be related to his employment. Upon reviewing the record and considering the testimony and evidence, the panel found sufficient evidence supporting the WCLJ's decision. ASBESTOS LITIGATION: Cleanup Underway at King Chevrolet Facility ---------------------------------------------------------------- Asbestos abatement is underway at the former King Chevrolet car dealership in Tyler, Tex., in which the site was bought by the City in 2008, the Tyler Morning Telegraph reports. Susan Guthrie, communications director for the City, said getting rid of the asbestos is required before the city does anything to the building, such as selling or demolishing it. On May 27, 2009, the City Council awarded a contract to Air Quality Associates for US$46,775 to remove the asbestos prior to the demolition of the "Tyler Downtown Development west properties." No specific plans have been made about what will be done with the property, but there is a possibility it could be developed into a "second square" for the city. Ms. Guthrie said a decision has not been made on how the property will be used. The Tyler 21 plan lists it as a possibility for a "second square" in downtown, with a mixed use of mostly commercial and residential buildings and with the potential for some city use. In July 2008, City Council members announced their plans to purchase the former King Chevrolet and White's Ford dealerships and redevelop the land. The council approved the purchase of roughly 8.65 acres of land, where the old car dealerships sit empty along Erwin Street, just south of City Hall, for US$1.67 million. The land purchases were reportedly paid for out of the City's Oil and Gas Fund. ASBESTOS LITIGATION: Sampson Widow to Launch Compensation Claim ---------------------------------------------------------------- Alan Sampson's widow, Dorothy Sampson, is tracing the whereabouts of her husband's former work colleagues, in preparation for her asbestos compensation claim against the insurers of Mr. Sampson's Birmingham, England-based former employers, the Birmingham Mail reports. Mr. Sampson was 66 years old when he died in January 2008 from mesothelioma. Birmingham coroner Aidan Cotter ruled Mr. Sampson's death was due to Industrial Disease at an inquest. Mr. Sampson is thought to have been exposed to asbestos dust while working for several local companies, including Metro Cammell Carriage and Wagon, a firm known to have used asbestos during the manufacture of bus and train coaches. Mr. Sampson worked at the firm's Elmdon site in Marston Green from 1957 to 1958 but moved on to Jackson Brick Works, in Stonebridge from 1959 to 1960. He was expected to regularly sweep out the brick drying room which was lined with asbestos sheeting. Family solicitors at Irwin Mitchell law firm also believe Mr. Sampson was exposed to asbestos in the early to mid 1960s during his employment with Walker Homes as a site laborer. Iain Shoolbred, a workplace illness expert with Irwin Mitchell, said, "We are appealing for Alan's former colleagues from Metro Cammell, Elmdon, Jackson Brickworks and Walker Homes to come forward to provide us with information." The companies no longer trade but solicitors will file proceedings against the companies' insurers. ASBESTOS LITIGATION: Texas Court Seeks Reasons for DuPont Trial ---------------------------------------------------------------- The Texas Supreme Court ordered Jefferson County Judge Donald Floyd to give reasons behind his ruling to grant Willis Whisnant, Jr. a new asbestos-related wrongful death trial against E. I. du Pont de Nemours and Company, The Southeast Texas Record report. In a 2008 trial, jurors found DuPont was not responsible for the wrongful death from mesothelioma of former employee Mr. Whisnant. Shortly after the verdict, Judge Floyd granted Mr. Whisnant's motion for a new trial but offered no explanation for the basis of his decision. In a 4-3 decision issued on July 3, 2009, justices granted conditional mandamus relief directing the trial court to set out its reasons for disregarding the jury's verdict. Justice Phil Johnson wrote, "Accordingly, we deny, without prejudice, any relief beyond directing the trial court to specify its reasons for granting the new trial." He was joined by Justices Nathan Hecht, Dale Wainwright, Scott Brister, and Don Willett. Justice Harriet O'Neill filed a dissenting opinion in which Chief Justice Wallace Jefferson and Justices David Medina and Paul Green joined. In March 2008, after a six week trial in Judge Floyd's 172nd District Court, jurors found in favor of DuPont. Mr. Whisnant developed mesothelioma and died because of his exposure to asbestos at DuPont's Sabine River Works. Jefferson County jurors found no negligence on the part of the chemical company and awarded nothing to Mr. Whisnant's family. Shortly after the trial concluded however, Mr. Whisnant's attorney Glen Morgan, Esq., of Beaumont's Reaud Morgan & Quinn law firm, contended that the jury verdict was completely contradictory to the preponderance of the evidence. Judge Floyd set aside the jury verdict and granted Morgan's motion for a new trial on May 28, 2009. DuPont's attorneys appealed Judge Floyd's decision, and on July 24, 2008, the Texas Ninth District Court of Appeals denied the Company's writ of mandamus. DuPont filed a petition for writ of mandamus in Texas' Supreme Court. The Company's brief to the court states, "Requiring trial judges to state a reason for a new trial is the only way to satisfy this Court's 139-year-old admonition that new trials cannot be granted on the arbitrary will and pleasure of the judge presiding." ASBESTOS LITIGATION: Halifax to Check 12 Buildings for Asbestos ---------------------------------------------------------------- The Halifax Regional Municipality in Nova Scotia, Canada, is seeking for an outside expert to check for asbestos in 12 City- owned buildings, including Halifax city hall, The Chronicle Herald reports. Aside from the city hall, samples will be collected from public places like the Halifax regional school board building in Dartmouth and Metro Transit's ferry terminal on the Halifax waterfront. Other buildings listed in the recent tender call include local fire stations, city works depots, and the Metro Transit property in the Burnside park in Dartmouth. On July 4, 2009, Mayor Peter Kelly said he was not familiar with the asbestos project. Councilor Linda Mosher (Purcells Cove- Armdale) and Councilor Jim Smith (Albro Lake-Harbourview) told The Chronicle Herald they had not heard about it either. The three politicians said regional council does not review every tender issued by municipal staff. Mr. Smith's Dartmouth-area district includes the Metro Transit bus depot in Burnside. He said he was unaware of any asbestos issues there, but acknowledged the school board's building in downtown Dartmouth had been identified as a potential problem site. That building was home to Dartmouth city hall for many years before municipal amalgamation. The tender says the successful bidder must provide a floor plan identifying the location of asbestos-containing materials and recommend an action plan regarding the potential removal and disposal of the material. The successful bidder must also give city staff its plan for collecting the samples and a schedule for starting and finishing the project. ASBESTOS LITIGATION: Harlem Valley Site Set for Hazard Abatement ---------------------------------------------------------------- The Dover Knolls developers are planning to remove asbestos from the abandoned Harlem Valley Psychiatric Center (HVPC), located near Poughkeepsie, N.Y., in the community of Wingdale, Mesothelioma.com reports. Officials hope that thousands of new jobs can be restored to the community, once the buildings have been properly cleaned up and renovated. The HVPC closed more than 15 years ago. According to officials, if the facility reopens, an estimated 3,400 construction jobs will be created during the 10-year build-out of the site. The site itself will provide 1,120 permanent jobs. Private investors at Dover Knolls Development are prepared to commit US$600 million to the project's redevelopment. ASBESTOS LITIGATION: Gov't. to Pay JPY77Mil for Taima's Exposure ---------------------------------------------------------------- The Yokohama District Court, on July 6, 2009, ordered the Japanese Government to pay JPY77 million to the family of Hitoshi Taima for his exposure to asbestos while working at a U.S. naval base in Yokusoka, Kanagawa Prefecture, The Japan Times reports. Judge Haruhiko Sakae of the Yokosuka branch of the district court ruled the government and the U.S. military neglected to take necessary safety measures, like having workers wear protective masks. Judge Sakae also said the government was aware of instances of asbestos-related health hazards before Mr. Taima began working at the base in 1977. Mr. Taima's widow, Mieko, said, "I hope the government and the U.S. military implement preventive measures so that no other workers will fall victim to asbestos-related diseases after being exposed to asbestos at work." According to the court, Mr. Taima was exposed to asbestos in insulation filling while fixing and setting up air conditioners as an engineer at the base between 1977 and 1995. The suit had demanded JPY94 million in compensation from the government, which was his employer for the U.S. base work. In April 2006, Mr. Taima was diagnosed with mesothelioma and died in May 2007 at the age of 51. Before passing away, he filed the lawsuit against the government based on the U.S. Navy's decision in March 2007 that recognized his case as illness and injury suffered in the course of carrying out one's job duties, according to his family. Mr. Taima's family succeeded him as plaintiff after his death. ASBESTOS LITIGATION: Inquest Rules on Ex-Celanese Worker's Death ---------------------------------------------------------------- An inquest at Derby and South Derbyshire Coroner's Court heard that the death of Ronald Hewkin, a former British Celanese process worker, was linked to exposure to asbestos, the Derby Telegraph reports. Mr. Hewkin was employed at the Spondon, England, powder-making plant for 20 years, until he retired in 1998. In January 2005, he was diagnosed with malignant mesothelioma. He was given a maximum of nine months to live but amazed his family by fighting the disease for another four years. Assistant deputy coroner Paul McCandless said he was satisfied that Mr. Hewkin had been exposed to asbestos and recorded a verdict of death by industrial disease. The hearing marked the end of nearly five years of uncertainty for Mr. Hewkin's family. His wife Sylvia said the diagnosis in 2005 had come as a complete shock. Mr. Hewkin began working as a joiner, which he had done before entering the Royal Air Force, for Rawsons builders, before joining British Celanese, now Courtaulds, as a process worker in 1978. Mrs. Hewkin said, "When he was told he had nine months it really changed him. He had always been very active and always doing DIY jobs around the house but after the operation he couldn't do as much, which frustrated him." Mr. Hewkin died on March 14, 2009. ASBESTOS LITIGATION: Arguments in Morin Case Presented in Mass. ---------------------------------------------------------------- Prosecution and defense lawyers presented arguments in Hampden Superior Court on the whether an asbestos indictment against Paul A. Morin should be dismissed, The Republican Newsroom reports. Judge C. Jeffrey Kinder took the request under advisement. According to a prosecutor, when construction workers at the Soldiers' Home in Holyoke, Mass., took concerns about asbestos contamination, Mr. Morin told them he did not care and the work should proceed. Mr. Morin was indicted because of that action. He was a one-time national commander of the American Legion. On July 6, 2009, assistant State Attorney General Andrew A. Rainer said that Mr. Morin was indicted on a criminal charge for violation of the Clean Air Act. Mr. Morin's attorney David P. Hoose, Esq., contends there was no probable cause for the indictment since there was no evidence that Mr. Morin, either by his actions or a failure to act, caused any air pollution. Mr. Hoose said Mr. Morin had instructed the workers not to touch the pipes which were wrapped in asbestos and located behind a wall they were to demolish. However, Mr. Rainer presented a different set of circumstances. He told Judge Kinder that by ordering workers to take down part of a wall between two bathrooms, Mr. Morin had violated the law even though the wall itself contained no asbestos. The two bathrooms were being made into a single, handicapped-accessible bathroom, according to the lawyers. Mr. Rainer said the two workers who were ordered to take the wall down were concerned about asbestos, and two middle-level workers who were asked to order the demolition continue refused to do so because they, too, were concerned. Mr. Morin remains on paid administrative leave from his US$114,345-a-year post pending his prosecution. ASBESTOS LITIGATION: British Safety Council Seeks Asbestos Audit ---------------------------------------------------------------- Brian Nimick, the chief executive of the British Safety Council, says that an asbestos audit should lead to the register and eventual removal of asbestos, BBC News reports. The BSC says that 16 teachers die on average each year from asbestos-related disease and an urgent audit must be carried out. The National Union of Teachers said it wholeheartedly welcomed the BSC's call for better asbestos management. Mr. Nimick told a conference on corporate responsibility there had been 228 asbestos-related deaths among teachers in the United Kingdom over the last 14 years. Mr. Nimick said, "It is unacceptable that the U.K., in 2009, has not yet undertaken a national audit of asbestos in schools has not comprehensively assessed the risks that teachers and pupils in each and every school face; and has not allocated appropriate resources to take urgent remedial action." Christine Blower, General Secretary of the National Union of Teachers, said she supported the call for a register, and had taken this up with Prime Minister Gordon Brown early in 2009. She said there was evidence that asbestos had caused the deaths of 92 teachers and lecturers between 2001 and 2005. Several teaching unions have called for all asbestos to be removed from schools under the Building Schools for the Future Programme, a project to refurbish all secondary schools in England. The government said it was heeding expert advice from the Health and Safety Executive that it was safer to leave asbestos undisturbed, or remove it where it was likely to become so. A spokesperson for the Department for Children, Schools and Families said the HSE was checking that local authorities were keeping their obligations to manage asbestos. ASBESTOS LITIGATION: Local NSW Council Knew About Koori Hazards ---------------------------------------------------------------- The New South Wales Opposition says that documents indicate NSW State departments and a Koori local council knew about asbestos at a Koori village, ABC News reports. Several State Government departments were ordered to produce all documents relating to the asbestos problem at Wallaga Lake, near Bermagui, New South Wales. The community is surrounded by asbestos that was scattered when older housing commission buildings were knocked down. Certain of the community's 150 residents were paid under the Work for the Dole program to demolish the old homes but were not told of the health risks. A Health Department investigation has found the asbestos will not harm the local residents but some federal and state politicians are not convinced. Catherine Cusack, the NSW Opposition's climate change spokeswoman, says the boxes of documents handed over show the Eurobodalla Shire Council knew about the asbestos in 2003. Ms. Cusack says documents from the Aboriginal Affairs Department show the council was involved in dumping the material and has a serious case to answer. She said, "For them to be involved in the movement of asbestos actually now makes them potential perpetrators and targets of an investigation." Ms. Cusack says the papers reveal NSW Aboriginal Affairs Minister Paul Lynch was told in 2008, while meeting minutes confirm the Aboriginal Affairs and Environment and Climate Change departments knew about the problem in November 2007. Ms. Cusack says WorkCover was also at the November 2007 meeting and all departments were briefed about the asbestos in detail. ASBESTOS LITIGATION: Hazard Found at Ramsgate High-Rise Building ---------------------------------------------------------------- Astra UK (Contracts) Ltd removed asbestos-contaminated tiles from a living room and hallway at the high-rise Kennedy House in Ramsgate, Kent, England, this is kent.co.uk reports. Lynne Munday, a 52-year-old resident of the Kennedy House who suffers from lung cancer, complained to Thanet council about her uneven floor after tiles broke when she tried to vacuum her carpet. Astra boss Gary Lawson, said, "By looking at the tiles it is impossible to know the exact asbestos content unless the tile has been sampled. We do five or six of these jobs a week and we've never detected anything that is very serious from vinyl tiles. In my opinion if there was a risk they would removed." Branch manager for Mears, Miles Cronin, said, "We think there is about 1.5 per cent asbestos content in these tiles and it's in the adhesive, too. We are talking about tiles that have been there for years and there is a danger when properties disturb these tiles, but it is a small risk." A representative from the Asbestos Removal Contractors Association, said, "The content of asbestos in these tiles is irrelevant because it's bound in a plastic matrix and it's very difficult to get them out." A spokesman for Thanet council said, "There is no risk to tenants from these tiles. Under the terms of their tenancy agreement, tenants require written permission from the council to carry out alterations and this includes removing any tiles. If a tenant wishes to undertake such work, they must contact the council first. "The council would like to reassure tenants that, even if the tiles are cracked, the danger to exposure is minimal. This is because if it breaks, it will not release fibers." ASBESTOS LITIGATION: Hazard Illegally Disposed at Annagortha Bog ---------------------------------------------------------------- Asbestos was dumped at Annagortha Bog in Ireland and has prompted concern among local residents, The Westmeath Independent reports. Fianna Fail Councilor Frankie Keena warned people about the illegal dumping of asbestos in Annagortha Bog, branding it as an absolute disgrace. He said, "The person who carried out this deed has no regard for the environment and more importantly for human health. For someone to do this is like pointing a loaded gun at a person and pulling the trigger." Councilor Keena explained that there are strict procedures to follow for the proper disposal of asbestos. He has reported this incident to the Council, the Health and Safety Executive and Gardai as there is an urgent need to remove it. Councilor Keena concluded, "Finally I urge the public to contact me if they witnessed anybody carrying out this act or depositing any other type of material in our bogs and ditches." ASBESTOS LITIGATION: Court Issues Split Ruling in Powers Lawsuit ---------------------------------------------------------------- The U.S. Court of Appeals for Veterans Claims issued split rulings in a case involving asbestos styled Edward R. Powers, Appellant v. Eric K. Shinseki, Secretary of Veterans Affairs, Appellee. Judge Robert N. Davis entered judgment in Case No. 05-0240 on May 1, 2009. Edward R. Powers appealed through counsel from an Oct. 5, 2004 Board of Veterans' Appeals decision that denied his claim of entitlement to service connection for: -- A respiratory disorder, allegedly resulting from exposure to asbestos; -- Type II diabetes mellitus, with secondary vision problems, based on alleged exposure to herbicides; and -- Hypertension, a digestive disorder, memory and concentration problems, a nerve disorder and muscle and joint pain, all based on alleged exposure to lead-based paint. On July 25, 2007, the Appeals Court issued a single-judge memorandum decision affirming the February 2005 Board decision with respect to the asbestosis claim, reversing its determination with respect to the herbicide claim, and setting aside and remanding with respect to the lead-based paint claims. Eric K. Shinseki, the Secretary of Veterans Affairs, appealed to the U.S. Court of Appeals for the Federal Circuit, contesting that part of the Court's decision pertained to the herbicide claim. On March 27, 2009, the Federal Circuit vacated this Court's decision and remanded for further proceedings. Mr. Powers appealed. Mr. Powers served in the U.S. Navy from April 1969 to January 1971, including service aboard the U.S.S. Kearsarge from June 1969 to June 1970 in waters off the Republic of Vietnam. He received the Vietnam Service Medal with one bronze star. In the decision here on appeal, the Board denied all of Mr. Powers' claims. The Board found that the preponderance of the evidence was against Mr. Powers' asbestosis claim. The Court affirmed the Oct. 5, 2004, Board decision with respect to the asbestosis and herbicide claims and set aside and remanded the Board's decision on the lead-based-paint claims. ASBESTOS LITIGATION: Court Junks Garlock Motions in Moeller Case ---------------------------------------------------------------- The U.S. District Court, Western District of Kentucky, at Louisville, denied Garlock Sealing Technologies, LLC's motion for summary judgment and motion for a new trial in an asbestos case filed by Olwen Moeller. The case is styled Olwen Moeller, Plaintiff v. Garlock Sealing Technologies, LLC, Defendant. District Judge John G. Heyburn II entered judgment in Civil Action No. 3:07-CV-00065-H on May 1, 2009. Garlock made asbestos containing gaskets. Mrs. Moeller sued on behalf of herself and her deceased husband for his injuries related to asbestos exposure from Garlock's gaskets. The case was tried before a jury as a product liability claim based on strict liability and negligence causes of action. Garlock moved for judgment as a matter of law or, in the alternative, for a new trial. The District Court denied Garlock's motion for judgment as a matter of law. The District Court also denied Garlock's motion for a new trial. Eric J. Jacobi, Esq., William R. Kenealy, Esq., of Kenealy & Jacobi, PLLC, Joseph D. Satterley, Esq., John Robert Shelton, Esq., of Sales, Tillman, Wallbaum, Catlett & Satterley, PLLC in Louisville, Ky., represented Mrs. Moeller. Berlin Tsai, Esq., Ilam E. Smith, Esq., John K. Gordinier, Esq., of Pedley & Gordinier, PLLC, in Louisville, Ky., Cary I. Schachter, Esq., Raymond P. Harris, Jr., Esq., of Schachter Harris LLP in Dallas, represented Garlock. ASBESTOS LITIGATION: Court Issues Split Ruling in Tatera Lawsuit ---------------------------------------------------------------- The Court of Appeals of Wisconsin issued split rulings in an asbestos case filed by Walter Tatera and Vicki Tatera against FMC Corporation and other defendants. The matter was remanded for further proceedings. The case is styled Walter Tatera, deceased, and Vicki Tatera, individually and as Special Administrator of the Estate of Walter Tatera, Plaintiffs-Appellants v. FMC Corporation, Defendant-Respondent, United Healthcare and American Medical Security, Subrogated Defendants, Kelsey-Hayes Company p/k/a K H Corporation, Defendant. Judges Patricia S. Curley, Joan F. Kessler, and Kitty K. Brennan entered judgment in Case No. 2008AP170 on May 12, 2009. Mrs. Tatera, individually and as Special Administrator of the Estate of Mr. Tatera, appealed from a judgment entered after the Circuit Court for Milwaukee County granted summary judgment to FMC Corporation in this product liability case. The trial court dismissed the case on the basis that Mrs. Tatera had not presented a prima facie case for either a strict liability or a negligence claim. She contended that the trial court erred in dismissing the case at the summary judgment stage. The Appeal Court agreed with the trial court that Mrs. Tatera has not presented a prima facie case for strict liability and affirm on that claim. However, the Appeal Court concluded that Mrs. Tatera had presented a prima facie case for negligence and genuine issues of material fact exist. Thus, summary judgment should not have been granted on that claim. The Appeal Court affirmed the judgment as to strict liability but reversed and remanded for further proceedings on the negligence claim. This case arose from the death of Mr. Tatera, who died from malignant mesothelioma on Sept. 20, 2004. Mrs. Tatera attributed the malignant mesothelioma to Mr. Tatera's exposure to asbestos during the time he worked at B & M Machine, which was a machine shop owned by Mr. Tatera's father. He was employed at B & M Machine in 1963, 1964 and 1967-1993. ASBESTOS LITIGATION: Appeal Court Upholds Ruling in Rando Action ---------------------------------------------------------------- The Court of Appeal of Louisiana, First Circuit, upheld the ruling of the Nineteenth Judicial District Court, In and for the Parish of East Baton Rouge, La., which dismissed Murphy Oil, USA, Inc.'s cross-claim for contractual defense and indemnification. The case is styled Ray F. Rando v. Anco Insulations, Inc., et al. Judges Randolph H. Parro, Page McClendon, and Jewel E. "Duke" Welch entered judgment in Case No. 2008 CA 1981 on May 8, 2009. Murphy appealed a summary judgment entered in favor of Lou-Con, Inc., dismissing Murphy's cross-claim for contractual defense and indemnification. On Nov. 22, 2005, Ray Rando, who contracted mesothelioma as a result of asbestos exposure, filed a lawsuit against a host of defendants, including his former employers, various premises owners where Mr. Rando was allegedly exposed to asbestos, as well as companies that designed, manufactured, sold, and installed asbestos-containing products. Lou-Con, Mr. Rando's employer, and Murphy, the owner of a refinery in Meraux, La., where Mr. Rando allegedly was exposed to asbestos while working for Lou-Con, were named as defendants in the lawsuit. In the petition, Mr. Rando asserted that premises owner Murphy was strictly liable as the owner of an unreasonably dangerous facility and was negligent for failing to provide him with a safe place to work. Mr. Rando further alleged that Lou-Con was negligent for failing to provide him with a safe workplace. On Nov. 8, 2006, Murphy filed a cross-claim against Lou-Con demanding full indemnity and defense costs incurred by Murphy in the Rando litigation under delictual and contractual theories of indemnification. Murphy averred that Mr. Rando testified that he worked for Lou-Con at the Meraux refinery in the early 1970s. Although unable to produce an actual contract containing a defense and indemnity provision that had been executed between Murphy and Lou-Con during the early 1970s, Murphy asserted that it would prove through secondary evidence the existence of contracts during the pertinent time frame in which Lou-Con agreed to indemnify Murphy against all bodily injury claims arising out of or in connection to the performance of the work contemplated by the parties' contractual arrangement. Murphy settled with Mr. Rando and was dismissed from the litigation on May 4, 2007, but reserved all rights in connection with its cross-claim against Lou-Con. Lou-Con answered the cross-claim, denying that it executed any contract containing an indemnity provision that would have been in effect for the period of Mr. Rando's alleged exposure at the Meraux refinery. Lou-Con filed a motion for summary judgment. On Dec. 6, 2007, Lou-Con and its principals were dismissed from the Rando litigation. The trial court held that indemnity agreements could not be proven by secondary evidence and granted summary judgment in favor of Lou-Con because Murphy failed to produce a written contract during the relevant time period containing an indemnity provision. Murphy appealed. J. Burton LeBlanc, IV, Esq., Cameron R. Waddell, Esq., Jena L. Duncan, Esq., and Jodi E. Anderman, Esq., of Baton Rouge, La., represented Ray F. Rando. James M. Garner, Esq., Chritopher T. Chocheles, Esq., in New Orleans, represented Murphy Oil, USA, Inc. Paula M. Wellons, Esq., Desiree W. Adams, Esq., in New Orleans, represented Lou-Con, Inc. ASBESTOS LITIGATION: Appeal Court Flips Ruling in Lennar Lawsuit ---------------------------------------------------------------- The Court of Appeal, First District, Division 4, California, reversed the ruling of the Superior Court of the City and County of San Francisco, which entered judgment in favor of respondents in the case styled Center for Self-Improvement and Community Development, Plaintiff and Appellant v. Lennar Corporation et al., Defendants and Respondents. Judges Timothy A. Reardon, Ignazio J. Ruvolo, and Maria P. Rivera entered judgment in Case No. A121982 on May 20, 2009. On Aug. 2, 2007, the Center for Self-Improvement and Community Development sued respondent developers (Lennar Corporation; Lennar Homes of California, Inc.; Lennar Communities, Inc.; Lennar-BVHP, LLC; Lennar Associates Management, LLC [collectively, Lennar]; and Gordon N. Ball, Inc.) on allegations of generating asbestos dust during their construction activities in the Bayview Hunters Point community. Respondents answered the complaint, and nearly two months later moved for judgment on the pleadings. The motion asserted that the Center was a suspended corporation at the time it served the 60-day notice, the 60-day notice was thus "defective as a matter of law," and therefore the court lacked subject matter jurisdiction. Ruling for respondents, the trial court reasoned that compliance with the 60-day notice requirement was jurisdictional and strictly construed, and the Center's suspended corporate status when serving the notice was a defense that could not be obviated by revival of that status. This appeal followed. Resolution of this appeal involves the interplay of the 60-day notice statute governing Proposition 65 citizen enforcement, and the corporate suspension and revivor statutes. The Appeal Court concluded that respondents' challenge to the complaint did not raise a noncurable affirmative defense. Rather, invocation of the Center's lack of capacity was a mere plea in abatement. Having attained reinstatement prior to judgment, the Center regained its capacity to proceed with prosecution of the pending litigation. Accordingly, the Appeal Court reversed the judgment. Lozeau Drury, Esq., Michael R. Lozeau, Esq., Richard T. Drury, Esq., Suma Peesapati, Esq., the Law Offices of Andrew L. Packard, Andrew L. Packard, Esq., Michael P. Lynes, Esq., represented the Center for Self-Improvement and Community Development. O'Melveny & Myers, Debra S. Belaga, Esq., Peter Obstler, Esq., Marjory A. Gentry, Esq., represented Lennar Corporation; Lennar Homes of California, Inc.; Lennar Communities, Inc.; Lennar- BVHP, LLC; and Lennar Associates Management, LLC. Wendel, Rosen, Black & Dean, Daniel Rapaport, Esq., Thiele R. Dunaway, Esq., represented Gordon N. Ball, Inc. ASBESTOS LITIGATION: Texas Court Affirms Dismissal of Tipps Case ---------------------------------------------------------------- The U.S. Court of Appeals, Fifth Circuit, affirmed the ruling of the U.S. District Court for the Southern District of Texas, which dismissed Texas prisoner Frederick Lee Tipps' claims, including asbestos-related, on his conditions at the Galveston County Jail (GCJ). The case is styled Frederick Lee Tipps, Plaintiff-Appellant v. Gean Leonard, Sheriff, Defendant-Appellee. Circuit Judges Carolyn Dineen King, James L. Dennis, and Priscilla Richman Owen entered judgment in Case No. 08-40584 on May 15, 2009. Mr. Tipps appealed the dismissal of his complaint as frivolous and for failure to state a claim on which relief can be granted. He alleged that he was possibly exposed to asbestos, lead paint, and mold while detained at the GCJ. He claimed that Sheriff Gean Leonard was deliberately indifferent to a serious risk of harm based on the alleged existence of these harmful materials. Mr. Tipps contended that Lieutenant Carnley knew about prisoners' complaints regarding conditions at the GCJ and should have informed Sherriff Leonard. The district court's dismissal of Mr. Tipps' action counted as a strike. Mr. Tipps was hereby warned that if he accumulates three strikes, he may not thereafter proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. Frederick Lee Tipps, Texas Department of Criminal Justice, Institutional Division, Eastham Unit, Lovelady, Tex., represented himself. ASBESTOS LITIGATION: Split Ruling Issues in Employers Ins. Case ---------------------------------------------------------------- The Court of Appeal, Second District, California, issued split rulings in the case styled Employers Insurance Company of Wausau, Plaintiff and Respondent v. Pacific Employers Insurance Company, Defendant and Appellant. Judges Sandy R. Kriegler, Richard M. Mosk, and Paul Turner entered judgment in Case No. B204712 on May 18, 2009. Judge Mosk filed a dissenting opinion. This was appeal from a judgment of the Superior Court of Los Angeles County. This was an action by an insurer for equitable contribution from a coinsurer in the defense of asbestos exposure bodily injury claims against the insured. Pacific Employers Insurance Company appealed from a judgment in favor of Employers Insurance Company of Wausau. Defendant asked the Appeal Court to recognize a rule that would permit it to avoid its share of the defense burden by separately settling with the insured. The Appeal Court declined. The Appeal Court affirmed a summary adjudication order, which resolved equitable duties but reversed the summary judgment, which resolved damage questions. Plaintiff and defendant both at times provided primary comprehensive general liability insurance coverage to The Scotts Company either directly or through its parent corporation. Plaintiff insured Scotts for five consecutive years from Oct. 1, 1968 to Dec. 31, 1973. In December 2000, defendant and Scotts entered into a settlement agreement and release of claims. Scotts was subsequently named as a defendant in more than 200 lawsuits alleging bodily injury caused by asbestos exposure. Those lawsuits generally did not allege specific dates of exposure. On Feb. 13, 2003, Scotts filed a coverage action against plaintiff. On July 14, 2005, plaintiff filed a cross- complaint seeking contribution from defendant. On or about Feb. 24, 2006, plaintiff entered into a settlement with Scotts. Plaintiff agreed to pay certain of Scotts's defense and indemnity costs. Following its settlement with Scotts, plaintiff moved for a summary adjudication that defendant had an equitable duty to contribute to the Scotts litigation defense and indemnity costs. Plaintiff subsequently sought a summary judgment as to the dollar amount of defendant's contribution. On October 17, 2007, the trial court entered summary judgment requiring defendant to pay: US$10,277,735.70 in past defense costs, US$458,633.76 in prejudgment interest, and 87.4 percent of all future defense costs plus prejudgment interest at a rate of seven percent. This appeal followed. Berman & Aiwasian, Deborah A. Aiwasian, Esq., and Bruce N. Telles, Esq., represented Pacific Employers Insurance Company. Dorsey & Whitney, Steven D. Allison, Esq., and Robert E. Cattanach, Esq., represented Employers Insurance Company of Wausau. ASBESTOS LITIGATION: Movants' Bid Denied in Burns and Roe Action ---------------------------------------------------------------- The U.S. District Court, District of New Jersey, denied motions filed by Fireman's Fund Insurance Company (FFIC) and The American Insurance Company in the case styled In re Burns and Roe Enterprises, Inc. et al., Debtors. Chief Judge Garrett E. Brown Jr. entered judgment in Civil Action No. 08-4191 (GEB) on May 15, 2009. This matter came before the Court upon the Motion of Fireman's Fund Insurance Company (FFIC) and The American Insurance Company (collectively, the "Movants") for entry of an Order modifying and clarifying the Court's February 2009 Confirmation Order under. The Court denied the Movants' motion. On Dec. 4, 2000 (Petition Date), Burns and Roe Enterprises, Inc. (BREI) filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code. Burns and Roe Construction Group, Inc., (BRCGI) filed a voluntary Chapter 11 petition on Oct. 12, 2005. The cases were administratively consolidated by Order of the U.S. Bankruptcy Court for the District of New Jersey (Bankruptcy Court) dated Nov. 7, 2005. Before the bankruptcy filings, there were more than 12,000 asbestos-related personal injury actions filed against Debtors. On the Petition Date, BREI filed an Adversary Proceeding in its Chapter 11 case against its primary, umbrella and excess insurance carriers, as well as carriers that had issued certain wrap-up policies. The Adversary Proceeding, Burns & Roe Enterprises, Inc. v. Continental Casualty Co. et al, 00- 3755(RG), sought a declaration of BREI's rights to insurance coverage for asbestos claims. On December 20, 2000, the Office of the U.S. Trustee appointed an Official Committee of Unsecured Creditors (Committee), which is compromised of Asbestos Personal Injury Claimants. On March 19, 2002, the Bankruptcy Court entered an Order appointing Anthony R. Calascibetta as the Legal Representative of Future Asbestos Claimants in the BREI Chapter 11 case. On Nov. 7, 2005, the Bankruptcy Court entered an Order appointing Mr. Calascibetta as the Legal Representative in the BRCGI case. Debtors filed their Fourth Amended Plan of Reorganization (Plan) on June 9, 2008. By Order dated Sept. 15, 2008, this Court withdrew the reference in these cases with respect to the Confirmation Hearing. The American Insurance Company issued a primary, wrap-up insurance policy in connection with an electric generating plant known as the Cross Generating Power Station located in South Carolina (Cross Station). FFIC issued three excess, wrap up insurance policies in connection with the Cross Station. FFIC filed certain objections to confirmation of the Debtors' Fourth Amended Plan. A confirmation hearing was held on Nov. 13, 2008. Following the Confirmation Hearing, by letter dated Feb. 4, 2009, Debtors proposed a modification to the Plan. On Feb. 23, 2009, this Court entered the Confirmation Opinion and Confirmation Order, confirming the Debtors' Fourth Amended Plan. On March 5, 2009, Movants timely filed the instant Motion for Modification and/or Clarification of the Confirmation Order. ASBESTOS LITIGATION: Calif. Apartments Evacuated Due to Hazards ---------------------------------------------------------------- Residents of the Americana apartment complex in Mountain View, Calif., were asked to move out of their apartments due to the presence of asbestos, Mesothelioma.com reports. They were asked to evacuate in order to keep asbestos dust from coating their belongings during work on the roof of the complex. Prometheus Real Estate Group plans to install new roofs on five of the Americana's 22 apartment buildings over the course of the summer. Each building's roof project will take three weeks to complete. The buildings were built during the 1970s, and have fire- retardant "popcorn" ceilings which contain asbestos. The asbestos had begun to come loose from the popcorn ceilings during previous work on the roofs conducted in 2007. Work on the first building in the Americana apartment complex was scheduled to begin on July 6, 2009. However, due to the fact that temporary housing recently became available, many residents were forced to spend their Fourth of July weekend moving all of their belongings out of their apartments. Because the apartment owners were sued over asbestos exposure after the roof work in 2007, this time around they are being extremely cautious. Prometheus had promised to cover belongings left behind in the apartments to protect them from asbestos dust. ASBESTOS LITIGATION: Hazard Found in Plaza Pub Building in N.M. ---------------------------------------------------------------- Asbestos has been discovered at the old Plaza Pub building in Alamogordo, N.M., where the Tularosa Basin Historical Society had hoped to install a museum, Mesothelioma.com reports. In a meeting with city commissioners on June 29, 2009, members of the Tularosa Basin Historical Society revealed their decision to abandon the plan to open a new museum in the Plaza Pub building. The society has decided to discontinue their lease on the building. The society had hoped to open a new museum in order to display their growing collection of artifacts. The building was in need of renovations, but now that asbestos has been found in the structure's roof, the additional costs of removing the cancer- causing substance are too much for the society to bear. Historical Society President Elizabeth Padilla said, "It's with very heavy hearts that we have made this decision. But we believe, because of the limited funding, we cannot continue to go through the process of renovating the Plaza building." Ms. Padilla explained to the commissioners that because the society is nonprofit, about half of their funding comes from membership dues, one-third comes from bookstore sales, and the remaining amount comes from public donations. The future of the building is now uncertain. ASBESTOS LITIGATION: Cleanup Ongoing at Salem Construction Site ---------------------------------------------------------------- The removal of asbestos at a contaminated construction site for a new park on 15 Peabody Street in Salem, Mass., is ongoing, The Salem News reports. Construction stopped in March 2009 when material containing asbestos was discovered in the soil. Mayor Kim Driscoll wrote a letter to abutters stating that the cleanup "does not pose a health risk to neighborhood residents." She said that plastic sheeting has been placed over the park as a "precautionary measure." Mayor Driscoll added that air tests by the project's environmental engineer determined that the site is "safe for anyone in the immediate area." The cleanup is expected to take four weeks. Once it is completed, work on the neighborhood park will resume. ASBESTOS LITIGATION: Grupo Mexico to Pay $1.46B Cash for Asarco ---------------------------------------------------------------- Grupo Mexico S.A.B. de C.V., in court papers, said that it agreed to pay US$1.46 billion in cash plus a US$280 million note to regain control of Asarco LLC, Bloomberg reports. The case is styled In re Asarco LLC, 05-21207, U.S. Bankruptcy Court, Southern District of Texas (Corpus Christi). On July 7, 2009, Grupo Mexico said, "Not only does our plan provide the assurance of paying creditors 97 cents on the dollar in cash at closing, we are prepared to close without a labor accord and are offering a higher payout on the asbestos claims." Details for three plans were filed on July 6, 2009 in the U.S. Bankruptcy Court in Corpus Christi, Tex. According to court documents, to achieve a higher payout than Grupo Mexico's offer, the other two plans require Asarco's court-appointed managers to win an appeals court case worth US$7.48 billion against Grupo Mexico's U.S. holding company, Americas Mining Corp. Asarco's creditors have until Aug. 5, 2009 to vote on three competing payment plans: Grupo Mexico's offer; a proposal to sell the company to mining company Sterlite Industries (India) Ltd. for US$1.1 billion in cash, plus a note worth US$309 million; and US$500 million in cash offered by an affiliate of creditor Harbinger Capital Partners. ASBESTOS LITIGATION: Hazard Found at St. Brigid's School in U.K. ---------------------------------------------------------------- Asbestos was discovered at St. Brigid's School in Denbigh, Wales, United Kingdom, the Daily Post reports. School staff gave out the letters on July 2, 2009, telling students and their families the stage area of the sports hall was now off limits because of asbestos. The letter said the toxic mineral will not be removed until the summer holidays. Unison's Denbighshire regional organizer Jeff Edkins added the problem is not limited to St. Brigid's as other schools in the county are also affected. The assembly hall is occupied daily by pupils and teachers and is used for concerts and PE lessons. It has been used recently for school exams. A spokesman for Denbighshire County Council said, "The location of the asbestos is an area not open to pupils and, unless disturbed or damaged, the asbestos does not pose a risk. "Denbighshire has developed a prioritized list for removal or enclosure of asbestos. Removals are planned to cause minimum disruption to the teaching environment." ASBESTOS LITIGATION: Bid to Move GM Plea to Higher Court Denied ---------------------------------------------------------------- Judge Robert Gerber of the federal bankruptcy court in Manhattan, on July 7, 2009, did not allow certain individuals claiming to have been harmed by General Motors Corporation vehicles to appeal directly to a U.S. federal appeals court against the sale of the Company's assets, Reuters reports. Judge Gerber also rejected a request by a group of asbestos claimants to stay the sale of GM to a group led by the U.S. Treasury. On July 5, 2009, Judge Gerber approved the Company's plan to sell its most profitable assets to a "New GM" funded by the U.S. government. A lawyer for the accident victims, Steven Jakubowski, Esq., of Coleman Law Firm, told the court on July 7, 2009 by telephone that if the GM sale goes ahead, it would be practically pointless for the victims to seek redress. However, GM's attorney, Harvey Miller, Esq., of Weil Gotshal & Manges, said that if the GM sale were blocked or delayed, there would be nothing left at all for claimants to try to recover. The U.S. government had set a deadline of July 10, 2009 for the transaction to be approved, after which it would no longer fund GM. The consumer group, along with the asbestos claimants, had sought to overturn Judge Gerber's decision, because the "New GM" is being created from assets sold "free and clear" of those claims and they would be unable to sue. The asbestos claimants had also filed court papers seeking a stay of the sale that would delay it from taking effect until after the results of the appeal. "New GM" has already agreed to take on product liability claims brought in the future, but not current claims. ASBESTOS LITIGATION: U.K. Gov't. to Respond to Report by July 21 ---------------------------------------------------------------- The United Kingdom's Ministry of Justice said in a statement that it intends to publish a response to an asbestos report by the U.K. Industrial Injuries Advisory Council, Business Insurance reports. The IIAC's recommendation that individuals with pleural plaques should not be considered disabled will figure in the Ministry's decision whether workers with the asbestos-related scarring of the lungs should be compensated. The IIAC said in its June 30, 2009 report that while pleural plaques "can be a source of distress and anxiety" to victims and could carry greater risk of them developing mesothelioma and lung cancer, "the (Industrial Injuries Disablement Benefit) scheme as presently constituted compensates actual disablement rather than the future risk of disablement or health anxiety." "The council recommends against including pleural plaques among the list of prescribed diseases compensated under the IIDB scheme," the report stated. In March 2009, the Scottish Parliament passed the Damages (Asbestos-related conditions) (Scotland) Act, which overturned a 2007 House of Lords ruling that asbestos-exposed workers with pleural plaques are not entitled to compensation. British insurers requested a judicial review of the Scottish law. ASBESTOS LITIGATION: 135 Cases Pending v. GenCorp Inc. at May 31 ---------------------------------------------------------------- GenCorp Inc. faced 135 pending asbestos cases as of May 31, 2009, compared with 157 cases pending as of Nov. 30, 2008, according to the Company's quarterly report filed with the Securities and Exchange Commission on July 7, 2009. The Company faced 138 asbestos-related cases pending as of Feb. 28, 2009. (Class Action Reporter, April 3, 2009) Most of the cases have been filed in Madison County, Ill., and San Francisco. During the six months ended May 31, 2009, the Company recorded 20 claims filed, 22 claims consolidated, 19 claims dismissed, and one claim settled. Aggregate settlement costs were US$20,000 and average settlement costs were US$20,000. During the year ended Nov. 30, 2009, the Company recorded 33 claims filed, 31 claims dismissed, and five claims settled. Average settlement costs were US$246,000 and average settlement costs were US$49,000. Rancho Cordova, Calif.-based GenCorp Inc. manufactures aerospace and defense systems with a real estate segment that includes activities related to the entitlement, sale, and leasing of the Company's excess real estate assets. ASBESTOS LITIGATION: Motion to Disqualify Granted in Kramig Case ---------------------------------------------------------------- The U.S. District Court, Southern District of Ohio, Western Division, granted OneBeacon America Insurance Company's Motion to Disqualify Christopher Bechhold, Esq., and the Thompson Hine Law Firm, in litigation involving asbestos filed by R.E. Kramig Co., Inc. The Court held that Mr. Bechhold and the Thompson Hine firm are disqualified from representing Kramig or any other party adverse to the interests of the OneBeacon Insurers. The case is styled R.E. Kramig Co., Inc., Plaintiff v. Resolute Management, Inc., et al., Defendants and Third Party Plaintiffs. Chief Judge Susan J. Dlott entered judgment in Case No. 1:07-cv- 658 on May 18, 2009. Kramig sued Resolute Management, Inc. (RMI), OneBeacon, American Employer Insurance Company (AEIC), and the Northern Assurance Company of America (NACA) in the Hamilton County, Ohio Court of Common Pleas on July 20, 2007. OneBeacon, through its predecessors or affiliated companies, AEIC and NACA, as well as non-parties Commercial Union Insurance Company (Commercial Union) and Employers Liability Insurance Company, collectively the "OneBeacon Insurers," issued commercial general liability policies (CGL policies) and umbrella policies to Kramig during the relevant time period. Beginning in the 1990s, Kramig was named as a defendant in multiple claims and lawsuits for personal injuries allegedly caused by asbestos exposure. Kramig tendered claims for defense and indemnification regarding the asbestos lawsuits to the OneBeacon Insurers and another liability insurance carrier, Safeco Insurance Company of America. One of these asbestos lawsuit was captioned Hobart Adams et al. v. Acands, Inc. et al. The OneBeacon Insurers agreed to provide Kramig with a defense in the Adams case and assigned the adjustment and handling of the claim to RMI. RMI retained Timothy McKay, Esq., and the Trenz, McKay & Knabe law firm to defend Kramig in the Adams lawsuit. In or about March 2004, Mr. McKay conveyed a settlement offer regarding the Adams lawsuit plaintiff to Cristy Bresson at RMI. Ms. Bresson authorized and instructed Mr. McKay to accept the settlement offer. However, Ms. Bresson failed to transmit the settlement monies to Mr. McKay. The plaintiffs in the Adams lawsuit then moved to enforce the settlement against Kramig. The trial court entered a judgment against Kramig in the amount of US$5,000 plus interest of 10 percent per day. Neither McKay nor his law firm provided Kramig with a copy of the judgment. Kramig did not pay the judgment. On June 12, 2007, the plaintiffs in the Adams lawsuit moved for a writ of attachment against Kramig for the amount of the judgment plus interest, which constituted a balance in excess of US$1 million. Defendants removed the action to this Court on Aug. 10, 2007. Defendants answered the Complaint on Aug. 15, 2007 and then filed a Third-Party Complaint on Sept. 14, 2007 against Third- Party Defendants Safeco, American States Insurance Co., American Economy Insurance Co., attorney Timothy McKay, the law firm of Trenz McKay & Knabe Co. LPA, and the law firm of Mack McKay & Knabe. In the Counterclaim, RMI and the OneBeacon Insurers asserted that Safeco is the parent and successor to American States and American Economy. The Third-Party Defendants, the Safeco Insurers and Mr. McKay and his law firm, each filed separate Answers to the Third-Party Complaint. In the pending Motion to Disqualify, the OneBeacon Defendants move to disqualify Mr. Bechhold and the Thompson Hine law firm from representing any party adverse to the interests of the OneBeacon Defendants in this matter. Beginning in 1994, OneBeacon engaged the Thompson Hine law firm to represent Kramig, as well as other parties insured by OneBeacon, in defense of asbestos personal injury liability claims. On June 29, 2007, OneBeacon filed its motion to disqualify Mr. Bechhold and the Thompson Hine firm from representing Kramig in this matter. ASBESTOS LITIGATION: Court Grants Defendants' Motions in Catania ---------------------------------------------------------------- The U.S. District Court, Middle District of Louisiana, granted Pharmacia Corp.'s Motion to Dismiss Survival Action as Prescribed in asbestos litigation filed by Michael Catania on behalf of his deceased wife, Barbara Catania. The Court also granted a Joint Motion for Partial Summary Judgment Dismissing Survival Claims filed by Royal Indemnity Company as successor in interest to Queen Insurance Company of America and to Royal Insurance Company of America, solely in its capacity as an alleged insurer of the Aber Company, and the Travelers Indemnity Company and the Travelers Indemnity Company on behalf of the Travelers Insurance Company, solely as alleged insurers of The Aber Company (hereinafter Royal and Travelers) against Plaintiffs. The case is styled Michael Catania, et al. v. Anco Insulations, Inc., et al. District Judge James J. Brady entered judgment in Civil Action No. 05-01418-JJB on May 14, 2009. Mrs. Catania was diagnosed with mesothelioma on May 14, 2001, for which she and her husband filed suit on Oct. 31, 2001, and which was subsequently removed to this Court. The Catanias claimed that Mrs. Catania had been exposed to asbestos from 1951 through 1969, from the contaminated clothing of her uncles who were insulators. During the jury trial, the Catanias advised the Court that a full settlement had been reached. On Nov. 18, 2003, the Court issued a 60-day dismissal order. Over the next several months, Mr. Catania filed numerous motions to dismiss as they perfected their settlements with the various defendants. On May 19, 2004, the Court issued a final order dismissing the case, "with prejudice, each party to bear its own costs." Mrs. Catania died on Jan. 18, 2005. On Nov. 23, 2005, Mr. Catania and Kristen Catania, Mrs. Catania's daughter, filed suit against a number of defendants. Some of the defendants had been previously sued in the First Suit, while others, including the moving Defendants, were not. The Current Suit sought damages for Mrs. Catania's wrongful death. On Aug. 19, 2008, Plaintiffs amended their petition to assert survival claims. Gerolyn Petit Roussel, Esq., Jonathan Brett Clement, Esq., Kelly C. Fogleman, Esq., Lauren R. Clement, Esq., Perry J. Roussel, Jr., Esq., of Roussel & Clement in LaPlace, La., Angelique Duhon Freel, Esq., of the Louisiana Department Of Justice in Baton Rouge, La., Kellie M. Rish, Esq., of Deutsch, Kerrigan & Stiles in New Orleans, La., represented the family of Barbara Catania. Jennifer Shepard Kilpatrick, Esq., of Degan Blanchard & Nash, APLC, Margaret Moran Joffe, Esq., of Deutsch, Kerrigan & Stiles, Janet L. MacDonell, Esq., in New Orleans, La., represented the Defendants. ASBESTOS LITIGATION: Court Dismisses McCormick Claim v. Railroad ---------------------------------------------------------------- The Court of Appeals of Tennessee dismissed the asbestos case styled Sam McCormick v. Illinois Central Railroad Company. Judges Alan E. Highers, Holly M. Kirby, and J. Steven Stafford entered judgment in Case No. W2008-00902-COA-R9-CV on May 19, 2009. This was an Interlocutory Appeal from the Circuit Court for Shelby County. Sam McCormick was diagnosed with lung disease on June 14, 2003. At some time subsequent to his diagnosis, but prior to Sept. 1, 2005, Mr. McCormick joined a multi-plaintiff lawsuit against his former employer Illinois Central Railroad Company in Mississippi, under the Federal Employers' Liability Act (FELA), for asbestos exposure. Mr. McCormick died on Sept. 1, 2005. He, along with many of the other plaintiffs, was voluntarily dismissed as a plaintiff in the Mississippi suit in November 2005. On June 8, 2006, "Mr. McCormick" sued the Railroad in the Shelby County, Tenn., Circuit Court, again alleging a cause of action under the FELA for asbestos exposure. The Complaint listed Mr. McCormick, in his individual capacity, as the only party plaintiff. Railroad filed an Answer and served discovery requests upon Mr. McCormick on or about Aug. 1, 2006. On Feb. 20, 2007, Railroad filed a Motion to Dismiss for Failure to Respond to Discovery. On March 21, 2007, "Mr. McCormick" filed a Suggestion of Death, suggesting upon the record that "Sam McCormick died on Sept. 1, 2005." "Mr. McCormick" simultaneously filed a motion to substitute Ann P. McCormick, Mr. McCormick's wife, as the party plaintiff, stating that she was "duly qualified to serve" having been "named as the executor of [Mr. McCormick's estate.]" Railroad claimed that it was unaware of Mr. McCormick's death until March 21, 2007. Railroad filed a Motion to Dismiss on April 9, 2007, claiming that Mr. McCormick lacked the capacity to sue Railroad because only a living employee or the executor or administrator of a deceased employee's estate may maintain an action under the FELA. On May 11, 2007, the trial court denied Railroad's motion to dismiss and allowed Mrs. McCormick to be substituted as the plaintiff. Railroad filed a "Motion to Reconsider." Following a June 29, 2007 hearing on Railroad's Motion to Reconsider, the trial court allowed "Mr. McCormick" 10 days in which to substitute the proper party plaintiff. Because "Mr. McCormick" failed to substitute a proper party plaintiff within 10 days, the trial court entered an Order of Dismissal on July 24, 2007, dismissing "Mr. McCormick's" claim with prejudice. On Aug. 31, 2007, "Mr. McCormick" filed a "Motion to Reconsider." Railroad opposed the motion. Following a hearing on Jan. 18, 2008, the trial court entered an Order on Feb. 19, 2008, granting "Mr. McCormick's" motions to reconsider and for substitution of Mrs. McCormick, and vacating its prior Order of Dismissal entered July 24, 2007. On March 13, 2008, Railroad filed a Request for Appeal by Permission, requesting to appeal the trial court's order allowing substitution by Mrs. McCormick, as well as the trial court's granting of "Mr. McCormick's" "Motion to Reconsider." The trial court granted Railroad's request for interlocutory appeal on April 22, 2008. On Aug. 29, 2008, this Court granted Railroad's Application for Interlocutory Appeal. The Appeal Court reversed the decision of the Circuit Court and dismissed the case. Thomas R. Peters, Esq., Michael C. Hermann, Esq., in Bellevue, Ill., M. Beth Rainwater, Esq., in Memphis, Tenn., represented Appellant. R. Christopher Gilreath, Esq., in Memphis, Tenn., represented Appellee. ASBESTOS LITIGATION: La. Court Junks Parker Civil Rights Lawsuit ---------------------------------------------------------------- The U.S. District Court, Western District of Louisiana, Monroe Division dismissed Darryl B. Parker's civil rights complaint, including asbestos claims. The case is styled Darryl D. Parker v. Department of Correction, et al. District Judge Robert G. James entered judgment in Civil Action No. 08-1553 on May 18, 2009. On April 23, 2009, Magistrate Judge Karen L. Hayes issued a Report and Recommendation, recommending that Mr. Parker's claims be dismissed with prejudice as frivolous. Mr. Parker alleged that he was experiencing breathing problems and serious headaches and that his "belief is that it is from asbestos problems here." Magistrate Judge Hayes reasoned that Mr. Parker's allegations were conclusory. Mr. Parker alleged that Defendants had failed to respond to his grievances. Magistrate Judge Hayes did not address this allegation. This allegation failed to state a claim on which relief can be granted because Mr. Parker had no constitutionally protected right to a prison grievance procedure. This claim was dismissed with prejudice. Mr. Parker requested that he be transferred to a facility where he can avail himself of the services of a social worker. Magistrate Judge Hayes did not address this claim, to the extent that one is alleged. This claim was dismissed with prejudice. Darryl D. Parker, of Jackson, La., represented himself. ASBESTOS LITIGATION: Appeals Court Upholds GE's Summary Judgment ---------------------------------------------------------------- The Court of Appeals of Ohio, Eighth District, Cuyahoga County, upheld the ruling of the Cuyahoga County Court of Common Pleas, which granted a protective order and summary judgment in favor of General Electric Company in an asbestos case filed by Beverly Fagerholm. The case is styled Beverly Fagerholm, Individually and as Executrix of the Estate of George Fagerholm, Plaintiff-Appellant v. General Electric Company, et al., Defendants-Appellees. Judges Frank D. Celebrezze Jr., Colleen Conway Cooney, and Larry A. Jones entered judgment in Case No. 91986 on May 21, 2009. On June 5, 2006, George Fagerholm filed a complaint against numerous defendants stating several causes of action, including employer intentional tort, from his exposure to asbestos at GE's Ivanhoe Road facility in Cleveland, Ohio. Mr. Fagerholm worked for GE at its Ivanhoe Road facility for 39 years. He worked in the factory making experimental furnaces from 1950 to 1955, and he held a management position at the same facility from 1955 to 1989. He was diagnosed with malignant mesothelioma. He died on Sept. 5, 2006. Mrs. Fagerholm, as the executrix of her husband's estate, was substituted as the party plaintiff in this case. Prior to his death, a videotaped discovery deposition of Mr. Fagerholm was taken on July 21, 2006, and a videotaped trial deposition of Mr. Fagerholm was taken on Aug. 1, 2006. During the course of discovery, GE filed a motion for a protective order on the scope of inquiry. The trial court held a hearing on GE's motion and granted the motion in part, thereby limiting Mrs. Fagerholm's inquiry about GE's general corporate knowledge during the time of Mr. Fagerholm's employ. On May 22, 2008, at the deposition of GE's designated corporate representative, Marjorie Drucker, counsel for the parties argued over the scope of the questions being asked of Ms. Drucker, and the trial court was asked to intervene to reiterate the scope of inquiry. After discovery was completed, GE filed its motion for summary judgment. The trial court held a hearing on the motion after both sides had fully briefed the issue of employee intentional tort. On July 22, 2008, the trial court granted summary judgment in favor of GE. On Aug. 21, 2008, Mrs. Fagerholm filed a notice of appeal. John D. Mismas, Esq., Thomas W. Bevan, Esq., Patrick M. Walsh, Esq., of Bevan & Associates, L.P.A. Inc., in Northfield, Ohio, Bruce Carter, Esq., of the Law Office of Bruce Carter in Hamilton, Ohio, represented Beverly Fagerholm. Reginald S. Kramer, Esq., of Oldham & Dowling in Akron, Ohio, represented Appellees. ASBESTOS LITIGATION: Supreme Court Enters Ruling in Rando Action ---------------------------------------------------------------- The Supreme Court of Louisiana entered rulings in the case styled Ray F. Rando v. Anco Insulations Inc., et al. Judges Jeannette Theriol Knoll and Jeffrey P. Victory entered judgment in Case Nos. 2008-C-1163, 2008-C-1169 on May 22, 2009. Judge Victory filed a dissenting opinion. The Supreme Court granted consolidated writ applications to resolve a conflict among the appellate courts of this state on the issue of whether mesothelioma is a compensable occupational disease under the pre-1975 version of the Louisiana Workers' Compensation Act. The Supreme Court affirmed the judgment of the Court of Appeal, First Circuit, Parish of East Baton Rouge, and found that plantiff Ray F. Rando's tort claim against his employer for mesothelioma was not barred by the exclusive remedy provision of the Act. On Sept. 23, 2005, at 59 years of age, Mr. Rando was diagnosed with mesothelioma. On Nov. 22, 2005, he filed suit against H.E. Wiese, Inc., n/k/a Jacobs Contractors, Inc. (JCI), and Parsons Infrastructure & Technology Group, Inc., alleging that his disease was caused by his exposure to asbestos while working as a pipe fitter during his employment with those companies in the early 1970s. At trial, Mr. Rando presented evidence of his exposure to asbestos while working for JCI in late 1970 and early 1971, and Parsons from April 1972 to December 1972; although both exposures were at the Shell Oil facility in Norco, these exposures were at two separate sections of the plant. In both employments, Mr. Rando alleged onlooker exposure to asbestos used by insulators who were not employees of JCI and Parsons. The trial court denied JCI and Parsons' motion for summary judgment in which they asserted that the exclusivity provisions of the Act barred Mr. Rando's tort suit. The court of appeal denied Parsons' request for supervisory review. JCI and Parsons appealed, arguing they were entitled to tort immunity. The court of appeal affirmed the trial court's judgment. The judgment of the Court of Appeal, First Circuit, was affirmed. ASBESTOS LITIGATION: Flintkote's Bid for Reserves Discovery OK'd ---------------------------------------------------------------- The U.S. District Court, Northern District of California, granted The Flintkote Company's request for discovery of reserves in a case involving Aviva Insurance Company of Canada. The case is styled The Flintkote Company, a Delaware Corporation, Plaintiff v. General Accident Assurance Company of Canada, a Canada insurance company; General Accident Fire and Life Assurance Corporation Limited of Perth, Scotland, a Scotland insurance company; and Does 1 through 10, Defendants. District Judge Marilyn Hall Patel entered judgment in Case No. C 04-01827 MHP on May 26, 2009. On April 14, 2004, Flintkote filed an action in San Francisco Superior Court against General Accident Assurance Company of Canada and General Accident Fire and Life Assurance Corporation Limited of Perth, Scotland, predecessors in interest of Aviva. Flintkote alleged breach of contract for defendants' failure to defend or indemnify plaintiff for claims covered under a primary insurance policy. Flintkote had requested discovery of reserves and reinsurance information that was withheld or redacted by Aviva. Flintkote also requested in camera review of documents that contained information redacted by defendant on the basis of attorney-client privilege, work product privilege and confidential business information. Flintkote is a company that formerly mined and sold asbestos and asbestos-based products. It purchased a primary insurance policy from Aviva's predecessors in interest to cover general commercial liability, including asbestos-related bodily injury claims. The policy was in force between Jan. 1, 1958 and Jan. 1, 1961. In 2004, Flintkote sought bankruptcy protection as a result of its exposure to asbestos-related lawsuits. It brought this action to recover from defendant defense and liability costs paid out as a result of asbestos-related tort claims brought against it. Flintkote received responses to interrogatories regarding reserves. Aviva answered that sometime before Oct. 19, 1983. It set reserves at US$55,000 and then increased reserves to US$250,000 between January 1988 and June 1991. Aviva increased its reserves to either US$450,000 or US$500,000 as of February 1998. Reserves were set at US$400,001 in December 1999 and then increased to US$2 million on March 15, 2004. Aviva had continued to set reserves since 2004. Flintkote added a bad faith liability claim against Aviva, alleging that Aviva engaged in malicious and unreasonable conduct, such as failing to defend Flintkote against asbestos- related claims despite knowledge that the claims were potentially covered. Flintkote asserted that Aviva should produce its reserves documents. Aviva responded that they are protected as confidential business information and are irrelevant. Flintkote sought production of Aviva's reserves information and reinsurance documents that have been withheld and redacted. Flintkote also alleged that Aviva had improperly made redactions of documents and requests in camera review of these documents by the court to determine whether the redactions were improper. Flintkote's for discovery of reserves information was granted and its request for reinsurance information was denied. ASBESTOS LITIGATION: Hazard Alert Raised on Sheffield Playground ---------------------------------------------------------------- Andrew McIlveny, a 42-year-old father from Sheffield, England, is concerned that vandals are endangering youngsters by illegally dumping asbestos on a site used as an unofficial playground, The Star reports. Children living around the Arbourthorne gather on the privately- owned site, off Lichford Road, because there are few other open spaces to play on the estate. Mr. McIlveny said, "I'm really worried they are being put at risk. It started with a couple of bags a month ago, which I reported to the council. "Now there's about six bags of waste including old corrugated asbestos roofing material and glass. It's not just the children who use the site but also people walking their dogs." Sheffield Council said it had no record of Mr. McIlveny's original complaint but has promised to get in touch with him and remove the asbestos. ASBESTOS LITIGATION: Wroughton Museum Denies Presence of Hazards ---------------------------------------------------------------- THE Science Museum at Wroughton, England, denied that the Adrian Flux Classic Car Show was forced to find a new venue because of concerns over asbestos in the museum's hangers, This is Wiltshire.co.uk reports. In July 7, 2009, it was reported the show, previously known as the Wroughton Classic Car Show, might have to be cancelled after its proposed new home, the Liddington Hotel, was sold off by administrators. The show has been held at the Science Museum for the past three years and organizers said they had sought a new venue because of asbestos in its hangers. Science Museum spokesman Matt Moore said, "No event would ever be booked if there was a concern over asbestos. Its presence in the museum's hangers, common to many similar locations, is controlled and managed through our health and safety procedures and stringent checks are made before any event takes place." ASBESTOS LITIGATION: Battle Calls For Research Center in Leeds ---------------------------------------------------------------- Leeds West MP John Battle says that a specialized research center should be opened in Leeds, England, in preparation for an increasing number of asbestos-related lung diseases, the Yorkshire Evening Post reports. Mr. Battle is to urge Health Secretary Andy Burnham to significantly increase the Department of Health's investment in asbestos cancer research. More than 20,000 people have signed a petition urging the creation of a state-of-the-art research center and Mr. Battle wants it built it in Leeds. Mr. Battle said, "There is no reason why it shouldn't be in Leeds. We have got a good cancer unit and a good medical school. There is going to be a massive increase in mesothelioma cases in the next 20 years, which means now is the time to get on with it." Leeds has suffered more than most through the use of asbestos, partly due to the work of the JW Roberts asbestos factory in Armley. ASBESTOS LITIGATION: Marystown Shipyard Calls for Payout Reforms ---------------------------------------------------------------- Marystown Shipyard Families Alliance, a Newfoundland, Canada- based organization, seeks workers' compensation for shipbuilders who may have been exposed to asbestos and other carcinogens, Mesothelioma.com reports. In June 2009, Bernadine Bennett and Bertha Smith led a meeting of the Marystown Shipyard Families Alliance. The community of Marystown is steeped in shipbuilding culture, and many local families take place in the shipbuilding industry. Ms. Bennett argues that despite the fact that Marystown was the site of shipbuilding for generations, the shipbuilding that occurred in the community from 1967-1998 was particularly dangerous. During this period, a commercial shipyard was built by the Canadian government, and was then sold off to a private owner. She argues that it was during this period that workers were exposed to various carcinogens like asbestos. Ms. Bennett says, "For years when it came to occupational disease claims from the Marystown Shipyard, the [Workplace Health, Safety & Compensation Commission], they dealt only with asbestos. "So when our committee formed three years ago and we started investigating the workers who actually worked at that shipyard and the diseases that we saw, we knew at that time that we were dealing with a whole lot more than asbestos." ASBESTOS LITIGATION: CSI Toy Customers Eligible to Get Refunds ---------------------------------------------------------------- Customers who bought asbestos-contaminated toys based on the television show "CSI: Crime Scene Investigation" are now eligible to get refunds, The Wall Street Journal reports. However, Planet Toys Inc., the company that developed the products would not be footing the bill. Instead, the retailers who distributed the toys are taking the fall, agreeing to provide cash refunds for the product. The toys sold for about US$30 apiece, Victoria Ni, Esq., said. Ms. Ni, who is with public interest law firm Public Justice, represented the Asbestos Disease Awareness Organization in the case. The ADAO commissioned the original study that identified asbestos in the toys. Under the settlement, retailers including Toys "R" Us, Inc.; CBS Broadcasting Inc.; and Kmart Corporation will pay for the costs of the claims administration and will hand over US$30,000 to the ADAO. Customers are eligible for refunds and can also send back the toys free of charge. Planet Toys sought bankruptcy protection in March 2009, committing right off the bat to liquidate its assets under Chapter 7. At the time, an attorney for Planet Toys said that the economy was the main reason behind the filing, but Planet Toys also faces a class-action lawsuit initiated in May 2008. The lawsuit was brought by parents who thought their kids were just learning about science while blowing on the special fingerprint powder included in the CSI: Crime Scene Investigation Fingerprint Examination Kit and the CSI: Crime Scene Investigation Forensic Lab Kit. Tests eventually revealed that the toys contained asbestos. Planet Toys had been taking part in negotiations over a possible settlement to the lawsuit, but once its Chapter 7 protection kicked in, it abandoned its place at the bargaining table. The bankruptcy code's automatic stay shields companies from lawsuits. ASBESTOS LITIGATION: Calif. Court Grants Dobrocke Remand Motion ---------------------------------------------------------------- The U.S. District Court, Northern District of California, granted John and Darlene Dobrocke's Motion to Remand an asbestos lawsuit filed against Foster Wheeler, LLC and other defendants. The case is styled John Dobrocke and Darlene Dobrocke, Plaintiffs v. Allis-Chalmers Corporation Product Liability Trust, et al., Defendants. District Judge Claudia Wilken entered judgment in Case No. C 09- 01456 CW on May 26, 2009. On Feb. 13, 2009, the Dobrockes filed suit in the San Francisco superior court alleging personal injury and loss of consortium against numerous defendants, among them Foster Wheeler. Mr. Dobrocke formerly worked with asbestos as an insulator and now suffers from asbestos-related lung disease. The precise nature of the Dobrockes' allegations against Foster Wheeler was unclear. The only mention in the complaint of Foster Wheeler by name was the following: "Plaintiffs' claims against defendant Foster Wheeler LLC (f/k/a Foster Wheeler Corporation) exclude plaintiff's asbestos exposure at military and federal government jobsites and aboard U.S. Navy vessels." The Court shall remand the case back to the Superior Court for the County of San Francisco. ASBESTOS LITIGATION: Settlement Entered in 3M Derivative Action ---------------------------------------------------------------- 3M Company has entered into a settlement of a shareholder derivative lawsuit filed in the U.S. District Court for the District of Delaware captioned Insulators and Asbestos Workers Local No. 14 Pension Fund v. George W. Buckley, et al., C.A. No. 07-416-GMS, according to a Company report, on Form 8-K, filed with the Securities and Exchange Commission on July 7, 2009. The suit was against the Company as nominal defendant and against each then current member of the Board of Directors and the officers named in the Summary Compensation Table of the 2007 Proxy Statement. The suit alleged that the Company's 2007 Proxy Statement contained false and misleading statements concerning the tax deductibility of compensation payable under the 3M Executive Annual Incentive Plan and the standards for determining the amounts payable under the Plan. The terms of the Settlement are set forth in a Notice of Pendency of Derivative Action, Proposed Settlement, Settlement Hearing and Right to Appear that was made available to stockholders. The Settlement provided for disclosure of certain information by 3M regarding the operation of the Plan and the adoption by the Compensation Committee of the Board of Directors of a resolution confirming its interpretation of the term "Special Items" as used in the Plan. The Settlement also provided for the dismissal of the suit, for the release of all claims against the defendants that could have been asserted in the suit, and for payment of Plaintiff's attorneys' fees and expenses by the Company. The Court approved the Settlement, and its material terms. The Company and the officers and directors named as defendants have maintained that the suit was improper from its inception, and the defendants denied and continue to deny that they committed any violation of law or breach of fiduciary duty. However, the Settlement allowed the Company to avoid the inherent uncertainty of litigation and the distraction and waste of resources that would have been necessary to pursue the litigation to conclusion. The District Court held a hearing on the fairness of the Settlement on June 3, 2009. St. Paul, Minn.-based 3M Company is a manufacturer, technology innovator and marketer of a wide variety of products and services. It manages its operations in six operating business segments: Industrial and Transportation, Health Care, Consumer and Office, Safety, Security and Protection Services, Display and Graphics and Electro and Communications. ASBESTOS ALERT: Ontario Local to Pay $87.5T for Handling Breach ---------------------------------------------------------------- Krishan Judge, the owner of an old commercial building in Kitchener, Ontario, Canada, and his Cambridge-based firm, 1604945 Ontario Inc., were issued total fines of CAD87,500 after workers renovating his building were put in danger of inhaling asbestos, The Record reports. Mr. Judge was fined CAD10,000 and the Company, which owns the building, was fined CAD70,000 for violating the Occupational Health and Safety Act. In addition, Mr. Judge and the Company were assessed victim surcharge fines of 25 percent, pushing the total penalty to CAD87,500. Mr. Judge pleaded guilty to the charges during a hearing in the Ontario Court of Justice in Kitchener. The incident, which occurred in June 2007, led to the evacuation of all tenants in the building, some for more than three months, while others left permanently. Mr. Judge was charged by the Ministry of Labour after workers began renovating the building, the former Boehmer Box warehouse, at 283 Duke St. W. near Breithaupt Street. Soon after, the Ministry received a complaint that workers were not aware they were handling insulation that contained asbestos. Darrel Hawreliak, a lawyer who represented Mr. Judge in the case, said his client hired an environmental consultant and cleanup company when he became aware of the asbestos problem. Mr. Hawreliak said Mr. Judge pleaded guilty to the charge of failing to conduct a study of the building for harmful substances. Mr. Judge bought the building in 2004. The building currently houses about 30 tenants. ASBESTOS ALERT: Pavilion, Balkema Cited in Waste Handling Claim ---------------------------------------------------------------- The Michigan Department of Environment Quality issued citations to Pavilion Township and Balkema Excavating Inc. for violations over the demolition of two houses and a garage containing asbestos and then burning the debris, the Kalamazoo Gazette reports. The DEQ said the township and county Commissioner Jeff Balkema, R-Pavilion Township, failed to notify state officials of the planned demolition of the vacant homes and garage on East O Avenue. DEQ spokesman Bob McCann said the notification was necessary so the structures could be evaluated for asbestos. Mr. McCann added the DEQ's Air Quality Division and its Office of Criminal Investigations is continuing to probe the incident to determine whether any other violations occurred. Mr. Balkema, who owns Balkema Excavating and was first elected to the county board in 2002, and Pavilion Township Supervisor Patrick White, both declined to comment for this report. Mr. White has been Pavilion supervisor since 1981. Mr. White, Mr. Balkema and Luanne McClain, a member of JCB Land V LLC, which owned the properties that were demolished, were notified of the violations in a May 29, 2009 letter from Robert Christmas, an environmental quality analyst with the DEQ. A copy of the letter, obtained by the Kalamazoo Gazette, shows the DEQ's Air Quality Division inspected properties at 5150, 5190 and 5246 East O Ave. on April 23, 2009 after receiving a complaint. Mr. Christmas' letter said township officials had ordered that structures at the three addresses be demolished and hired Mr. Balkema's company to do the work. In the letter, Mr. Christmas said in a phone conversation with Mr. Balkema on April 21, 2009 he learned the DEQ had not been properly notified of the demolition. The letter said Mr. Balkema then was "told specifically that the materials could not be burned on site." However, during an April 23, 2009 inspection, Mr. Christmas said state officials found that houses at 5190 East O Ave. and 5246 East O Ave. "had been demolished and burned." Mr. Christmas said a garage at 5190 East O Ave. also had been demolished and burned, according to the letter. Based on the findings, Mr. Christmas' letter cites eight violations of the National Emission Standard for Asbestos. Mr. McCann said JCB Land, the township and Mr. Balkema's company are equally liable for the violations. The letter asked the three parties to correct the violations and to submit a written response by June 19, 2009. A letter Ms. McClain provided to the Gazette, dated June 17, 2009, shows she replied to Mr. Christmas telling him she was at the East O Avenue properties on April 21, 2009 and saw the burning of debris. She said in the letter that Mr. White, Mr. Balkema, two to three of Mr. Balkema's employees, a sergeant from the Kalamazoo County Sheriff's Office and employees of Laraway & Sons House Moving were present at the time. Ms. McClain confirms in the letter that she reported the activity to the DEQ that same day, April 21, 2009. As part of the state probe, Mr. McCann said investigators are trying to determine whether the burning of the debris occurred before or after Mr. Balkema's April 21, 2009 phone conversation with Mr. Christmas. Mr. McCann said the township plans to demolish a third house, at 5150 East O Ave., and has submitted proper notification to the DEQ. Documents filed in Kalamazoo County Circuit Court show the properties at the three addresses on East O Avenue have been the subject of ongoing court proceedings involving Pavilion Township, Ms. McClain, JCB Land and other individuals. COMPANY PROFILE: Balkema Excavating Inc. 1500 River St. Kalamazoo, Mich. 49048 United States Tel. No.: (269)345-5289 Fax: (269)345-1137 ********* 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. 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