/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/101001.mbx C L A S S A C T I O N R E P O R T E R Friday, October 1, 2010, Vol. 12, No. 194 Headlines AIRTRAN HOLDINGS: Two Law Firms Seek Clients to File Class Suits AMARANTH ADVISORS: Judge Certifies Suit as Class Action AMBASSADORS GROUP: Court Denies Motion to Dismiss Amended Suit AMERICAN MULTI-CINEMA: 9th Circuit Allows Class Action to Proceed BAPTIST MEMORIAL: Judge Decertifies "Frye" Suit Over Pay Practices BAYER AG: US Supreme Court to Consider Baycol Lawsuit BIG 5: Final Approval of Settlement in "Weyl" Suit Pending CNO FINANCIAL: Estimates Maximum Loss in "Schleicher" at $2-Mil. CNO FINANCIAL: Seeks Dismissal of Plumbers and Pipefitters Suit CNO FINANCIAL: Continues to Oppose Certification in "Hansen" CNO FINANCIAL: Continues to Defend "Yue" Suit in California CNO FINANCIAL: Summary Judgment Motion on (B)(2) Class Pending CNO FINANCIAL: Continues to Oppose Certification in "Brady" CNO FINANCIAL: Continues to Oppose Certification in "McFarland" CNO FINANCIAL: No Hearing Date Yet in "Rowe" Certification Plea COMPELLENT TECH: Continues to Defend Two Suits in Minnesota CORINTHIAN COLLEGES: Accused in Utah Suit of Defrauding Students DEPUY ORTHOPAEDICS: Burg Simpson Files Class Suit Over Implants DIAL CORP: Accused in Illinois Suit of Deceptive Advertising DICK'S SPORTING GOODS: Accused of Not Paying Overtime HEARTLAND PAYMENT: Final Approval of Settlement Remains Pending HEARTLAND PAYMENT: Continues to Defend "McInerney/Zand" Suit IOWA: Judge Grants Class Action Status to Race Discrimination Suit KENEXA CORP: Pennsylvania District Court Dismisses Class Action NETEZZA CORP: Being Sold to IBM for Too Little, Mass. Suit Says NVIDIA CORP: Settles Suit Over Defective GPUs and MCPs in Laptops OVERHILL FARMS: "Agustiana" Suit in Discovery Phase OVERHILL FARMS: Defends "Salinas" Suit in Los Angeles SLM CORP: Judge Allows Suit Over Misstatements to Move Forward SUNRISE MEDICAL: Recalls 20 Quickie(R) Shark Bikes USA: Black Farm Groups Demand "Immediate Action" on Funding * Corporate Lawyers Balk at Class Action Disclosure Requirement Asbestos Litigation ASBESTOS UPDATE: Ben DuBose Speaks at Perrin Asbestos Conference ASBESTOS UPDATE: Taiwanese Govt. to Ban Asbestos Use by 2020 ASBESTOS UPDATE: Pakistan Tribunal Wants Report by October 20 ASBESTOS UPDATE: Insulation to be Cleared From Lincoln Hospital ASBESTOS UPDATE: $4MM Grant Awarded for Cleanup at Harvey Mall ASBESTOS UPDATE: Donnell Dismisses Asbestos Lawsuit Filed v. UW ASBESTOS UPDATE: EAD Firm Raising Awareness for Asbestos Disease ASBESTOS UPDATE: Sinisgalli Owner Charged for Asbestos Breaches ASBESTOS UPDATE: Wallington Local to Get Payout from Ex-Employer ASBESTOS UPDATE: Pusey's Death Related to Second-Hand Exposure ASBESTOS UPDATE: Life Tech. Fined $7,940 for Breach at Hopkinton ASBESTOS UPDATE: 2 Firms Fined $49,448 Each for Lowell Breaches ASBESTOS UPDATE: Appeals Court Overrules Judge Stack in CSX Case ASBESTOS UPDATE: 7 Hazardous Waste Sites Added to Superfund NPL ASBESTOS UPDATE: EPA Adds 3 Sites in Fla. & Tenn. to CERCLA NPL ASBESTOS UPDATE: 15 Actions Ongoing v. Ameron Int'l. at Aug. 29 ASBESTOS UPDATE: W.L. Thomas Fined $8,400 for Abatement Breaches ASBESTOS UPDATE: Nuneaton and Bedworth Fined for Safety Breaches ASBESTOS UPDATE: U.K. Inquest Rules on Lower Earley Man's Death ASBESTOS UPDATE: Secondhand Exposure Seen in U.K. Woman's Death ASBESTOS UPDATE: Dredging at Sumas River Raises Asbestos Concern ASBESTOS UPDATE: Asbestos Found at Tewantin State School Grounds ASBESTOS UPDATE: Leicester Council Awards Payout to Norton Widow ASBESTOS UPDATE: Hazard Found at Washington Elementary Classroom ASBESTOS UPDATE: Asbestos Delays Refurbishment at Buxton's Pool ASBESTOS UPDATE: Thurrock Council Rapped for Boiler Room Hazard ASBESTOS UPDATE: Pa. Court OKs Ruling in Moore Case v. Ericsson ASBESTOS UPDATE: Ohio Appeal Court OKs Ruling in Connell Lawsuit ASBESTOS UPDATE: Supreme Court Reverses Ruling in Trascher Case ASBESTOS UPDATE: Clearwater Bids in Seaton Insurance Case Denied ASBESTOS UPDATE: NKSJ Receiving Notices for Potential A&E Claims ASBESTOS UPDATE: Bird-Morgan Renovation Project Granted Sept. 28 ASBESTOS UPDATE: Fanslau Lawsuit v. Various Firms Filed Sept. 27 ASBESTOS UPDATE: Hazard Delays Reopening of Morristown's Library ASBESTOS UPDATE: 2 Trials to Commence on Oct. 4 in McLean County ASBESTOS UPDATE: Mo. Court Denies Defendants' Bid in Martin Case ASBESTOS UPDATE: Appeal Court Reverses Ruling in Smith's Lawsuit ********* AIRTRAN HOLDINGS: Two Law Firms Seek Clients to File Class Suits ---------------------------------------------------------------- The Business Journal of Milwaukee reports two law firms are seeking clients who are shareholders of AirTran Holdings Inc. to file class-action suits against the airline for matters related to its proposed acquisition by Southwest Airlines. Goldfarb Branham LLP, of Dallas, said Tuesday it is investigating the proposed buyout of AirTran Holdings (NYSE: AAI) for shareholders. Under the cash-and-stock deal announced Monday, AirTran shareholders will receive approximately $7.75 per share through a combination of $3.75 in cash and Southwest stock. "Our firm is investigating the deal because it appears from a review of AirTran's financial statements that the inherent value of the stock is greater than $7.75 per share and also because at least one analyst believes that the stock is worth $11 per share," said securities lawyer Hamilton Lindley. "Our proposed class action lawsuit seeks to get more money and information for AirTran shareholders." The Law Offices of Howard G. Smith in Bensalem, Pa., on Monday said it is investigating potential claims against the board of AirTran Holdings related to the company's agreement to be acquired by Southwest Airlines (NYSE: LUV) for approximately $1.37 billion. The Smith law firm said its investigation concerns possible breaches of fiduciary duty and other violations of law related to approval of the proposed transaction by AirTran's board of directors. AMARANTH ADVISORS: Judge Certifies Suit as Class Action ------------------------------------------------------- Bob Van Voris, writing for Bloomberg News, reports Amaranth Advisors LLC, the hedge fund that collapsed in 2006 after losing $6.6 billion on energy trades, must face a class-action lawsuit in which it's accused of market manipulation, a judge in New York ruled. U.S. District Judge Shira A. Scheindlin said in a decision made public Tuesday that futures traders who bought, sold or held gas futures or options on futures contracts from Feb. 16 to Sept. 28 in 2006 can sue as a group. "This case is best suited to proceed as a class action," Judge Scheindlin said in the opinion. "It involves more than 1,000 potential claimants who are asserting claims based on common issues." Amaranth failed after losing two-thirds of its assets on natural- gas bets. According to the traders, Amaranth used its market power to manipulate the prices of natural gas futures contracts. The hedge fund controlled more than half of the U.S. natural gas market before it collapsed, according to a 2007 U.S. Senate report. "Judge Scheindlin made no decision on the merits of the claims against Amaranth and we are confident that if, and when, those merits are heard, the claims against Amaranth will be rejected," Steven M. Schwartz, a lawyer for Amaranth, said in an e-mailed statement. Mr. Schwartz said the chief economist of the Commodity Futures Trading Commission determined that Amaranth didn't cause the changes in natural gas futures pricing in 2006. Amaranth is considering an appeal of Judge Scheindlin's ruling, he said. The case is In Re Amaranth Natural Gas Commodities Litigation, 07-cv-06377, U.S. District Court, Southern District of New York (Manhattan). AMBASSADORS GROUP: Court Denies Motion to Dismiss Amended Suit -------------------------------------------------------------- The U.S. District Court for the Eastern District of Washington has denied Ambassadors Group, Inc.'s motion to dismiss an amended complaint. On July 14, 2009, a securities class action was filed against the company and certain of its executive officers on behalf of all persons or entities who purchased the company's Common Stock between Feb. 8, 2007 and Oct. 23, 2007. The class action was filed in the U.S. District Court for the Eastern District of Washington by plaintiff Plumbers Union Local No. 12 Pension Fund. The Plumbers Union filed an amended complaint on Jan. 11, 2010. The amended complaint alleges that the defendants violated federal securities laws by making untrue statements of material fact and/or omitting to state material facts, thereby artificially inflating the price of our Common Stock. We have reviewed the amended complaint and deny the allegations contained therein. On March 11, 2010, the company, and certain of its executive officers, filed a motion to dismiss the Plumbers Union's amended complaint. On June 2, 2010, the Court issued an order denying the company, and certain of its executive officers, motions to dismiss the Plumber Union's amended complaint. The company has tendered its defense and indemnity under applicable insurance coverage and defense counsel in Seattle, Washington has been retained to represent the company, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. Ambassadors Group, Inc. -- http://www.ambassadorsgroup.com/-- is a socially conscious, education company located in Spokane, Washington. Ambassadors Group is the parent company of People to People Ambassador Programs, World Adventures Unlimited, and BookRags, an educational research website. The company also oversees the Washington School of World Studies, an accredited travel study and distance learning school. AMERICAN MULTI-CINEMA: 9th Circuit Allows Class Action to Proceed ----------------------------------------------------------------- Sherri M. Okamoto, staff writer for Metropolitan News-Enterprise, reports the Ninth U.S. Circuit Court of Appeals Monday revived a class action against the AMC theatre chain for alleged violations of the Fair and Accurate Credit Transactions Act. AMC's good faith effort to comply with the act after Michael Bateman's lawsuit was filed and its potential liability -- up to $290 million -- did not justify denial of class certification on superiority grounds, the panel said. Mr. Bateman filed a complaint against AMC in 2007, asserting violation of FACTA provisions requiring that credit and debit card receipts issued to consumers not reflect the expiration date or more than the last five digits of the card number. He sought to certify a class of individuals who received receipts from some of AMC's automated box offices that included the first four and the last four digits of the credit or debit card tendered for payment between Dec. 4, 2006, and Jan. 29, 2007. An AMC internal review conducted after the lawsuit was filed revealed that more than 290,000 receipts had been printed in violation of FACTA during the relevant period. Statutory Damages Mr. Bateman did not any actual harm caused by the violations, but FACTA incorporates the Fair Credit Reporting Act's statutory damages provision, which allows a consumer to recover damages between $100 and $1,000 for each willful violation of the act. U.S. District Judge Florence-Marie Cooper, now deceased, denied Mr. Bateman's motion, finding the potential for liability "enormous and completely out of proportion to any harm suffered" by the class members and that certification would not further the purpose and policy of FACTA. But Judge Richard A. Paez explained in his opinion for the appellate panel that the statutory damages scheme was "intended to compensate individuals for actual or potential damages resulting from FACTA violations," and "the plain text of the statute makes absolutely clear that, in Congress's judgment, the $100 to $1000 range is proportionate and appropriately compensates the consumer." Judge Paez added that the size of the putative class would not affect the proportionality of relief because the amount potential liability "expands at exactly the same rate as the class size." Since FACTA does not place a cap on damages in the case of class actions, does not indicate any threshold at which courts are free to award less than the minimum statutory damages, and does not limit the number of individuals that can be certified in a class or the number of individual actions that can be brought against a single merchant, Judge Paez reasoned that Congress had not provided for judicial discretion to depart from the $100 to $1000 range where a district judge finds that damages are disproportionate to harm. Deterrent Effect The jurist further posited that the $100 to $1000 figured represented the range of damages the Legislature considered sufficient to have a deterrent effect and that "[a]llowing denial of class certification because of the sheer number of violations and amount of potential statutory damages would allow the largest violators of FACTA to escape the pressure of defending class actions and, in all likelihood, to escape liability for most violations." Judge Paez suggested that certification in this case "would preserve, if not amplify, the deterrent effect of FACTA," since AMC's compliance with FACTA after the complaint was filed was likely "promoted, at least in part, by the specter of a substantial damages award." He added that Cooper's denial of certification based on AMC's later modification of its machines to comply with the act "would communicate to other potential violators that, as long as they comply with FACTA after a complaint is filed, they may avoid liability for widespread violations," undermining the statute's deterrent effect, and was also an abuse of discretion since Congress did not include any safe harbor or otherwise limit damages for good faith compliance after an alleged violation. Judge Paez, however cautioned that yesterday's decision would not foreclose the possibility that a showing of "ruinous liability" would warrant denial of class certification or that the district court could reduce the amount of damages awarded if Bateman prevails at trial. Senior Ninth Circuit Judge Betty B. Fletcher and Senior U.S. District Judge Donald E. Walter of the Western District of Louisiana, sitting by designation, joined in the opinion. A copy of the decision in Bateman v. American Multi-Cinema, Inc., No. 09-55108 (9th Cir.), is available at http://is.gd/fwGDq Plaintiff-Appellant Michael Bateman is represented by: Gregory N. Karasik, Esq. SPIRO MOSS LLP 11377 West Olympic Blvd., Fifth Floor Los Angeles, CA 90064-1683 Telephone: 310-235-2468 American Multi-Cinema, Inc. is represented by: Robert H. Platt, Esq. MANATT, PHELPS & PHILLIPS LLP 11355 W. Olympic Blvd. Los Angeles, CA 90064 Telephone: 310-312-4000 Amicus Curiae Consumer Data Industry Association is represented by: Adel James Chareq, Esq. HUDSON COOK LLP 1020 19th St., N.W., 7th Floor Washington, DC 20036 Telephone: 202-223-6930 BAPTIST MEMORIAL: Judge Decertifies "Frye" Suit Over Pay Practices ------------------------------------------------------------------ Tom Wilemon, writing for The Daily News in Memphis, reports the suit alleging Baptist hospitals in Memphis engaged in unfair pay practices by making automatic meal deductions from employee paychecks and 30-minute payroll deductions for lunch breaks has lost its class action status. U.S. District Judge Samuel H. Mays Jr. has issued an order decertifying collective action for the suit filed by James Allen Frye, a former nurse. Judge Mays granted conditional certification in September 2008, but left the door open for Baptist Memorial Health Care Corp. to argue in the second stage of the proceeding the status was not appropriate because of the "individualized nature" of the jobs. About 400 plaintiffs, who worked in several of the hospitals' departments, signed up behind Frye as plaintiffs. Judge Mays cited three reasons for the decision. Mr. Frye failed to prove Baptist had violated the Fair Labor Standards Act (FLSA), the instances of alleged violations required "individualized defenses" and the suit would reduce judicial economy. "Standing alone, an employer policy providing automatic deductions for meal breaks does not violate the FLSA," Judge Mays wrote. He pointed out the system did correct the automatic deductions if employees reported having worked through breaks. "Baptist's formal policy is to compensate employees for time worked during meal breaks," he wrote. "[Mr.] Frye has introduced no direct evidence that Baptist has maintained a de facto policy to the contrary. Indeed, many of the employees deposed by Baptist admit that, when they used their departments' exemption procedures, Baptist paid them for time worked during meal breaks." Greg Duckett, senior vice president and corporate counsel for Baptist Memorial Health Care, welcomed the decision. "We are pleased that the court agreed with us," he said. "We believe this case is without merit because we value and respect our employees and work hard to protect their rights." The lawyer representing Mr. Frye and the other plaintiffs in the case, Alan Crone, was unavailable for comment as of press time. The decision marks the second time this year an attempt to file a collective action suit against Memphis hospitals has failed. In January, Judge Mays denied a motion to allow a substitute plaintiff in a case that had bigger ramifications for hospitals. It alleged hospitals citywide conspired about wages and suppressed competition for nurses. Judge Mays had previously ruled that the two originally named plaintiffs did not adequately represent nurses in the Memphis area because one had worked for a union-affiliated organization and the other had filed for bankruptcy. BAYER AG: US Supreme Court to Consider Baycol Lawsuit ----------------------------------------------------- Brent Kendall of Dow Jones Newswires reports the U.S. Supreme Court said Tuesday it will consider a lower court ruling that barred a group of West Virginia plaintiffs from proceeding with a class-action lawsuit over Bayer AG's (BAYRY, BAYN.XE) cholesterol- lowering drug Baycol, which was withdrawn from the market in 2001. Bayer argued the lawsuit could not proceed because a federal judge had previously rejected a similar class-action lawsuit filed by another West Virginia plaintiff. The drug maker said the second group of plaintiffs was unfairly seeking to relitigate the case. Two lower courts agreed. The Supreme Court will consider the plaintiffs' arguments that their class- action suit was wrongly thrown out. Bayer withdrew Baycol from the market in August 2001 because of its alleged role in serious side effects and the deaths of some patients using the drug. Bayer said none of the West Virginia plaintiffs suffered an injury caused by Baycol. The plaintiffs in the current case filed their lawsuit in September 2001. They said they were unaware of the previous attempt at a class-action lawsuit involving West Virginia users of Baycol. The case is Smith v. Bayer Corp., 09-1205. Oral arguments are likely to take place early next year, with a decision expected by July. BIG 5: Final Approval of Settlement in "Weyl" Suit Pending ---------------------------------------------------------- Big 5 Sporting Goods Corporation continues to await final approval of the settlement agreement resolving the matter Shane Weyl v. Big 5 Corp., et al., Case No. 37-2009-00093109-CU-OE-CTL. On Aug. 6, 2009, the company was served with a complaint filed in the California Superior Court for the County of San Diego, alleging violations of the California Labor Code and the California Business and Professions Code. The complaint was brought as a purported class action on behalf of the Company's hourly employees in California for the four years prior to the filing of the complaint. The plaintiff alleges, among other things, that the company failed to provide hourly employees with meal and rest periods and failed to pay wages within required time periods during employment and upon termination of employment. The plaintiff seeks, on behalf of the class members, an award of one hour of pay (wages) for each workday that a meal or rest period was not provided; restitution of unpaid wages; actual, consequential and incidental losses and damages; pre-judgment interest; statutory penalties including an additional 30 days' wages for each hourly employee in California whose employment terminated in the four years preceding the filing of the complaint; civil penalties; an award of attorneys' fees and costs; and injunctive and declaratory relief. On Dec. 14, 2009, the parties engaged in mediation and agreed to settle the lawsuit. On Feb. 4, 2010, the parties filed a joint settlement and a motion to preliminarily approve the settlement with the court. On July 16, 2010, the court granted preliminary approval of the settlement and scheduled a hearing for Dec. 10, 2010, to consider final approval of the settlement. Under the terms of the settlement, the company agreed to pay up to a maximum amount of $2.0 million, which includes payments to class members who submit valid and timely claim forms, plaintiff's attorneys' fees and expenses, an enhancement payment to the class representative, claims administrator fees and payment to the California Labor and Workforce Development Agency. Under the settlement, in the event that fewer than all class members submit valid and timely claims, the total amount required to be paid by the company will be reduced, subject to a minimum payment amount calculated in the manner provided in the settlement agreement. The company's anticipated total payments pursuant to this settlement were reflected in a legal settlement accrual recorded in the fourth quarter of fiscal 2009. The company admitted no liability or wrongdoing with respect to the claims set forth in the lawsuit. Once final approval is granted, the settlement will constitute a full and complete settlement and release of all claims related to the lawsuit. If the court does not grant final approval of the settlement, the company says it intends to defend the lawsuit vigorously. If the settlement is not finally approved by the court and the lawsuit is resolved unfavorably to the company, this litigation could have a material adverse effect on the company's financial condition, and any required change in the company's labor practices, as well as the costs of defending this litigation, could have a negative impact on the company's results of operations, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 4, 2010. Big 5 Sporting Goods Corporation -- http://www.big5sportinggoods.com/-- is a leading sporting goods retailer in the western United States, operating 388 stores in 12 states under the "Big 5 Sporting Goods" name. Big 5 provides a full-line product offering in a traditional sporting goods store format that averages 11,000 square feet. Big 5's product mix includes athletic shoes, apparel and accessories, as well as a broad selection of outdoor and athletic equipment for team sports, fitness, camping, hunting, fishing, tennis, golf, snowboarding and in-line skating. CNO FINANCIAL: Estimates Maximum Loss in "Schleicher" at $2-Mil. ---------------------------------------------------------------- CNO Financial Group, Inc., estimates that the maximum loss it could reasonably incur in the matter Franz Schleicher, et al. v. Conseco, Inc., Gary Wendt, William Shea, Charles Chokel and James Adams, et al., is approximately $2.0 million. CNO Financial -- formerly known as Conseco, Inc. prior to its name change in May 2010 -- became the successor to Conseco, Inc., in connection with the company's bankruptcy reorganization which became effective on Sept. 10, 2003. After Conseco announced its intention to restructure on Aug. 9, 2002, eight purported securities fraud class action lawsuits were filed in the U.S. District Court for the Southern District of Indiana. The complaints named the company as a defendant, along with certain of its former officers. These lawsuits were filed on behalf of persons or entities who purchased Conseco's common stock on various dates between Oct. 24, 2001 and Aug. 9, 2002. The plaintiffs allege claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and allege material omissions and dissemination of materially misleading statements regarding, among other things, the liquidity of Conseco and alleged problems in Conseco Finance Corp.'s manufactured housing division, allegedly resulting in the artificial inflation of Conseco's stock price. These cases were consolidated into one case in the U.S. District Court for the Southern District of Indiana, captioned Franz Schleicher, et al. v. Conseco, Inc., Gary Wendt, William Shea, Charles Chokel and James Adams, et al., Case No. 02-CV-1332 DFH- TAB. The complaint seeks an unspecified amount of damages. The plaintiffs filed an amended consolidated class action complaint with respect to the individual defendants on Dec. 8, 2003. The company's liability with respect to this lawsuit was discharged in Conseco's plan of reorganization and the company's obligation to indemnify individual defendants who were not serving as an officer or director on the Effective Date is limited to $3 million in the aggregate under such plan. The company's liability to indemnify individual defendants who were serving as an officer or director on the Effective Date, of which there is one such defendant, is not limited by such plan. The company's current estimate of the maximum loss that it could reasonably incur on this case is approximately $2.0 million. A motion to dismiss was filed on behalf of defendants Shea, Wendt and Chokel and on July 14, 2005, this matter was dismissed. Plaintiffs filed a second amended complaint on Aug. 24, 2005. Plaintiffs filed their motion for class certification on May 2, 2008, and on March 20, 2009 the court granted that motion. On April 24, 2009, certain defendants initiated a request to appeal the class certification ruling to the U.S. Circuit Court of Appeals which was accepted by the 7th Circuit. Oral argument on the appeal was held on Sept. 22, 2009, and the matter was taken under advisement. Trial is currently scheduled to occur on Nov. 1, 2010, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. CNO Financial Group, Inc. -- http://www.CNOinc.com/-- is a holding company. The company's insurance subsidiaries -- principally Bankers Life and Casualty Company, Colonial Penn Life Insurance Company and Washington National Insurance Company -- serve working American families and seniors by helping them protect against financial adversity and provide for a more secure retirement. CNO FINANCIAL: Seeks Dismissal of Plumbers and Pipefitters Suit --------------------------------------------------------------- CNO Financial Group, Inc. (fka Conseco, Inc.) has filed a motion to dismiss the matter Plumbers and Pipefitters Local Union No. 719 Pension Trust Fund, on behalf of itself and all others similarly situated v. Conseco, Inc., et al., Case No. 09-CIV-6966. On Aug. 6, 2009, a purported class action complaint was filed in the U.S. District Court for the Southern District of New York, on behalf of purchasers of Conseco Inc. common stock during the period from Aug. 4, 2005 to March 17, 2008. The complaint charges Conseco, Inc. and certain of its officers and directors with violations of the Securities Exchange Act of 1934. On June 2, 2010, the plaintiff filed a second amended complaint. The amended complaint alleges that, during the Class Period, the defendants issued numerous statements regarding the company's financial performance. As alleged in the complaint, these statements were materially false and misleading because the defendants misrepresented and/or failed to disclose the following adverse facts, among others: (i) that the company was reporting materially inaccurate revenue figures; (ii) that the company's reported financial results were materially misstated and did not present the true operating performance of the company; (iii) that the company's shareholders' equity was materially overstated during the Class Period, including the overstatement of shareholders' equity by $20.6 million at December 31, 2006; and (iv) as a result of the foregoing, the defendants lacked a reasonable basis for their positive statements about the Company, its corporate governance practices, its prospects and earnings growth. On Aug. 2, 2010, the company filed a motion to dismiss the amended complaint, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. CNO Financial Group, Inc. -- http://www.CNOinc.com/-- is a holding company. The company's insurance subsidiaries -- principally Bankers Life and Casualty Company, Colonial Penn Life Insurance Company and Washington National Insurance Company -- serve working American families and seniors by helping them protect against financial adversity and provide for a more secure retirement. CNO FINANCIAL: Continues to Oppose Certification in "Hansen" ------------------------------------------------------------ CNO Financial Group, Inc. (fka Conseco, Inc.) continues to oppose class certification in the matter Robert H. Hansen, an individual, and on behalf of all others similarly situated v. Conseco Insurance Company, an Illinois corporation f/k/a Conseco Annuity Assurance Company, Cause No. C0504726. The complaint was filed on Nov. 17, 2005, in the U.S. District Court for the Northern District of California. Plaintiff in this putative class action purchased an annuity in 2000 and is claiming relief on behalf of the proposed national class for alleged violations of the Racketeer Influenced and Corrupt Organizations Act; elder abuse; unlawful, deceptive and unfair business practices; unlawful, deceptive and misleading advertising; breach of fiduciary duty; aiding and abetting of breach of fiduciary duty; and unjust enrichment and imposition of constructive trust. On Jan. 27, 2006, a similar complaint was filed in the same court entitled Friou P. Jones, on Behalf of Himself and All Others Similarly Situated v. Conseco Insurance Company, an Illinois company f/k/a Conseco Annuity Assurance Company, Cause No. C06- 00537. Mr. Jones had purchased an annuity in 2003. Each case alleged that the annuity sold was inappropriate and that the annuity products in question are inherently unsuitable for seniors age 65 and older. On March 3, 2006, a first amended complaint was filed in the Hansen case adding causes of action for fraudulent concealment and breach of the duty of good faith and fair dealing. In an order dated April 14, 2006, the court consolidated the two cases under the original Hansen cause number and retitled the consolidated action: In re Conseco Insurance Co. Annuity Marketing & Sales Practices Litig. A motion to dismiss the amended complaint was granted in part and denied in part, and the plaintiffs filed a second amended complaint on April 27, 2007, which has added as defendants Conseco Services, LLC and Conseco Marketing, LLC. The court has not yet made a determination whether the case should go forward as a class action, and the company intends to oppose any form of class action treatment of these claims. Plaintiffs filed their motion for class certification on June 7, 2010. The company's motion in opposition was due to be filed by Aug. 21, 2010. The hearing on the motion for class certification was set for Sept. 10, 2010, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. CNO Financial Group, Inc. -- http://www.CNOinc.com/-- is a holding company. The company's insurance subsidiaries -- principally Bankers Life and Casualty Company, Colonial Penn Life Insurance Company and Washington National Insurance Company -- serve working American families and seniors by helping them protect against financial adversity and provide for a more secure retirement. CNO FINANCIAL: Continues to Defend "Yue" Suit in California ----------------------------------------------------------- CNO Financial Group, Inc. (fka Conseco, Inc.) continues to defend the matter Celedonia X. Yue, M.D. on behalf of the class of all others similarly situated, and on behalf of the General Public v. Conseco Life Insurance Company, successor to Philadelphia Life Insurance Company and formerly known as Massachusetts General Life Insurance Company, Cause No. CV08-01506 CAS. The suit was filed on March 4, 2008, in the U.S. District Court for the Central District of California. Plaintiff in this putative class action owns a Valulife universal life policy insuring the life of Ruth S. Yue originally issued by Massachusetts General Life Insurance Company in 1995. Plaintiff is claiming breach of contract on behalf of the proposed national class and seeks injunctive and restitutionary relief pursuant to California Business & Professions Code Section 17200 and declaratory relief. The putative class consists of all owners of Valulife and Valuterm universal life insurance policies issued by either Massachusetts General or Philadelphia Life and that were later acquired and serviced by Conseco Life. Plaintiff alleges that members of the class will be damaged by increases in the cost of insurance that are set to take place in the twenty first policy year of Valulife and Valuterm policies. No such increases have yet been applied to the subject policies, and none is scheduled to take effect until the latter half of 2010 when the oldest of these policies reaches its twenty-first anniversary. Plaintiff filed a motion for certification of the class and on Dec. 7, 2009, the court granted that motion. The case was set for trial commencing Sept. 14, 2010, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. CNO Financial Group, Inc. -- http://www.CNOinc.com/-- is a holding company. The company's insurance subsidiaries -- principally Bankers Life and Casualty Company, Colonial Penn Life Insurance Company and Washington National Insurance Company -- serve working American families and seniors by helping them protect against financial adversity and provide for a more secure retirement. CNO FINANCIAL: Summary Judgment Motion on (B)(2) Class Pending -------------------------------------------------------------- The motion of the plaintiffs for summary judgment on the (B)(2) Florida state class alleging injunctive relief, remains pending. On Dec. 8, 2008, a purported Florida state class action was filed in the U.S. District Court for the Southern District of Florida, Sydelle Ruderman individually and on behalf of all other similarly situated v. Washington National Insurance Company, Case No. 08- 23401-CIV-Cohn/Selzer. In the complaint, plaintiff alleges that the inflation escalation rider on her policy of long-term care insurance operates to increase the policy's lifetime maximum benefit, and that Washington National breached the contract by stopping her benefits when they reached the lifetime maximum. The company takes the position that the inflation escalator only affects the per day maximum benefit. Plaintiffs filed their motion for class certification, and the motion has been fully briefed by both sides. The court has not yet ruled on the motion or set it for hearing. Additional parties have asked the court to allow them to intervene in the action, and the existing parties opposed their motion. On Jan. 5, 2010, the court granted the motion to intervene and granted the plaintiff's motion for class certification. The court certified a (B) (3) Florida state class alleging damages and a (B) (2) Florida state class alleging injunctive relief. The parties have reached a settlement in principle of the (B) (3) class. The plaintiffs filed a motion for summary judgment as to the (B) (2) class, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. CNO Financial Group, Inc. -- http://www.CNOinc.com/-- is a holding company. The company's insurance subsidiaries -- principally Bankers Life and Casualty Company, Colonial Penn Life Insurance Company and Washington National Insurance Company -- serve working American families and seniors by helping them protect against financial adversity and provide for a more secure retirement. CNO FINANCIAL: Continues to Oppose Certification in "Brady" ----------------------------------------------------------- CNO Financial Group, Inc. (fka Conseco, Inc.) continues to oppose class certification in the matter Cedric Brady, et. al. individually and on behalf of all other similarly situated v. Conseco, Inc. and Conseco Life Insurance Company Case No. 3:08-cv-05746. The purported class action was filed on Dec. 24, 2008, in the U.S. District Court for the Northern District of California. In their complaint, plaintiffs allege that Conseco Life and Conseco, Inc. committed breach of contract and insurance bad faith and violated various consumer protection statutes in the administration of various interest sensitive whole life products sold primarily under the name "Lifetrend" by requiring the payment of additional cash amounts to maintain the policies in force. On April 23, 2009, the plaintiffs filed an amended complaint adding the additional counts of breach of fiduciary duty, fraud, negligent misrepresentation, conversion and declaratory relief. On May 29, 2009, Conseco, Inc. and Conseco Life filed a motion to dismiss the amended complaint. On July 29, 2009, the court granted in part and denied in part the motion to dismiss. The court dismissed the allegations that Conseco Life violated various consumer protection statutes, the breach of fiduciary duty count, and dismissed Conseco, Inc. for lack of personal jurisdiction. On Oct. 15, 2009, Conseco Life filed a motion with the Judicial Panel on Multidistrict Litigation, seeking the establishment of an MDL proceeding consolidating this case and the McFarland case into a single action. On Feb. 3, 2010, the Judicial Panel on MDL ordered this case be consolidated for pretrial proceedings. On July 7, 2010, plaintiffs filed an amended motion for class certification of a nationwide class and a California state class. The company filed its motion in opposition on July 21, 2010, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. CNO Financial Group, Inc. -- http://www.CNOinc.com/-- is a holding company. The company's insurance subsidiaries -- principally Bankers Life and Casualty Company, Colonial Penn Life Insurance Company and Washington National Insurance Company -- serve working American families and seniors by helping them protect against financial adversity and provide for a more secure retirement. CNO FINANCIAL: Continues to Oppose Certification in "McFarland" --------------------------------------------------------------- CNO Financial Group, Inc. (fka Conseco, Inc.) continues to oppose class certification in the matter Bill W. McFarland, and all those similarly situated v. Conseco Life Insurance Company, Case No. 3:09-cv-598-J-32MCR. The purported class action was filed on July 2, 2009, in the U.S. District Court for the Middle District of Florida. In his complaint, plaintiff alleges that Conseco Life committed breach of contract and has been unjustly enriched in the administration of various interest sensitive whole life products sold primarily under the name "Lifetrend." The plaintiff seeks declaratory and injunctive relief, compensatory damages, punitive damages and attorney fees. On Oct. 15, 2009, Conseco Life filed a motion with the Judicial Panel on Multidistrict Litigation, seeking the establishment of an MDL proceeding consolidating this case and the Brady case into a single action in the Northern District of California Federal Court. On Feb. 3, 2010, the Judicial Panel on MDL ordered this case be consolidated for pretrial proceedings in the Northern District of California Federal Court. On July 7, 2010, plaintiffs filed an amended motion for class certification of a nationwide class and a California state class. The company filed its motion in opposition on July 21, 2010, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. CNO Financial Group, Inc. -- http://www.CNOinc.com/-- is a holding company. The company's insurance subsidiaries -- principally Bankers Life and Casualty Company, Colonial Penn Life Insurance Company and Washington National Insurance Company -- serve working American families and seniors by helping them protect against financial adversity and provide for a more secure retirement. CNO FINANCIAL: No Hearing Date Yet in "Rowe" Certification Plea --------------------------------------------------------------- A hearing date on the plaintiff's motion for class certification in the matter Samuel Rowe and Estella Rowe, individually and on behalf of themselves and all others similarly situated v. Bankers Life & Casualty Company and Bankers Life Insurance Company of Illinois, Case No. 09CV491, has not been set. On Jan. 26, 2009, a purported class action complaint was filed in the U.S. District Court for the Northern District of Illinois, The plaintiffs are alleging violation of California Business and Professions Code Sections 17200 et seq. and 17500 et seq., breach of common law fiduciary duty, breach of implied covenant of good faith and fair dealing and violation of California Welfare and Institutions Code Section 15600 on behalf of the proposed national class and seek injunctive relief, compensatory damages, punitive damages and attorney fees. The plaintiff alleges that the defendants used an improper and misleading sales and marketing approach to seniors that fails to disclose all facts, misuses consumers' confidential financial information, uses misleading sales and marketing materials, promotes deferred annuities that are fundamentally inferior and less valuable than readily available alternative investment products and fails to adequately disclose other principal risks including maturity dates, surrender penalties and other restrictions which limit access to annuity proceeds to a date beyond the applicants actuarial life expectancy. Plaintiffs have amended their complaint attempting to convert this from a California only class action to a national class action. In addition, the amended complaint adds causes of action under the Racketeer Influenced and Corrupt Organization Act; aiding and abetting breach of fiduciary duty and for unjust enrichment. On Nov. 20, 2009, Bankers Life filed a motion to dismiss the plaintiff's RICO claims. Plaintiffs filed their motion for class certification on July 16, 2010. The company's motion in opposition was due to be filed by Sept. 8, 2010. A hearing date on the motion for class certification has not been set, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. CNO Financial Group, Inc. -- http://www.CNOinc.com/-- is a holding company. The company's insurance subsidiaries -- principally Bankers Life and Casualty Company, Colonial Penn Life Insurance Company and Washington National Insurance Company -- serve working American families and seniors by helping them protect against financial adversity and provide for a more secure retirement. COMPELLENT TECH: Continues to Defend Two Suits in Minnesota ----------------------------------------------------------- Compellent Technologies, Inc., continues to defend two purported securities class actions pending in the U.S. District Court for the District of Minnesota. The suits were filed on April 14 and 15, 2010, respectively, naming the company and certain of its executive officers as defendants. The lawsuits allege that the defendants made materially false or misleading public statements about the company's business and prospects in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The plaintiffs seek to represent a class of investors who purchased the company's common stock between Oct. 28, 2009 and April 7, 2010, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. Compellent Technologies, Inc. -- http://www.compellent.com/-- provides Fluid Data storage solutions that automate the movement and management of data at a granular level, enabling organizations to constantly adapt to change, slash costs and secure information against downtime and disaster. This patented, built-in storage intelligence delivers significant efficiency, scalability and flexibility. With an all-channel sales network in 35 countries, Compellent is one of the fastest growing enterprise storage companies in the world. CORINTHIAN COLLEGES: Accused in Utah Suit of Defrauding Students ---------------------------------------------------------------- Courthouse News Service reports that students claim that Corinthian Colleges dba Everest College defrauded them about its accreditation, costs, and transferability of credits, in a class action in Salt Lake County Court. A copy of the Complaint in Miller, et al. v. Corinthian Colleges, Inc., et al., Case No. 100918220 (Utah Dist. Ct., Salt Lake City Cty.), is available at: http://www.courthousenews.com/2010/09/27/CollegeCA.pdf The Plaintiffs are represented by: Randall K. Spencer, Esq. Matthew R. Howell, Esq. FILLMORE SPENCER LLC 3301 North University Ave. Provo, UT 84604 Telephone: 801-426-8200 E-mail: rspencer@slaw.com - and - Jonathan K. Tycko, Esq. Melanie Williamson, Esq. TYCKO & ZAVAREEI LLP 2000 L St., N.W., Suite 808 Washington, DC 20036 Telephone: 202-973-0900 E-mail: jtycko@tzlegal.com mwilliamson@tzlegal.com DEPUY ORTHOPAEDICS: Burg Simpson Files Class Suit Over Implants --------------------------------------------------------------- Burg Simpson Eldredge Hersh & Jardine, P.C., one of the nations' leading plaintiff litigation law firms, has filed a class action lawsuit in Ohio against DePuy Orthopaedics, Inc. on behalf of all United States citizens who received an implant of the ASR XL Acetabular System hip replacement. On August 24, 2010, DePuy Orthopaedics, Inc., a subsidiary of Johnson & Johnson (NYSE: JNJ), announced a voluntary recall of its ASR(TM) XL Acetabular System hip replacement, after a report published in Britain revealed an unacceptable failure rate of the device, resulting in revision surgery for 13 percent of patients within five years. Individuals represented by Burg Simpson are seeking answers to a number of questions including, whether DePuy should have known of the defects in the device prior to its sale and implant in patients, and whether DePuy failed to provide timely and adequate post-market warnings of the health risks associated with the its ASR(TM) XL Acetabular System. "Hip replacement surgery is among the most painful and disruptive surgeries an individual may have to endure. Once is certainly enough, but to undergo the procedure twice, and as a result of a defective implant is almost unimaginable," said Seth A. Katz, Burg Simpson shareholder, and one of several attorneys working on this case. Mr. Katz continues, "When medical devices such as DePuy's ASR XL Acetabular System fail, the impact on a patient's life can be devastating. Given the large number of devices recalled, it is conceivable that thousands of individuals across the United States may unknowingly need revision surgery, even if they are currently not experiencing any pain or discomfort." Although the company announced it will reimburse "reasonable medical expenses" to patients who sign releases providing DePuy complete access to their private medical records, the "offer" may be misleading, according to Burg Simpson shareholder Janet G. Abaray. "In our opinion, DePuy's 'offer' may deceive potential claimants into believing that the company has actually agreed to advance or reimburse their costs for medical monitoring or revision surgery. In fact, no specific offer to pay medical costs has been made and no specific plan for reimbursement has been announced. Moreover, DePuy has stated that before reimbursement of expenses will be provided, it will review the patient's medical records to determine if the patient meets DePuy's criteria for payment. According to DePuy, the medical records must confirm that the revision is related to the ASR recall and 'not some other type of cause, such as a traumatic fall.' Blaming the device failure on a fall, or another cause, such as physician error, patient misuse, pre-existing condition or underlying diseases is a standard litigation defense in these types of cases. Thus a patient who releases medical records to DePuy may do nothing but provide DePuy with a jump start on litigation defenses." Burg Simpson's defective medical device attorneys have successfully litigated hundreds of defective artificial joint replacement cases over the last 30 years in state and federal courts and in the Multi-District Litigation (MDL) arena. Anyone who has received a DePuy hip replacement in the last seven years and is concerned about the potential health risks should, in the first instance, contact their physician. With offices in Denver, Cincinnati, Cody, and Phoenix, Burg Simpson Eldredge Hersh & Jardine, P.C., is a firm of award winning national trial lawyers, practicing in the areas of personal injury, class action, medical malpractice, dangerous drug litigation, defective products, insurance bad faith, employment law, commercial and securities litigation. DIAL CORP: Accused in Illinois Suit of Deceptive Advertising ------------------------------------------------------------ Joe Harris at Courthouse News Service reports that a federal class action claims Dial Corp. defrauds consumers about its Dial Complete soap by falsely claiming that it "'kills 99.99% of germs', is the '#1 Doctor Recommended' brand of antibacterial liquid hand wash and 'kills more germs than any other liquid hand soap'". The complaint states: "Through its extensive and comprehensive nationwide marketing campaign, defendant claims that Dial Complete 'kills 99.99% of germs', is the '#1 Doctor Recommended' brand of antibacterial liquid hand wash and 'kills more germs than any other liquid hand soap', when in actuality, it does not, a fact which Dial knew and purposely misrepresented and failed to disclose to consumers. To this day, Dial has taken no meaningful steps to clear up consumer misconceptions regarding its product." Named plaintiff David Walls claims there are no reliable studies that show Dial Complete lives up to these claims. The class wants Dial enjoined from continuing its deceptive advertising, disgorgement and damages for consumer fraud and deceptive business practices. A copy of the Complaint in Walls v. The Dial Corporation, Case No. 10-cv-00734 (S.D. Ill.), is available at: http://www.courthousenews.com/2010/09/27/Dial.pdf The Plaintiff is represented by: Eric D. Holland, Esq. Steven J. Stolze, Esq. HOLLAND GROVES SCHNELLER & STOLZE, LLC 300 North Tucker Blvd., Suite 801 St. Louis, MO 63101 Telephone: 314-241-8111 E-mail: eholland@allfela.com DICK'S SPORTING GOODS: Accused of Not Paying Overtime ----------------------------------------------------- Courthouse News Service reports that Dick's Sporting Goods stiffs workers for overtime and other wages, a class action claims in Middlesex County Court, Woburn, Mass. This is the 20th class action labor complaint filed against Dick's this month, in courts around the country. A copy of the Complaint in Lenahan, et al. v. Dick's Sporting Goods, Inc., et al., Case No. 10-3602 (Mass. Super. Ct., Middlesex Cty.), is available at: http://www.courthousenews.com/2010/09/27/Dicks.pdf The Plaintiffs are represented by: Jody L. Newman, Esq. DWYER & COLLORA, LLP 600 Atlantic Ave. Boston, MA 02210-2211 Telephone: 617-371-1000 E-mail: jnewman@dwyercollora.com - and - Patrick J. Solomon, Esq. Peter J. Glennon, Esq. THOMAS & SOLOMON LLP 693 East Ave. Rochester, NY 14607 Telephone: 585-272-0540 E-mail: psolomon@theemploymentattorneys.com pglennon@theemploymentattorneys.com HEARTLAND PAYMENT: Final Approval of Settlement Remains Pending --------------------------------------------------------------- The final approval of a settlement agreement resolving a suit against Heartland Payment Systems, Inc., remains pending in the U.S. District Court for the Southern District of Texas. The company has had several lawsuits filed against it and additional lawsuits may be filed. These include lawsuits which assert claims against the company by cardholders (including various putative class actions seeking in the aggregate to represent all cardholders in the United States whose transaction information is alleged to have been placed at risk in the course of the Processing System Intrusion), and banks that issued payment cards to cardholders whose transaction information is alleged to have been placed at risk in the course of the Processing System Intrusion (including various putative class actions seeking to represent all financial institutions that issued payment cards to cardholders whose transaction information is alleged to have been placed at risk in the course of the Processing System Intrusion), seeking damages allegedly arising out of the Processing System Intrusion and other related relief. The actions generally assert various common-law claims such as claims for negligence and breach of contract, as well as, in some cases, statutory claims such as violation of the Fair Credit Reporting Act, state data breach notification statutes, and state unfair and deceptive practices statutes. The putative cardholder class actions seek various forms of relief including damages, injunctive relief, multiple or punitive damages, attorneys' fees and costs. The putative financial institution class actions seek compensatory damages, including recovery of the cost of issuance of replacement cards and losses by reason of unauthorized transactions, as well as injunctive relief, attorneys' fees and costs. On June 10, 2009, the Judicial Panel on Multidistrict Litigation entered an order centralizing the class action cases for pre-trial proceedings before the U.S. District Court for the Southern District of Texas, under the caption In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, MDL No. 2046, 4:09-md-2046. On Aug. 24, 2009, the court appointed interim co-lead and liaison counsel for the financial institution and consumer plaintiffs. On Sept. 23, 2009, the financial institution plaintiffs filed a Master Complaint in the MDL proceedings, which the company moved to dismiss on Oct. 23, 2009. Briefing on that motion to dismiss concluded on Feb. 1, 2010 and the motion remains pending. On Dec. 18, 2009, the company and interim counsel for the consumer plaintiffs filed with the Court a proposed settlement agreement, subject to court approval, of the consumer class action claims. On May 3, 2010, the Court entered an order preliminarily certifying the settlement class, authorizing notice to the class to proceed, and scheduling a fairness hearing for Dec. 10, 2010, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. Heartland Payment Systems, Inc. -- http://HeartlandPaymentSystems.com/-- the fifth largest payments processor in the United States, delivers credit/debit/prepaid card processing, gift marketing and loyalty programs, payroll, check management and related business solutions to more than 250,000 business locations nationwide. A FORTUNE 1000 company, Heartland is the founding supporter of The Merchant Bill of Rights, a public advocacy initiative that educates merchants about fair credit and debit card processing practices. The company is also a leader in the development of end-to-end encryption technology designed to protect cardholder data, rendering it useless to cybercriminals. HEARTLAND PAYMENT: Continues to Defend "McInerney/Zand" Suit ------------------------------------------------------------ Heartland Payment Systems, Inc., continues to defend the matter Ryan McInerney, Hossein Vazir Zand v. Heartland Payment Systems, Inc., pending in the Superior Court of California, County of San Diego. On Dec. 16, 2008, a putative class action was filed against the company in the Superior Court of California, County of San Diego. The plaintiffs purport to represent a putative class of individuals who allegedly were not reimbursed by the company for business expenses and whose compensation was allegedly reduced for their costs of doing business. The plaintiffs seek unspecified monetary damages, penalties, injunctive and declaratory relief, and attorneys' fees and costs. No updates were reported in the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2010. Heartland Payment Systems, Inc. -- http://HeartlandPaymentSystems.com/-- the fifth largest payments processor in the United States, delivers credit/debit/prepaid card processing, gift marketing and loyalty programs, payroll, check management and related business solutions to more than 250,000 business locations nationwide. A FORTUNE 1000 company, Heartland is the founding supporter of The Merchant Bill of Rights, a public advocacy initiative that educates merchants about fair credit and debit card processing practices. The company is also a leader in the development of end-to-end encryption technology designed to protect cardholder data, rendering it useless to cybercriminals. IOWA: Judge Grants Class Action Status to Race Discrimination Suit ------------------------------------------------------------------ Associated Press writer Michael J. Crumb reports a judge granted class-action status Tuesday for a lawsuit brought by almost three dozen job applicants who claim they were denied state positions because they are black. The lawsuit, originally filed in 2007, now lists 32 plaintiffs who allege racial discrimination when they applied for a state job or sought a promotion from their existing jobs. Polk County District Court Judge Robert Blink approved the class- action status, which could open it to far more plaintiffs. Thomas Newkirk, the Des Moines attorney who filed the lawsuit, said the case seeks to deal with varying degrees of discrimination seen in state government. "It's about identifying the nature of bias or discrimination against African Americans and how it acts as a barrier to employment in a large employment system, in this case, the state of Iowa," Mr. Newkirk said. "It looks to deal with the large system with a lot of people who have different degrees or attitudes toward African Americans that can impact their decision making in a negative way." The case was initially filed against the state and Iowa Workforce Development with 14 plaintiffs. It has grown over the past three years and expanded the number of state agencies where discrimination allegedly occurred. Those additional agencies include the departments of transportation, corrections, human services, administrative services and the Executive Branch. A news release issued by Newkirk indicated the case encompasses more than 20,000 employment applications and potentially covers thousands of black Iowans who encountered discrimination. Deputy Iowa Attorney General Jeff Thompson says his office encouraged the certification of the case. He says it allows the case to move forward without delay. "We think it's a good result and we encourage the judge to do it exactly like he did," Mr. Thompson said. Mr. Thompson said both sides agreed to focus on one claim in the class-action case and let the others be decided individually. He said the case address what he called the "disparate impact claim." That deals with practices that may not intentionally discriminate but create a discriminatory effect. Other claims by plaintiffs will be addressed individually, Mr. Thompson said. Trial in the case is set for Sept. 12, 2011. KENEXA CORP: Pennsylvania District Court Dismisses Class Action --------------------------------------------------------------- Kenexa(R), a global provider of business solutions for human resources, Tuesday disclosed that on Monday, September 27, 2010, the United States District Court for the Eastern District of Pennsylvania dismissed the class action lawsuit, Case No. 2:09-cv-02642-JS, filed on June 11, 2009. "We are pleased with the decision of the court to dismiss the class action lawsuit, which supports our position that the lawsuit was without merit," said Rudy Karsan, Chief Executive Officer of Kenexa. NETEZZA CORP: Being Sold to IBM for Too Little, Mass. Suit Says --------------------------------------------------------------- Courthouse News Service reports that Netezza is selling itself to International Business Machines too cheaply, through an unfair process, for $27 a share or $1.7 billion, shareholders say in a class action in Middlesex County Court, Woburn, Mass. A copy of the Complaint in Walker v. Netezza Corporation, et al., Case No. 10-3583 (Mass. Super. Ct., Middlesex Cty.), is available at: http://www.courthousenews.com/2010/09/27/SCA.pdf The Plaintiff is represented by: Peter A. Lagorio, Esq. SAXENA WHITE P.A. 63 Atlantic Ave. Boston, MA 02110 Telephone: 617-367-4200 - and - Stuart A. Davidson, Esq. Cullin A. O'Brien, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 E. Palmetto Park Rd., Suite 500 Boca Raton, FL 33432 Telephone: 561-750-3000 - and - Randall Baron, Esq. David Wissbroecker, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 65 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619-231-1058 NVIDIA CORP: Settles Suit Over Defective GPUs and MCPs in Laptops ----------------------------------------------------------------- A settlement of a class action lawsuit (The NVIDIA GPU Litigation, Case No. 08-cv-04312-JW) relates to the NVIDIA chips inside certain Dell, Hewlett-Packard, and Apple notebook computers. The lawsuit claims that NVIDIA sold defective Graphics Processing Units and Media and Communications Processors that affected the performance of some of the notebook computers in which they were incorporated. NVIDIA denies all allegations of wrongdoing and has asserted many defenses. The settlement is not an admission of wrongdoing. Who is Affected by this Class Action? All United States residents who purchased in the United States a version of one of the Dell, HP or Apple notebook computer models listed in the Table of Class Computers containing an NVIDIA MCP or GPU. These individuals are referred to as "Class Members" in this Notice. What Can You Get From the Proposed Settlement? Class Members who file an approved claim will be entitled to: 1. Replacement of the NVIDIA graphics processing unit or media and communications processor, which are referred to in this Notice as the "chips" if you purchased a version of certain models of notebook computers manufactured by Dell, Inc. or Apple Inc. containing one of the NVIDIA chips; or 2. A Replacement notebook computer similar in kind and value if you purchased a version of certain models of notebook computers manufactured by HP containing one of the NVIDIA chips; or 3. Reimbursement of amounts paid for repairs related to problems with the NVIDIA chips. NVIDIA will fund $2 million from which reimbursements will be made. The amount paid may depend on the number of reimbursement claims received. NVIDIA is providing these benefits to members of the class, and is funding the settlement. Dell, HP and Apple are not parties to this lawsuit. How Do You Receive a Benefit? You must first qualify for filing a claim, and then file an approved claim with supporting documentation during the Claim Period. To qualify for a replacement as described in numbers 1 and 2 above, your notebook computer must be one of the Dell, HP or Apple notebook computer models listed in the Table of Class Computers, contain an NVIDIA MCP or GPU, and be exhibiting one of the symptoms listed in the Table of Identified Symptoms. To qualify for a reimbursement as described in number 3 above, your notebook computer must be listed in the Table of Class Computers, contain an NVIDIA MCP or GPU, and must have been repaired because it was exhibiting one of the symptoms listed in the Table of Identified Symptoms. The Claim Period will begin after the Court grants final approval of the Settlement. Whether or not the Court has granted final approval, the Claim Period dates and further instructions for how to qualify and file a claim will be posted at the settlement website (www.NVIDIASettlement.com) and at the toll- free telephone support line (1-877-440-7557). Register Your Email Address To Receive an Alert When the Claim Period Begins. To receive an email alert when the Claim Period begins, between now and December 20, 2010, visit http://www.NVIDIASettlement.com/ and register your e-mail address. If you previously received an emailed notice about this settlement, there is no need to register. What Are Your Options? If you are a Class Member and you don't want to receive a replacement or reimbursement as described above and you don't want to be legally bound by the settlement, you must exclude yourself by November 5, 2010, or you won't be able to sue, or continue to sue, NVIDIA about the legal claims in this case. If you exclude yourself, you can't receive a replacement or reimbursement under this settlement. If you remain a Class Member, you may object to the settlement by November 5, 2010. The Full Notice describes how to exclude yourself or object. The Court will hold a hearing in this case (The NVIDIA GPU Litigation, Case No. 08-cv-04312-JW) on December 20, 2010, to consider whether to approve the settlement and attorneys' fees and expenses in the amount of $13 million. You may appear at the hearing, but you don't have to. For more details, call toll-free 1-877-440-7557, go to http://www.NVIDIASettlement.com/or write to: NVIDIA GPU Litigation Settlement Administrator P.O. Box 6177 Novato, CA 94948-6177 OVERHILL FARMS: "Agustiana" Suit in Discovery Phase --------------------------------------------------- The parties in the matter Agustiana, et al. v. Overhill Farms, are engaged in the discovery phase of the case. On July 1, 2009, Bohemia Agustiana, Isela Hernandez, and Ana Munoz filed a purported "class action" against the company in which they asserted claims for failure to pay minimum wage, failure to furnish wage and hour statements, waiting time penalties, conversion and unfair business practices. The plaintiffs are former employees who had been terminated one month earlier because they had used invalid social security numbers in connection with their employment with the company. They filed the case in Los Angeles County on behalf of themselves and a class which they say includes all non-exempt production and quality control workers who were employed in California during the four-year period prior to filing their complaint. The plaintiffs seek unspecified damages, restitution, injunctive relief, attorneys' fees and costs. The company filed a motion to dismiss the conversion claim, and the motion was granted by the court on February 2, 2010. The parties are engaged in the discovery phase of the case, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 27, 2010. Overhill Farms, Inc., manufactures high quality, prepared frozen food products for branded retail, private label, foodservice and airline customers. The company's product line includes entr�es, plated meals, bulk-packed meal components, pastas, soups, sauces, poultry, meat and fish specialties, and organic and vegetarian offerings. OVERHILL FARMS: Defends "Salinas" Suit in Los Angeles ----------------------------------------------------- Overhill Farms, Inc., defends the matter Alma Salinas, et al. v. Overhill Farms, pending in the Los Angeles County Superior Court. On May 12, 2010, Alma Salinas filed a purported "class action" in Los Angeles County Superior Court against the company in which she asserted claims on behalf of herself and all other similarly situated current and former production workers for failure to provide meal periods, failure to provide rest periods, failure to pay minimum wage, failure to make payments within the required time, unfair business practice in violation of Section 17200 of the California Business and Professions Code and Labor Code Section 2698 (known as the Private Attorney General Act). Salinas is a former employee who had been terminated because she had used an invalid social security number in connection with her employment with the company. Salinas seeks allegedly unpaid wages, waiting time penalties, PAGA penalties, interest and attorneys' fees, the amounts of which are unspecified, according to the company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 27, 2010. Overhill Farms, Inc., manufactures high quality, prepared frozen food products for branded retail, private label, foodservice and airline customers. The company's product line includes entr�es, plated meals, bulk-packed meal components, pastas, soups, sauces, poultry, meat and fish specialties, and organic and vegetarian offerings. SLM CORP: Judge Allows Suit Over Misstatements to Move Forward -------------------------------------------------------------- AboutLawsuits.com reports a federal judge has cleared the way for a shareholder Sallie Mae class action lawsuit to proceed involving allegations that the company misled investors about its financial health. Last week, U.S. District Judge William Pauley III in Manhattan ruled that the lawsuit, brought by SLM Venture against Sallie Mae, could move forward because plaintiffs had shown enough evidence to bring a case. SLM Venture is a joint venture created by families investing in Sallie Mae. The plaintiffs are seeking class action status to represent other Sallie Mae investors. Sallie Mae, whose official name is SLM Corp., faces a number of claims that it acted irresponsibly between January 2007 and September 2009 by expanding its private loans to students attending for-profit or non-traditional schools. During that time period, Sallie Mae's stock price dropped 57 percent. Plaintiffs say that the company perpetrated financial fraud by misrepresenting its private loan portfolio and underwriting standards, as well as inflated its profits. Judge Pauley dismissed a related suit brought by plaintiffs Jitandra Patel and Alex Cordero, however, saying that their lawsuit against Sallie Mae's employee savings and retirement plans could not go forward because neither plaintiff participated in, nor were beneficiaries of, the retirement plans themselves. He also dismissed lawsuits filed against C.E. Andrews, Sallie Mae's former president and Chief Executive Officer. Judge Pauley said that the plaintiff who filed those claims did not provide a motive or opportunity. SUNRISE MEDICAL: Recalls 20 Quickie(R) Shark Bikes -------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Sunrise Medical (US) LLC, of Fresno, Calif., announced a voluntary recall of about 20 Quickie(R) Shark Bikes. Consumers should stop using recalled products immediately unless otherwise instructed. The custom footrests can break, posing a risk of injury to the rider. No injuries or incidents have been reported. This recall involves Quickie(R) Shark bikes with custom footrests that are designed for use by disabled persons. Model numbers included in the recall are SB472900001 and SB471900001. Model and serials numbers are printed on the right side of the bike frame. Serial numbers included in the recall are: KS910634, KS933266, KS935245, KF130177, KF130177, KF138342, KF157355, KF182230, KF214063, KF214095, KF228670, KF230678, KF268500, KF271632, KF275166, KF341126, KF344298 and KF370981. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10756.html The recalled products were manufactured in Germany and sold through Sunrise Medical authorized dealers nationwide from March 2007 through October 2009 for about $4,300. Consumers should immediately stop using the bikes and contact Sunrise Medical or their Sunrise Medical dealer for instructions on how to obtain replacement footrests. For more information, contact Sunrise Medical at (888) 208-4901 anytime, or visit the firm's Web site at http://www.sunrisemedical.com/ USA: Black Farm Groups Demand "Immediate Action" on Funding ----------------------------------------------------------- From the National Sustainable Agriculture Coalition Web site: On Monday, September 27, the Network of Black Farm Groups and Advocates delivered a letter to all Senators urging "immediate action" regarding the passage of a measure providing funding for the settlement of Pigford vs. Vilsack, a class-action lawsuit filed by Black farmers against USDA more than a decade ago. The current measure, which has been passed by the House, calls for $1.25 billion to fund discrimination claims that were unresolved in the 1999 settlement, known as Pigford I, which paid about $1 billion in claims to 16,000 farmers. It is now up to the Senate to find a bill to which the Pigford II measure can be attached, and to secure this long-overdue settlement either before the fall recess or after the November general elections. Discussions are underway on a variety of possible budget cuts or revenue raisers that could offset the cost of the USDA settlement as well as a Native American discrimination settlement with the Department of the Interior. USDA and the Department of Justice announced the $1.25-billion settlement back in February, and despite President Obama calling the settlement "a just settlement" and a "priority" earlier this month, Congress has yet to bring this issue to a close. * Corporate Lawyers Balk at Class Action Disclosure Requirement --------------------------------------------------------------- Andrew Pugh, writing for The Lawyer, reports in-house lawyers in some of the US's biggest businesses are fighting plans that would force them to disclose potential losses from class action lawsuits. The proposals, which have been drawn up by the Financial Accounting Standards Board and which would apply to all publicly listed US companies, are set be put in place by this December. The driving principles behind the plans are to protect investors and promote greater transparency among the major financial institutions and corporations. The FASB argues that, by forcing businesses to disclose potential damages, investors would be in a better position to decide where to place their money and reduce their risk of losses. While the ruling sounds good enough on paper, general counsel fear that in reality it could produce the opposite effect and actually damage investors' ability to make an accurate assessment of a company's financial footing. The Association of Corporate Counsel (ACC) is at the forefront of the opposition to the plans. Its letter of objection to the FASB has been signed by more than 150 of the biggest companies in the US, including the likes of McDonald's, Bank of America, Citigroup and General Electric. That these companies are willing to oppose a plan aimed at satiating the populist appetite for greater transparency following the economic crisis illustrates the depth of their opposition. Their biggest concern is the potential impact on share prices. The FASB ruling relates to potential losses from class action lawsuits, even though many claims are settled for a fraction of the headline claim for damages. Corporate giants such as Walmart, for example, receive thousands of claims every year, many of them relating to so-called 'slip and fall' claims. Under the new proposals companies would be required to disclose potential losses that, on paper, could run into hundreds of millions of dollars, but in reality would be far smaller. "At the moment," explains ACC vice-president Susan Hackett, "companies only report claims if they believe they'll have a material impact on the bottom line, not those cases that include vastly overblown claims." Another big problem can arise when it comes to making the estimates. Companies will be forced to provide these far in advance of cases actually reaching court, when they still lack the means to assess thoroughly their credibility. Those opposed to the ruling claim that if they get the estimates wrong they could find themselves facing a second round of litigation if they are accused of misleading investors. Disclosing potential losses also forces companies to show their hands well in advance of any settlement discussions. When a company has gone public with a figure plaintiffs are unlikely to settle for a lower amount and are far more likely to increase their demands. "If you have a fairly substantial litigation portfolio, then this will put a huge amount of additional work and stress your way," says Ken Grady, general counsel at New York Stock Exchange-listed Wolverine Word Wide. "You'll be asked to make some extremely difficult calls. "I understand the need to provide more transparency for shareholders, but this could have the opposite effect -- this is taking place in a general climate of pushing for disclosure, whether there's any benefit to the investor or not." Irwin Shur, general counsel at Snap-on, a company with a turnover of more than $2.5 billion (GBP1.61 billion), agrees. "Investors are meant to be provided with materials that allow them to make informed decisions," he says, "but this tilts the balance in such a way that information could be disclosed that would suggest the company's in trouble when it isn't. "Disclosures are meant to give shareholders accurate information about how a company's performing, but this has gone so far that it would actually distort a company's performance, which in turn could lead to volatility in share prices." One group certain to benefit from the ruling is the plaintiff bar. Divulging potential losses would essentially give it a road map by which to navigate its strategy. If companies' quarterly results show their estimated losses moving either up or down, it gives plaintiffs a fairly good indication of what the companies are thinking. Mr. Shur adds: "You could have a situation where a claimant brings a claim of 'x' and says, 'you can either talk to me now or we can settle'. Rather than disclose a potential �100m lawsuit in their results, companies might instead decide to settle for GBP3 million." While it may be good news for plaintiffs, it is not necessarily the same for defence lawyers. In-house teams will be relying on outside counsel to help assess their potential losses, but that runs the risk of the courts later deeming these communications a waiver of the client-attorney privilege. The ACC believes this could actually deter management from engaging counsel on sensitive litigation matters to avoid this risk. The ACC's letter of objections states: "The proposal thus could have the unintended consequence of chilling full and frank discussions between companies and their counsel (in-house and external), to the detriment of the company client." The fact that outside counsel will be instructed to assess potential losses also opens them up to the threat of legal action if they prove to be wildly inaccurate or misleading. "The most disturbing thing of all," says Mr. Hackett, "is that nobody knows why they [the FASB] want to make these changes. Who was complaining about the current rules? No one. There was no group suggesting the rules were incomplete or broke. This is a solution in search of a problem." The new ruling could be in place by December 15. Dealing with the scope of the proposed changes will be a huge logistical challenge, with companies forced to assess and develop new disclosure processes. At a time when they are still dealing with fallout from the Dodd Frank Act, the timing could not be worse. While the ACC is hoping the FASB will abandon its plans, there are few signs that it will, which is why the ACC is also urging the FASB to at least delay its introduction. Surprisingly, several high-profile Wall Street litigators contacted by The Lawyer were unaware of the proposals. That will not be the case for much longer. Asbestos Litigation ASBESTOS UPDATE: Ben DuBose Speaks at Perrin Asbestos Conference ---------------------------------------------------------------- Ben DuBose, Esq., of DuBose Law Firm, PLLC, participated in a panel discussion at the Perrin Asbestos Litigation Conference: A National Overview and Outlook, Sept. 13, 2010 to Sept. 15, 2010, in San Francisco, according to a DuBose press release dated Sept. 23, 2010. Mr. DuBose was a member of the panel discussing "Household & Secondary Exposure -- Bystander and Idiopathic Cases." This conference provided a three-day in depth study of asbestos litigation with commentary from plaintiff and defense attorneys, judges, doctors, corporate counsel as well as insurance counsel. Mr. DuBose has represented mesothelioma victims from coast to coast for over a decade. Mr. DuBose said, "Sharing information that can assist other attorneys who are fighting for justice on behalf of their clients is rewarding. I've had the opportunity to help injured victims and their families throughout my career and want to pass that on." ASBESTOS UPDATE: Taiwanese Govt. to Ban Asbestos Use by 2020 ------------------------------------------------------------ According to the Focus Taiwan News Channel, the Taiwanese Environmental Protection Agency intends to ban the use of asbestos from all construction materials by the year 2020, the Mesothelioma Resource Center reports. Lin Chien-hui, the agency's director of the Department of Environmental Sanitation and Toxic Substance Management, told the news station that asbestos will be phased out over the next 10 years. By July 1, 2015, Mr. Lin said asbestos will no longer be allowed to be used in sealants or sealing materials. By July 1, 2020, asbestos will be banned from all construction materials, including floor and ceiling tiles, wall board and concrete. Taiwan follows the lead of the European Union nations that have banned chrysotile asbestos, because of its proven role as a carcinogen. ASBESTOS UPDATE: Pakistan Tribunal Wants Report by October 20 ------------------------------------------------------------- On Sept. 23, 2010, the Sindh Environmental Protection Tribunal of Pakistan ordered the "commission on uses of asbestos" to submit a comprehensive report of its findings about health affects of asbestos by Oct. 20, 2010, the Daily Times reports. The tribunal comprising only Senior Member (Legal) Abdul Karim Memon proceeded the complaint that unfavorable environmental conditions at a prominent pipe-making factory which was using "asbestos" in the production process had caused cancer to a worker. Haroon Ahmed, resident of Gulistan-e-Jauhar, had filed a complaint at SEPT that use of asbestos at the factory caused cancer to his brother, who later died of the ailment. On the previous hearing, the SEPT constituted a commission to investigate the use of asbestos in factories and submit a report on its health affects. When Mr. Memon asked about the commission's report from the Deputy District Prosecutor General, he informed the tribunal that "the commission had not completed the report." The commission included SDPI research fellow Dr. Mahmood Khan, and Prof. Dr. Noor Jahan. ASBESTOS UPDATE: Insulation to be Cleared From Lincoln Hospital --------------------------------------------------------------- Asbestos insulation boarding is scheduled to be removed from the maternity unit at Lincoln County Hospital in Lincolnshire, England, the Lincolnshire Echo reports. However, bosses at United Lincolnshire Hospitals Trust are reassuring the public there is a very low risk to new and expectant mums, babies and hospital staff. Built in 1966, the maternity unit used asbestos insulation boarding as fire protection and an opportunity has now arisen to remove the boarding from the service voids, situated behind the walls. Mike Speakman, Director of estates and facilities for ULHT, said this is because they need to replace its drainage system. He said tests reveal there is no trace whatsoever of asbestos in the air and the unit would be shut down if there was the slightest health concern. Mr. Speakman said all areas of the maternity unit containing asbestos insulation boarding are properly sealed off. Mr. Speakman said the work was being undertaken in consultation with the Health And Safety Executive (HSE). Inspector Sarah Jardine, for the HSE, told the Echo, "We are aware of the proposed work at the hospital and are meeting with them to discuss their plans." ASBESTOS UPDATE: $4MM Grant Awarded for Cleanup at Harvey Mall -------------------------------------------------------------- A US$4 million federal grant will pay for the demolition and asbestos cleanup of a Harvey, Ill., shopping mall that was the site of a famous car-chase in "The Blues Brothers" movie, The Associated Press reports. The money will clean up asbestos and remove debris from the Dixie Square Mall, which opened in 1965 but has been abandoned since the classic movie was made. On Sept. 23, 2010, Gov. Pat Quinn said the money will come from disaster recovery funds given to 41 Illinois counties after widespread flooding in 2008. The money will go to the South Suburban Mayors and Managers Association on behalf of the city of Harvey. ASBESTOS UPDATE: Donnell Dismisses Asbestos Lawsuit Filed v. UW --------------------------------------------------------------- Albany County District Judge Jeffrey Donnell, on Sept. 21, 2010, dismissed a series of actions filed by David Morse, a former University of Wyoming employee, who sought damages for allegedly being exposed to asbestos and subsequently fired in retaliation, laramieboomerang.com reports. Mr. Morse states he was employed by UW as a preventive maintenance technician from Aug. 18, 2008 to March 6, 2009. After receiving asbestos awareness training on Oct. 30, 2008, he said he discovered asbestos material in his work areas, and that supervisors were not responsive to his concerns. After filing OSHA complaints alleging discrimination and exposure to amosite and chrysotile asbestos, Mr. Morse was terminated from his position at UW on March 6, 2009. Mr. Morse claimed UW was negligent, "failed to exercise reasonable care" and violated the Wyoming Environmental Quality Act, and that he suffered "intentional infliction of emotional distress." He was seeking damages totaling US$500,000 and reinstatement as an employee of UW. In dismissing this claim, filed June 28, 2010, Judge Donnell found UW's asserted grounds for dismissal to be correct. ASBESTOS UPDATE: EAD Firm Raising Awareness for Asbestos Disease ---------------------------------------------------------------- EAD Solicitors, a law firm based in Liverpool, England, raises awareness of the rising levels of asbestos-related illness as it tackles an increasing number of claims for sufferers, HeatingandVentilating.net reports. "Asbestos was used so widely from the 1950s to the 1980s that the figures relating to linked illnesses are quite shocking," said solicitor Paul Currie of EAD, a specialist in asbestosis claims. Mr. Currie added, "For instance, the Health & Safety Executive, which describes asbestos as the 'hidden killer,' estimates that one in 17 carpenters born in the 1940s will die of mesothelioma, one of the most severe conditions. According to the HSE's predictions, deaths caused by asbestos will peak in the next five or six years." Some of the most hazardous occupations for contact with asbestos include lagging and insulation, demolition, building, painting and decoration, roofing, shipbuilding, welding, plumbing, electrical work, gas fitting and boiler making. ASBESTOS UPDATE: Sinisgalli Owner Charged for Asbestos Breaches --------------------------------------------------------------- The owner of Sinisgalli Inc., a Rochester, N.Y. demolitions firm and tied to bribery of a city official and illegal dumping of asbestos-laden material, faces federal charges of tax evasion and failing to file notice of asbestos work, the Democrat and Chronicle reports. Information outlining the charges was filed in U.S. District Court. Such a filing can precede a plea, but none is scheduled. Sinisgalli Inc. has been at the center of a city, state and federal probe begun in mid-2008, focused initially on the handling of city demolition contracts and alleged illegal dumping of the debris. As that investigation turned to Louis Sinisgalli, personally, records showed authorities were probing possible mail and wire fraud, and his alleged failure to file federal income tax and corporate tax returns the five years while his company took in more than US$8 million, including US$5 million from the city. The information states that Mr. Sinisgalli failed to file an income tax return on or before April 15, 2008, owing US$51,738 on about US$169,045 taxable income. An additional charge alleges Mr. Sinisgalli failed to notify the Environmental Protection Agency prior to removing asbestos during the demolition of a commercial building at 480 Emerson St. Three Sinisgalli employees and a former city inspector previously pleaded guilty to charges. ASBESTOS UPDATE: Wallington Local to Get Payout from Ex-Employer ---------------------------------------------------------------- Helen Wickings, of Wallington, London, is looking to claim compensation from Her Majesty's Revenue and Customs (f/k/a Inland Revenue), which she alleges negligently exposed her to asbestos, the Croydon Guardian reports. Mrs. Wickings is calling on other former employees to come forward with information about asbestos at the Croydon Four and Epsom branches between 1961 and 1996. The 65-year-old Mrs. Wickings was diagnosed with the asbestos- related cancer mesothelioma in April 2010. She said she believes she was regularly exposed to asbestos during a 40-year career based at the IR offices in Croydon and Epsom. Mrs. Wickings, who now cares for her disabled husband Ernie, has vowed to spend her remaining months fighting for compensation to pay for the 86-year-old's care. Mrs. Wickings believes she was first exposed to asbestos in the IR's Croydon office in the 1970s, when she took frequent trips to the building's archives among dusty folders and paperwork. Her potential exposure continued in Epsom in the 1980s when her job was to read fuel meters in the building's boiler room among old and exposed pipes. Mrs. Wickings recalls a flood in the room led to outside contractors being called in to remove asbestos, which they did using protective suits and masks. A second stint in Croydon between 1988 and 1996 involved Mrs. Wickings making repeated trips to a store cupboard which was sealed off for some time following a fire, a situation she also believes was down to asbestos. ASBESTOS UPDATE: Pusey's Death Related to Second-Hand Exposure -------------------------------------------------------------- An inquest at Portsmouth, England, heard that the death of Sylvia Pusey, of Emsworth, England, was related to exposure to asbestos from her father's overalls when she was a child, The Portsmouth News reports. The 62-year-old Mrs. Pusey was taken to Queen Alexandra hospital, in Cosham because of breathing problems last November 2010. She later died in hospital from mesothelioma. Mrs. Pusey, a retired secretary, was raised in Fawley, near Southampton, where her father worked at Fawley Power Station. Her widower John Pusey said, "When my wife was three her father worked at Fawley Power Station from 1950 to 1975 and was primarily exposed to asbestos. He used to come home with his work overalls on and then he'd leave them on in the house after he had got in. "He would sit in the living room with the family wearing them and not realizing the dangers of asbestos. I guess no one did then as there wasn't much awareness of it. I don't know if her father ever realized." Mrs. Pusey was diagnosed with mesothelioma in August 2007. Robert Stone, deputy coroner for Portsmouth and South East Hampshire, had listened to the evidence presented to him at the inquest. He said, "I must say with all that I've heard I record Sylvia's death as a result of an industrial disease." ASBESTOS UPDATE: Life Tech. Fined $7,940 for Breach at Hopkinton ---------------------------------------------------------------- Life Technologies Corporation, a Delaware-based corporation, has been assessed a US$7,940 penalty by the Massachusetts Department of Environmental Protection for violations of state asbestos regulations that occurred during work conducted at its former facility located at 94-96 South Street in Hopkinton, Mass., according to a MassDEP press release dated Sept. 27, 2010. MassDEP personnel observed the violations during an inspection of the site conducted in August 2009. Under the terms of the negotiated settlement, MassDEP suspended US$1,940 of the assessed penalty, provided that the Company completes a Supplemental Environmental Project. During the August 2009 inspection, MassDEP inspectors discovered pieces of floor tiles coated with asbestos-containing adhesive uncontained in an open-top roll off container located in the parking lot at the site. The Company, which was vacating the facility, had the floor tiles removed as part of efforts to return the leased space to its pre-occupancy condition. The Company was cited for: -- Failing to notify MassDEP of a demolition/renovation operation involving asbestos-containing materials; -- Improper removal, handling, packaging and storage of asbestos-containing materials; and -- Allowing asbestos-containing materials to be handled in a manner that caused or contributed to a condition of air pollution at the site. Upon discovery of the violations, MassDEP required the Company to hire a Massachusetts Division of Occupational Safety-licensed asbestos contractor to properly remove, package and dispose of all the asbestos containing waste at the site. ASBESTOS UPDATE: 2 Firms Fined $49,448 Each for Lowell Breaches --------------------------------------------------------------- The Massachusetts Department of Environmental Protection penalized two companies, Tremont Yard, LLC, and Soucy Industries, Inc., a total of US$49,448 each for environmental and asbestos violations that occurred during the redevelopment of 257 Father Morrissette Boulevard in Lowell, Mass., according to a MassDEP press release dated Sept. 23, 2010. Tremont Yard had entered into a lease with the Commonwealth of Massachusetts to demolish existing structures and redevelop the property, while Soucy Industries was hired by Tremont Yard, LLC, to perform demolition, renovation and construction activities at the property. William Soucy serves as registered agent and manager for Tremont Yard, and also as resident agent and president of Soucy Industries. Richard Chalpin, director of MassDEP's Northeast Regional Office in Wilmington, said, "Redevelopment of old industrial sites like this one play a key role in economic recovery, but environmental protection safeguards are essential. Developers who push forward without the proper protections in place can jeopardize public health and safety." Tremont Yard, LLC, received an Environmental Notification Form certificate from the Executive Office of Energy and Environmental Affairs on March 12, 2008, prior to initiating the demolition work. Language in the certificate, issued under the Massachusetts Environmental Policy Act (MEPA), specifically reminded Tremont Yard, LLC that any work at the site must comply with all applicable environmental regulations pertaining to solid waste, air quality and waste site cleanup. However, after receiving a complaint on July 6, 2008, concerning the visible presence of oil on the surface water of the Western Canal adjacent to the property, MassDEP inspected the site several times and found that actions taken at the site resulted in the following violation of state regulations: -- Air Quality. Neither Tremont Yard nor Soucy Industries notified MassDEP prior to demolishing the old mill buildings, as is required. Asbestos-containing materials were also managed improperly during the demolition. -- Surface Water Discharge. A pump was left unattended to dewater the lower foundation of the existing structure during demolition activities and this resulted in the discharge of fuel oil to the surface water of the Western Canal. -- Waste Site Cleanup. Neither Tremont Yard nor Soucy Industries reported a release of petroleum tar that occurred when several metal drums were crushed during the demolition work. Neither party took appropriate steps to expeditiously clean up the subsequent release of petroleum tar either. Tremont Yard, LLC, the lease-holder, has agreed to pay US$36,000 of the US$49,448 penalty, and MassDEP has agreed to suspend US$13,448 provided Tremont does not commit additional environmental violations or acts of non-compliance. Soucy Industries will have the entire US$49,448 penalty suspended provided the contractor does not commit additional environmental violations or acts of non-compliance. ASBESTOS UPDATE: Appeals Court Overrules Judge Stack in CSX Case ---------------------------------------------------------------- Fifth District appellate judges, on Sept. 21, 2010, ruled that Madison County Circuit Judge Daniel Stack kept a mesothelioma lawsuit (involving CSX Transportation) that belonged in Michigan, The Madison/St. Clair Record reports. Two of three judges directed Judge Stack to grant a motion from CSX Transportation and 34 other defendants for a more convenient forum. Justice James Wexstten wrote that "residents of Illinois should not be burdened with jury duty given the fact that the action did not arise in, and has no relation to, their state." Claudious Laverty of Texas filed the suit in 2007, individually and as administrator of the estate of late husband Thomas Laverty. Mr. Laverty resided in Texas when he died, after living in Ohio and Michigan. He worked for Chesapeake and Ohio Railroad, which merged with Seaboard Coast Line in 1980 to form CSX. Mrs. Laverty's lawyer, Michael Bilbrey of Edwardsville, argued that the suit caused no inconvenience because CSX maintained offices and trackage rights in Illinois. Judge Stack agreed, but CSX prevailed at the Fifth District. Judge Wexstten found the railroad's presence in Illinois sufficient to fix venue but not significant in determining convenience. He wrote that jurors might have to view the injury site. He added that on appeal, Mrs. Laverty suggested she might identify an expert witness in Illinois. Judge Wexstten supplied statistics showing Madison County's docket carried 15,709 pending civil cases in 2007, while Saginaw County's docket carried 780. Justice Thomas Welch concurred, and Justice Richard Goldenhersh dissented. Judge Goldenhersh wrote that CSX did not meet its burden to show an alternative forum was more convenient than the one the plaintiff chose. Kurt Reitz, Esq., Erick VanDorn Esq., and Heath Hooks, Esq., all of Thompson Coburn in Belleville, represented CSX. Robert Ramsey, Esq., represented Mrs. Laverty along with Mr. Bilbrey. ASBESTOS UPDATE: 7 Hazardous Waste Sites Added to Superfund NPL --------------------------------------------------------------- The U.S. Environmental Protection Agency is adding seven new hazardous waste sites that pose risks to human health and the environment to the National Priorities List (NPL) of Superfund sites, according to an EPA press release dated Sept. 27, 2010. Superfund is the federal program that investigates and cleans up the most complex, uncontrolled or abandoned hazardous waste sites in the country. Contaminants found at the sites include arsenic, asbestos, barium, cadmium, chromium, copper, dichloroethene (DCE), lead, mercury, polynuclear aromatic hydrcarbons (PAHs), polychlorinated biphenyls (PCBs), tetrachloroethene (PCE), trichloroethane (TCA), trichloroethene (TCE), vinyl chloride, and zinc. To date, there have been 1,627 sites listed on the NPL. Of these sites, 345 sites have been deleted resulting in 1,282 sites currently on the NPL (including the seven new sites added in today's rulemaking). There are 61 proposed sites awaiting final agency action: 56 in the general Superfund section and five in the federal facilities section. There are a total of 1,343 final and proposed sites. The following seven sites have been added to the National Priorities List are: -- Black River PCBs, Jefferson County, N.Y. -- Newtown Creek, Brooklyn/Queens, N.Y. -- General Dynamics Longwood, Longwood, Fla. -- Sanford Dry Cleaners, Sanford, Fla. -- Smokey Mountain Smelters, Knox County, Tenn. -- Ten Mile Drain, St. Clair Shores, Mich. -- Vienna Wells, Vienna, Mo. ASBESTOS UPDATE: EPA Adds 3 Sites in Fla. & Tenn. to CERCLA NPL --------------------------------------------------------------- The U.S. Environmental Protection Agency has added three new hazardous waste sites in the southeast that pose risks to human health and the environment to the National Priorities List of Superfund sites, according to an EPA press release dated Sept. 27, 2010. Superfund is the federal program that investigates and cleans up the most complex uncontrolled or abandoned hazardous waste sites in the country. The following three sites in the Southeast have been added to the National Priorities List: -- General Dynamics Longwood, Longwood, Fla. -- Sanford Dry Cleaners, Sanford, Fla. -- Smokey Mountain Smelters, Knox County, Tenn. Contaminants found at the sites include arsenic, asbestos, barium, cadmium, chromium, copper, dichloroethene (DCE), lead, mercury, polynuclear aromatic hydrcarbons (PAHs), polychlorinated biphenyls (PCBs), tetrachloroethene (PCE), trichloroethane (TCA), trichloroethene (TCE), vinyl chloride, and zinc. To date, there have been 1,627 sites listed on the NPL. Of these sites, 345 sites have been deleted resulting in 1,282 sites currently on the NPL (including the seven new sites added in Sept. 27, 2010's rulemaking). There are 61 proposed sites awaiting final agency action: 56 in the general Superfund section and five in the federal facilities section. There are a total of 1,343 final and proposed sites. With all Superfund sites, EPA tries to identify and locate the parties potentially responsible for the contamination to either fund the cleanup or conduct the cleanup with EPA oversight. For the newly listed sites without viable potentially responsible parties, EPA will fund the cleanup. Each Superfund site is investigated to determine the full extent of the contamination before cleanup is started. Therefore, it may be several years before significant cleanup funding is required for the sites. ASBESTOS UPDATE: 15 Actions Ongoing v. Ameron Int'l. at Aug. 29 --------------------------------------------------------------- Ameron International Corporation was a defendant in 15 asbestos- related cases as of Aug. 29, 2010, compared with 17 cases as of Aug. 29, 2010, according to the Company's quarterly report filed on Sept. 27, 2010 with the Securities and Exchange Commission. The Company faced 17 asbestos-related cases as of May 30, 2010, compared with 22 cases as of Feb. 28, 2010. (Class Action Reporter, July 2, 2010) The Company is a defendant in a number of asbestos-related personal injury lawsuits. These cases generally seek unspecified damages for asbestos-related diseases based on alleged exposure to products previously manufactured by the Company and others. During the quarter ended Aug. 29, 2010, there were two new asbestos-related cases, one case dismissed, three cases settled and no judgments or recovery; and expenses totaled US$13,000. In the nine months ended Aug. 29, 2010, the Company incurred expenses of US$77,000 and recovered US$28,000. Headquartered in Pasadena, Calif., Ameron International Corporation manufactures highly-engineered products and materials for the chemical, industrial, energy, transportation and infrastructure markets. ASBESTOS UPDATE: W.L. Thomas Fined $8,400 for Abatement Breaches ---------------------------------------------------------------- The Oregon Department of Environmental Quality has issued a US$8,400 penalty to W.L. Thomas Environmental LLC, of Albany, Ore., for an asbestos-handling violation during a building renovation project conducted in July 2010 at First Baptist Church in Salem, according to an Oregon DEQ press release dated Sept. 28, 2010. The penalty stems from a July 6, 2010 inspection DEQ conducted at the church, located at 395 Marion St. NE, Salem. DEQ Inspector Dottie Boyd documented W.L. Thomas Environmental employees removing about 850 square feet of asbestos-containing vinyl floor tiles from the church's basement without adequately wetting the tiles during removal. As a licensed asbestos abatement contractor, W.L. Thomas Environmental is required to comply with Oregon asbestos abatement law. By failing to adequately wet the vinyl floor tiles, it did not follow a basic work practice requirement intended to minimize release of asbestos fibers. W.L. Thomas Environmental, which is located at 1170 Anderson Place SE, Albany, has appealed the penalty. ASBESTOS UPDATE: Nuneaton and Bedworth Fined for Safety Breaches ---------------------------------------------------------------- Nuneaton and Bedworth Borough Council has been fined after sending an employee to deal with a water leak in a housing complex without warning him asbestos was present, according to a Health and Safety Executive press release dated Sept. 28, 2010. The HSE prosecuted the Council after it failed to warn the trained plumber that asbestos was present at a sheltered accommodation complex, despite possessing a survey detailing where it was. Nuneaton Magistrates Court heard that on Aug. 17, 2009, the employee was sent to Craddock Court in the town after a leak was reported. He found the faulty pipe in a ceiling void on the first floor of the building after removing an asbestos insulation board (AIB) ceiling sheet. As the worker was unaware he was dealing with asbestos, he used a hand saw to cut part of the AIB sheet to gain access to the leaking pipe. He stood directly underneath the tile while sawing the material for around 20 minutes and though covered in dust was not wearing any personal protective clothing. Nuneaton and Bedworth BC pleaded guilty to a breach of Regulation 4(9)(c) and Regulation 11(1) of the Control of Asbestos Regulations 2006. The council was fined GBP5,000 and ordered to pay costs of GBP2,140. HSE inspector Mike Ford said, "This case is particularly disappointing as we expect more from local authorities who actually have a duty to enforce the law concerning asbestos, and should be setting a good example. "The dangers of asbestos are well known in the building industry so for Nuneaton and Bedworth BC not to inform its employee of its presence showed a major failing in the Council's procedures at that time." ASBESTOS UPDATE: U.K. Inquest Rules on Lower Earley Man's Death --------------------------------------------------------------- An inquest at Reading Civic Centre in Berkshire, England, has been unable to determine whether exposure to asbestos during a refit to a town center department store caused the death of Maurice Rivers, a resident of Lower Earley, getreading reports. Mr. Rivers, who died at the age of 79, died from lung cancer at Royal Berkshire Hospital on Dec. 30, 2009. He had been transferred from the John Radcliffe Hospital in Oxford after suffering with a dry cough, breathing difficulties and weight loss in the six months before he died. A chest X-ray revealed Mr. Rivers had a 12mm thick malignant tumor and further examinations showed his coronary artery and other blood vessels had become calcified. The Sept. 21, 2010 inquest heard Mr. Rivers worked at John Lewis in Broad Street from 1951 to his retirement in 1995 during which time the shop was refitted. A post-mortem examination revealed Mr. Rivers had died from bilateral bronchopneumonia due to a malignant mesothelioma. Berkshire assistant deputy coroner Ravi Sidhu recorded a verdict of death by natural causes. ASBESTOS UPDATE: Secondhand Exposure Seen in U.K. Woman's Death --------------------------------------------------------------- An inquest at the Southampton Coroner's Court heard that the death of 71-year-old Hazel Williams was related to secondhand exposure to asbestos from her husband, David Williams, the Southern Daily Echo reports. Mr. Williams worked with asbestos for years fitting out Southampton ships including QE2 for the company J I Thornycroft. He said he is unharmed. However, Mrs. Williams was killed from the disease after coming into contact with the deadly particles when she cleaned Mr. William's work clothes during the 1960s and 1970s. Mrs. Williams, a retired medical secretary, died from mesothelioma on Aug. 1, 2010 at Oakhaven Hospice in Lymington. ASBESTOS UPDATE: Dredging at Sumas River Raises Asbestos Concern ---------------------------------------------------------------- The City of Abbotsford in British Columbia, Canada, dredges the Sumas River for flood control amid the U.S. Environmental Protection Agency's concerns on elevated asbestos levels in the river's sediments, The Times reports. According to an Abbotsford press release dated Sept. 10, 2010, contaminated sediment will be dumped in the Valley Road Landfill, covered in soil and then capped with clay. Abbotsford Mayor George Peary said the EPA notified the city and the federal and provincial governments in 2009 that there was a potential for higher concentrations of asbestos in the Sumas River. This is due to a naturally occurring deposit of asbestos that is eroding in the headwaters of Swift Creek in Whatcom County, Wash. Sediments removed from the river are subject to testing to measure contamination levels before being taken to the landfill, and once dumped, they will be covered with soil followed by a clay "cap" or layer. Roy Thorpe, a Fraser Health Authority spokesperson, said health officials have no concerns about the city's method for dealing with the asbestos-contaminated sediment. With a nod to ongoing communication between the city and provincial and federal agencies, including Fraser Health the BC Ministry of Environment and Environment Canada, Mayor Peary said determinations are still being made in regards to assessing the sediment and funding the project. ASBESTOS UPDATE: Asbestos Found at Tewantin State School Grounds ---------------------------------------------------------------- Asbestos is found at the playground of Tewantin State School in Tewantin, Queensland, Australia, The Medical News reports. Since 2009, asbestos has been reported numerous times at the school. Since 2009, a total of eight cases of asbestos discoveries have been reported at the Tewantin State School. The area is blocked to prevent students and faculty members from entering the contaminated area until the asbestos has been removed. Graham Atkins of Education Queensland's Infrastructure Services says asbestos-contaminated sand was removed from the sand pits and access was restricted to the affected areas. ASBESTOS UPDATE: Leicester Council Awards Payout to Norton Widow ---------------------------------------------------------------- The city council of Leicester, England, awarded "substantial" compensation to 69-year-old Janice Norton, a widow whose husband Roger Norton died from workplace exposure to asbestos, the Leicester Mercury reports. Mr. Norton died of mesothelioma at the age of 67 in October 2006. He was exposed to asbestos dust while employed by the city council as a painter and decorator from 1969 to 1980. Some 18 months after beginning legal proceedings, the council has agreed to an out of court compensation settlement, just weeks before a High Court hearing. Mrs. Norton took legal action against the council with the help of the Derbyshire Asbestos Support Team and asbestos claim specialists Thompsons Solicitors, after attending the Leicester Mesothelioma Support Group. ASBESTOS UPDATE: Hazard Found at Washington Elementary Classroom ---------------------------------------------------------------- California state safety officials verified reports of asbestos in a classroom at the Washington Elementary School in Berkeley, Calif., Mesothelioma reports. Children who took music and cooking classes at school may have been exposed to the asbestos. Inspectors with the California Division of Occupational Safety and Health (Cal/OSHA) ordered that the room remain closed until the school could make a full assessment of the level of contamination. According to the U.S. Environmental Protection Agency's Hazard Emergency Response Act, public school districts must have trained personnel on staff with the ability to detect asbestos in school facilities. The law specifies that schools conduct asbestos-awareness training for their custodians. However, the custodial staff did not discover the asbestos, but a part-time teacher did. The teacher, Darwin Greenwell, also had experience in the construction and real estate fields. Mr. Greenwell and other teachers noted that the carpet runners in the classroom had been removed. The missing runners exposed the floor tiles under the carpet. Mr. Greenwell noticed that a fine white dust covered the carpets near where the runners had been. He told a local newspaper that, when the children would dance during music class, "they would raise the dust." In response to the room closure, the school district contacted a local asbestos abatement contractor, RGA Environmental, to conduct the remediation project. The workers removed the tiles and the adhesive (mastic), which also tested positive for asbestos. The room remains closed due to the dust still evident on many surfaces. ASBESTOS UPDATE: Asbestos Delays Refurbishment at Buxton's Pool --------------------------------------------------------------- Refurbishment work at the swimming pool in Buxton, Derbyshire, England, has been delayed after asbestos was discovered at the site, BBC News reports. High Peak Borough Council's GBP2 million renovation project was due to be completed in June 2010. However, it was put back when the structure was found to need more extensive repairs. A revised completion date of September 2010 was announced, but that is likely to be pushed back because of the asbestos, which was found beneath the pool. Council leader Tony Ashton said, "Although invasive survey work had been undertaken to establish the extent of asbestos in the building, the asbestos under the pool itself could not have been discovered before the stripping out work was started." The Health and Safety Executive has been notified, and discussions are ongoing with contractors to set a new completion date. ASBESTOS UPDATE: Thurrock Council Rapped for Boiler Room Hazard --------------------------------------------------------------- The Health and Safety Executive told Thurrock Council to improve its asbestos management after a boiler room in a school in Thurrock, Essex, England, was found to have dangerous levels of asbestos, the Thurrock Gazette reports. Thurrock Council is now one of 10 authorities in the United Kingdom to be told to improve its asbestos management or face legal action. It is also the only authority in the country to be served a prohibition notice, after the boiler room was discovered in April 2010. The school was visited after Thurrock Council failed to provide a satisfactory response to a survey of 152 authorities about their asbestos management. The HSE was looking at schools that were built between 1945 and 1980 specifically, because these were often fire proofed with asbestos. The HSE says that a prohibition notice deals with immediate danger and is given when an "employer fails to protect their employees and the public and there is a risk of serious personal injury." Thurrock Council has refused to name the school where the boiler room caused such concern, but it did say that there was not any danger now. ASBESTOS UPDATE: Pa. Court OKs Ruling in Moore Case v. Ericsson --------------------------------------------------------------- The Superior Court of Pennsylvania affirmed the ruling of the Court of Common Pleas of Philadelphia County, Civil Division, which entered judgment in favor of Judith Moore in an asbestos case filed against Ericsson, Inc. Judges Allen, Lazarus, and Freedberg entered judgment in Case Nos. 2213 EDA 2009, 2112 EDA 2009 on Sept. 17, 2010. In this asbestos personal injury action, Ericsson and Judith Moore, Individually and as Administratrix of the Estate of Donnie R. Moore, Deceased (Plaintiffs/Moore), appealed from the order of the trial court, which denied denying Ericsson's post-trial motions and entering judgment on the molded jury verdict in the amount of US$1,190,654.00 in favor of Moore. The Superior Court affirmed. ASBESTOS UPDATE: Ohio Appeal Court OKs Ruling in Connell Lawsuit ---------------------------------------------------------------- The Court of Appeals of Ohio, Eighth District, Cuyahoga County, affirmed the ruling of the Cuyahoga County Court of Common Pleas in an asbestos case styled Gary Connell, Executor, Etc., Plaintiff-Appellant v. Goodyear Tire & Rubber Co., et al., Defendants-Appellees. Judges Larry A. Jones, Ann Dyke, and Mary J. Boyle entered judgment in Case Nos. 92833, 92923 on Aug. 12, 2010. Gary Connell, as Executor of the Estate of Robert Connell, appealed the decision of the lower court. Robert Connell was employed by Goodyear Aerospace Corporation (GAC) in Akron, Ohio from 1964 until 1973. During these years, GAC was a wholly owned subsidiary of Goodyear Tire & Rubber Company (Goodyear). Robert Connell was employed in both the Vinyl Division and Wheel and Brake areas of Plant B of GAC. The Company used asbestos in the making of its aircraft brake pads. Robert Connell left GAC in 1973. This wrongful death lawsuit arose from Robert Connell's alleged exposure to asbestos. On Dec. 6, 2006, Gary Connell filed a complaint against numerous defendants, including Goodyear and Lockheed Martin Corporation. Gary Connell alleged that defendants caused Robert Connell's death through exposure to asbestos- containing material. Gary Connell alleged that Goodyear and Lockheed Martin were responsible for the liabilities of Robert Connell's former employer, GAC, for the duration of Robert Connell's employment at GAC. On June 26, 2007, Gary Connell filed a motion for partial summary judgment against Goodyear, seeking an order that Goodyear is the successor-in-interest for GAC's alleged liability. On June 28, 2007, Gary Connell filed a motion for partial summary judgment against Lockheed Martin seeking an order that Lockheed Martin is the successor to GAC's alleged liability in this case. On Oct. 2, 2007, Lockheed Martin filed its motion for summary judgment. On Oct. 26, 2007, Goodyear filed its own motion for summary judgment, arguing that Goodyear is not the successor to GAC's alleged liabilities. On April 15, 2008, the trial judge heard oral argument on the parties' motions. On Jan. 5, 2009, the case proceeded to a jury trial on Gary Connell's remaining issue of supplier liability against Goodyear. The jury delivered a verdict in favor of Goodyear on Gary Connell's supplier liability claim. On Feb. 17, 2009, the trial judge entered an order and final judgment granting Lockheed Martin's motion for summary judgment and denying Gary Connell's motion for partial summary judgment against Lockheed Martin. On Feb. 26, 2009, the trial court entered an order and final judgment granting Gary Connell's motion for partial summary judgment against Goodyear. Gary Connell filed separate appeals regarding the judgments in favor of Lockheed Martin and Goodyear. On Feb. 18, 2009, Gary Connell filed his notice of appeal of the judgment. On Feb. 27, 2009, Goodyear filed a notice of cross- appeal challenging the trial court's order and final judgment granting Gary Connell's motion for partial summary judgment against Goodyear. On March 6, 2009, Gary Connell filed a notice of appeal of the trial court's judgment in Lockheed Martin's favor. On April 29, 2009, Lockheed Martin filed a motion to consolidate these appeals. The motion to consolidate was granted on June 2, 2009. ASBESTOS UPDATE: Supreme Court Reverses Ruling in Trascher Case --------------------------------------------------------------- The Supreme Court of Louisiana reversed the ruling of the district court, which denied Commercial Union Insurance Company's exception of improper venue in an asbestos case styled Joseph C. Trascher, et al. v. Northrop Grumman Ship Systems, Inc. f/k/a Avondale Industries, Inc., et al. The Court entered judgment on Case No. 10-CC-1287 on Sept. 17, 2010. This matter arose out of a lawsuit brought by plaintiffs in Orleans Parish against various defendants based on alleged asbestos exposure to their decedent, which occurred during his employment at Avondale Shipyards in Jefferson Parish. Commercial Union, in its capacity as insurer of seven executive officers of Avondale Industries who reside outside of Orleans Parish, filed an exception of improper venue. The district court denied Commercial Union's exception, and the court of appeal denied Commercial Union's application for supervisory writs. This application followed. The judgment of the district court was reversed. The exception of improper venue was granted. The case was remanded to the district court for further proceedings consistent with this opinion. ASBESTOS UPDATE: Clearwater Bids in Seaton Insurance Case Denied ---------------------------------------------------------------- The U.S. District Court, District of Rhode Island, denied Clearwater Insurance Co.'s motions in a case involving asbestos styled Seaton Insurance Company (f/k/a Unigard Mutual Insurance Company) and Stonewall Insurance Company, Plaintiffs v. Clearwater Insurance Company (f/k/a Skandia America Reinsurance Corporation), Defendant. District Judge William E. Smith entered judgment in Civil Action No. 09-516 S on Sept. 2, 2010. In May 2009, Clearwater filed a declaratory judgment action against Plaintiffs Seaton Insurance Co. and Stonewall Insurance Co. in Connecticut Superior Court, arguing there was no coverage for losses Seaton and Stonewall incurred regarding certain asbestos-related claims. Five months later, Seaton and Stonewall filed their own complaint in federal court on the basis of diversity jurisdiction, seeking monetary relief for Clearwater's alleged breaches of contract and a declaration of the respective rights and obligations of the parties. Seaton and Stonewall's claims involved the same two reinsurance contracts at issue in the Connecticut matter; however, they also raised claims under 11 additional contracts between the parties. In Connecticut, Seaton and Stonewall filed a motion to dismiss or stay, arguing that the less complex state case should yield to the later-filed federal case. Judge Karazin of the Connecticut Superior Court agreed and stayed the case. Clearwater then filed a motion to stay or dismiss the federal court action, and the Report and Recommendation suggested that it be denied. The Court denied Clearwater's objection to the R & R, and therefore denied Clearwater's Motion to Dismiss or Stay. ASBESTOS UPDATE: NKSJ Receiving Notices for Potential A&E Claims ---------------------------------------------------------------- NKSJ Holdings, Inc.'s subsidiary NIPPONKOA Insurance Company, Limited has received and continues to receive notices of potential claims asserting asbestos losses under certain insurance policies, according to the Company's annual report, on Form 20-F, filed on Sept. 29, 2010 with the Securities and Exchange Commission. In prior years, Nipponkoa issued insurance policies and assumed reinsurance for cover related to environmental pollution and asbestos exposure. Significant factors which affect the trends that influence Nipponkoa's ability to estimate future losses for these types of claims are the inconsistent court resolutions and the judicial interpretations, which broaden the intent of the policies and scope of coverage. Nipponkoa said it believes that insurance loss reserves and reinsurance contracts related to environmental pollution and asbestos claims to be adequate, and the amount is less than five percent of its total insurance loss reserves as of March 31, 2010 and 2009. COMPANY PROFILE: NKSJ Holdings, Inc. 26-1, Nishi-Shinjuku 1-chome Shinjuku-ku, Tokyo 160-8338 Japan Company Profile: The Company's businesses include domestic property/casualty and life insurance as well as overseas insurance products, asset and risk management services, pension plans, and some supplemental health insurance products. ASBESTOS UPDATE: Bird-Morgan Renovation Project Granted Sept. 28 ---------------------------------------------------------------- Residents of the East Rochester, N.Y., school district, on Sept. 28, 2010, approved projects to renovate the Bird-Morgan school campus, the Democrat and Chronicle reports. The US$4.86 million Bird-Morgan school project includes a bus loop, a new roof for the Morgan building and asbestos removal. State aid will cover US$3.93 million, and Monroe No. 1 BOCES will pay US$921,000. The district will pay US$11,542 from its capital reserve fund. School officials said the proposition for the Bird-Morgan work passed 236-60. ASBESTOS UPDATE: Fanslau Lawsuit v. Various Firms Filed Sept. 27 ---------------------------------------------------------------- The family of Richard W. Fanslau, on Sept. 27, 2010, filed an asbestos lawsuit on his behalf against various defendants in Lorain County Common Pleas Court in Ohio, The Morning Journal reports. The suit alleges Mr. Fanslau died from asbestos exposure while working at the BFGoodrich facility in Avon Lake and for Nickel Plate Railroad. Mr. Fanslau's family is suing Goodrich, Norfolk Southern Railway Co., and numerous other defendants stating Mr. Fanslau, whose date of death was not listed in the suit, was exposed to asbestos while working for the Nickel Plate Railroad and BFGoodrich. Mr. Fanslau died from asbestos-related lung disease and lung cancer, the suit stated, and he was a non-smoker. The family is suing for at least US$25,000 in damages. ASBESTOS UPDATE: Hazard Delays Reopening of Morristown's Library ---------------------------------------------------------------- According to officials, the discovery of more asbestos at the damaged Morristown-Morris Township Free Public Library in Morristown, N.J., will delay the building's reopening for an unknown amount of time, the Star-Ledger reports. Robert Russell, the architect overseeing reconstruction efforts, said, "We are trying not to give dates at this point. The currently known task is about three weeks from completion, but we are always on guard for more emergent matters." On May 3, 2010, a series of underground explosions blew some doors off the library building and buckled portions of the basement floor. Outside, on South Street, the blasts sent manhole covers into the air. While there was significant damage to the older wing, built in 1917, and asbestos fibers were released into the building, there were no injuries. When the bulk of the asbestos was removed in late August 2010, investigators and library officials were allowed back in to the building. At that point personnel from Jersey Central Power & Light, the Board of Public Utilities and the library's insurance company entered the library as part of their investigation into the cause of the explosion. Recently, Mr. Russell said, more asbestos was found behind radiators in the 1917 wing. Even once the newly found asbestos is cleared up, the opening could be further complicated by unresolved issues surrounding the installation of a permanent power supply to the building. ASBESTOS UPDATE: 2 Trials to Commence on Oct. 4 in McLean County ---------------------------------------------------------------- Circuit Judge Michael Drazewski and Associate Judge Paul Lawrence, on Oct. 4, 2010, will commence proceedings on claims that companies concealed the hazards of asbestos, LegalNewsline.com reports. Pneumo Abex, a corporation that exists to pay claims, ran out of lawyers and tried to settle the case before Judge Lawrence because it could not defend two. When Pneumo Abex lawyer Ray Modesitt, Esq., asked Judge Lawrence to continue the case so he could help his 68-year-old wife through surgery, Judge Lawrence looked skeptical. Plaintiff lawyer James Walker, Esq., accused Mr. Modesitt of dishonesty and reminded him that Pneumo Abex has litigated in McLean County for decades. He rattled off names of lawyers Mr. Modesitt could call, ending the list with "that older gentleman from Springfield." Judge Lawrence denied a continuance but canceled the second week of trial, a four day week due to a holiday on Monday, Oct. 11, 2010. Mr. Modesitt must report to Bloomington on Oct. 18, 2010, four days after his wife's surgery. Honeywell International Inc. and Owens-Illinois Inc. plan to defend themselves at both trials, but they must split up teams that previously concentrated on one case at a time. Mr. Walker and the plaintiff lawyer on the other case, James Wylder, Esq., split up years ago, after jointly creating a conspiracy theory that holds today's companies liable for acts that occurred 50 to 100 years ago. Jurors awarded US$10 million in punitive damages against Honeywell in February, for buying a company that bought a company that made brakes with asbestos long ago. The string of success broke in July 2010, when jurors failed to reach a verdict in a trial for two plaintiffs with no connection, Norman Shoopman and Larry Dunham. The judge at that trial, Circuit Judge Michael Prall, plans to retire in November 2010. A new trial for Mr. Shoopman and Mr. Dunham will begin before Judge Drazewski on Oct. 4, 2010, while Judge Lawrence will preside over a claim from Janet and James Shipley. ASBESTOS UPDATE: Mo. Court Denies Defendants' Bid in Martin Case ---------------------------------------------------------------- The U.S. District Court, Eastern District of Missouri, Eastern Division, denied Defendants' Motion in Limine in which Defendants sought to preclude Plaintiffs from introducing the testimony, and related documentary evidence, of four attorneys with whom Plaintiffs entered into a written Associate Counsel Agreement (ACA) related to asbestos cases. The case is styled Edwin C. Martin, Jr., et al, Plaintiffs v. James P. Holloran, et al., Defendants. District Judge Audrey G. Fleissig entered judgment in Case No. 4:05CV1857 AGF on Sept. 8, 2010. Plaintiffs sought to show by this evidence that Plaintiffs had a "habit" or "routine practice," of insisting upon a written ACA with local counsel, such as Defendants, before proceeding with the asbestos screenings. This evidence, according to Plaintiffs, is relevant to show that Plaintiffs acted in accordance with that practice in dealing with Defendants, that is, that the parties executed a written ACA. At the hearing on this and other motions in limine on Sept. 7, 2010, counsel for Plaintiffs represented to the Court that Plaintiffs entered into about 10 asbestos ACAs with local counsel, including Defendants, across the country in 1987, 1988, and 1989. It appeared that the ACA (whether oral or written) with Defendants was one of the earlier such arrangements, if not the earliest. Accordingly, it was hereby ordered that Defendants' Motion in Limine was denied. John E. Toma, Jr., Esq., of John E. Toma, LLC, Melissa M. Zensen, Esq. of Zensen Law Firm, LLC in St. Louis, represented Plaintiffs. Ronnie L. White, Esq., Thomas E. Schwartz, Esq., Justin D. Guerra, Esq. of Holloran White, LLP, in St. Louis, represented Defendants. ASBESTOS UPDATE: Appeal Court Reverses Ruling in Smith's Lawsuit ---------------------------------------------------------------- The Court of Appeal, Second District, Division 3, California, reversed the ruling of the Los Angeles Superior Court, which awarded Mary Lou Smith an asbestos judgment of $450,834.46. The case is styled Mary Lou Smith, Plaintiff and Appellant v. Pneumo Abex LLC, Defendant and Appellant. Judges Kitching, Croskey, and Aldrich entered judgment in Case No. B217063 on Sept. 17, 2010. This was a personal injury case arising out of Robert Smith's alleged exposure to asbestos from products manufactured and distributed by numerous defendants, including defendant Pneumo Abex LLC. Mr. Smith and Mrs. Smith sued Abex and other defendants for strict liability and negligence. The jury returned a verdict in favor of the Smiths and against Abex. Shortly thereafter, Mr. Smith died from mesothelioma. Mrs. Smith was then named his successor in interest. After entering an initial judgment and adjudicating post-trial motions, the trial court entered a final judgment in the amount of US$365,029.35, plus US$85,805.11 in costs, for a total of US$450,834.46 in favor of Mrs. Smith and against Abex. Both Mrs. Smith and Abex appealed that judgment. The Appeal Court concluded the trial court erroneously calculated economic damages. The Appeal Court reversed the judgment with directions that the trial court ruled in Mrs. Smith's favor and against Abex in the amount of US$440,107, plus costs in the amount of US$85,805.11, for a total of US$525,912.11. ********* 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. Gracele D. Canilao, Leah Felisilda, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. 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