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/raid1/www/Hosts/bankrupt/CAR_Public/110916.mbx C L A S S A C T I O N R E P O R T E R Friday, September 16, 2011, Vol. 13, No. 184 Headlines 24 HOUR FITNESS: App. Ct. Affirms Ruling Against Consumer Suit ARIZONA PUBLIC: Faces Class Action Over Southern Calif. Blackout AT&T: Motion to Move Wage & Hour Class Action to Florida Denied ATLANTA, GA: Appeals Court Rules in Suit Over Water & Sewage Fees BALANCE BAR: Defrauds Consumers on All Natural Claims, Suit Says BANK OF NEW YORK MELLON: Detroit Pension Fund Files Class Action BANNER SUPPLY: Chinese Drywall Victims Can File Separate Suits CALIPER LIFE: Being Sold to PerkinElmer for Too Little CELL THERAPEUTICS: Protective Order for Discovery Process Approved CHASE HOME: 3rd Circuit Upholds Dismissal of Suit on Overcharges DEAN FOODS: Trial in Dairy Farmers' Class Action Postponed DREAM PRODUCTS: Sued Over False Claims on "Dream Water" Product ELECTRONIC ARTS: Judge Dismisses Ex-Quarterback's Class Action FARMERS NEW WORLD: Fairbanks Suit Won't Proceed as Class Action GREAT ATLANTIC: Accused in N.J. Suit of Misleading Shareholders HIGHLAND TOWN, IL: Settles Class Action Over Flood Damage JOHNSON RODENBURG: Debt Collection Suit Denied Class Certification KOSS CORP: District Court Dismissed Accountant in Securities Suit L-3 SERVICES: Krajina Genocide Victims' Class Action Can Proceed MEDTRONIC INC: Records $221M Expense Over Fidelis Suit Settlement MEDTRONIC INC: "INFUSE" Suit Still Pending in Minnesota META FINANCIAL: Iowa Court Denies Bid to Dismiss Securities Suit NATALIE SALON: Faces Class Action Over Wage Violations NAVISTAR INT'L: Hearing on Class Motion vs. Units Continued NAVISTAR INT'L: Unit Not Named in 6.0 Liter Diesel Engine MDL NCAA: Attorney Files Medical Monitoring Class Action NEWS CORP: US Investors Expand Phone Hacking Class Action NFLPA: Retirees File Class Action Over Lockouts PACIFIC SUNWEAR: Hearing Set for Sept. 23 in Wage and Hour Suits PORTNOFF LAW: Attorney's Fees Award in Tax Collection Suit Upheld PROTECTIVE LIFE: Ohio Ct. Denies Bid to Dismiss Premiums Lawsuit RALPHS GROCERY: Denial on Bid to Compel Arbitration Remanded ROSS STORES: Wage and Hour Suits Still Pending in California SAFELITE SOLUTIONS: Files Motions to Strike Class Action Opt-Ins SMITH & WESSON: Appeal From Securities Suit Dismissal Pending STATE OF CALIFORNIA: Foster Care Class Action Can't Proceed TOLL BROS: Calif. App. Ct. Flips Ruling in Labor Violation Suit WEEHOO INC: Recalls 2,700 Bike Trailers Due to Fall & Crash Risks YTP INTL: 7th Circuit Remands "Pyramid Scheme" Suit for Review ZALE CORP: District Court Junks Securities Fraud Suit Asbestos Litigation ASBESTOS UPDATE: Regal Beloit Still Subject to Exposure Lawsuits ASBESTOS UPDATE: Applica Still Subject to Three Exposure Actions ASBESTOS UPDATE: Pfizer Unit Still Subject to Exposure Lawsuits ASBESTOS UPDATE: Tata Posts GBP374.2MM A&E Provision at June 30 ASBESTOS UPDATE: Huntington Ingalls Named in Exposure Lawsuits ASBESTOS UPDATE: Harbinger Group Still Faces Suits in Miss., La. ASBESTOS UPDATE: Premix-Marbletite Mfg. Faces 18 Exposure Claims ASBESTOS UPDATE: Momentive Specialty Still Named in Injury Cases ASBESTOS UPDATE: Exposure Lawsuits Still Open v. Kaanapali Land ASBESTOS UPDATE: Precision Castparts Named in Exposure Lawsuits ASBESTOS UPDATE: Andrea Electronics Facing Edwards Claim in R.I. ASBESTOS UPDATE: Thermon Group Subject to 4 Pending Injury Suits ASBESTOS UPDATE: Norfolk Southern Still Faces Occupational Suits ASBESTOS UPDATE: IntriCon Corp. Still Named in Exposure Lawsuits ASBESTOS UPDATE: Global Power Still Facing Personal Injury Cases ASBESTOS UPDATE: Warner-Lambert Still Involved in AO's Lawsuits ASBESTOS UPDATE: Pfizer Inc. Still Subject to Gibsonburg Claims ASBESTOS UPDATE: Everest Re Has $505.1MM June 30 Gross Reserves ASBESTOS UPDATE: Crown Holdings Receives 1T New Claims in Q2 ASBESTOS UPDATE: Crown Holdings Accrues $239MM for Claims ASBESTOS UPDATE: Crown Cork Subject to Cases in Tex., Pa. Courts ASBESTOS UPDATE: 1,164 Actions Open v. Central Hudson at June 30 ASBESTOS UPDATE: Hanover Records $65.4MM A&E Reserves at June 30 ASBESTOS UPDATE: STERIS Corp. Still Involved in Exposure Actions ASBESTOS UPDATE: Exposure Actions Still Pending v. Manitowoc Co. ASBESTOS UPDATE: Ensco, Units Still Has Exposure Suits in Miss. ASBESTOS UPDATE: Enterprise Posts $103.2MM June 30 ARO Liability ASBESTOS UPDATE: Injury Claims Still Open v. Scotts Miracle-Gro ASBESTOS UPDATE: Belden Inc. Facing 81 Injury Cases at July 22 ASBESTOS UPDATE: U.S. Auto Parts Unit Still Facing Injury Cases ASBESTOS UPDATE: Woodard Lawsuit v. ExxonMobil Filed on Aug. 25 ASBESTOS UPDATE: Long Case v. 10 Firms Filed on Aug. 2 in W.Va. ASBESTOS UPDATE: Dittmeier, Donohoe Cases Filed in St. Clair Co. ASBESTOS UPDATE: Inquest Issues Ruling on Longridge Man's Death ASBESTOS UPDATE: EPA Seeks Public Comment on Toxicity at Libby ASBESTOS UPDATE: Inquest Decides on Carriageworks Worker's Death ASBESTOS UPDATE: Mass. Developer Fined $100T for Safety Breaches ASBESTOS UPDATE: Decuir Case v. Texaco Filed on Aug. 24 in Texas ASBESTOS UPDATE: Ex-Hardie Employee Awarded AU$1.15MM in Payout ASBESTOS UPDATE: Pa. Judge Dismisses Armstrong's Asbestos Claim ASBESTOS UPDATE: Mich. Township Head Pleads Not Guilty to Charge ASBESTOS UPDATE: $282,685 Verdict Handed to James Lokey's Family ASBESTOS UPDATE: Martin Case v. 57 Firms Filed in Kanawha Court ASBESTOS UPDATE: Dye Claim v. 73 Firms Filed on July 29 in W.Va. ASBESTOS UPDATE: AU$$11.6MM Estimated for Wynnum School Cleanup ASBESTOS UPDATE: Court Issues Split Ruling in York Int'l. Action ASBESTOS UPDATE: Defendants' Summary Judgment Granted in Spavone ASBESTOS UPDATE: Pa. Court to Grant Dismissal Bids in Tatum Case ASBESTOS UPDATE: Exeter Office Workers Evacuated After Cleanup ASBESTOS UPDATE: Murfreesboro Site Cleanup to Cost Almost $30T ASBESTOS UPDATE: TMS International Named in Liability Lawsuits ASBESTOS UPDATE: CERC Continues to be Named in Exposure Lawsuits ASBESTOS UPDATE: Katy Named in 11 Cases With 325 Claimants ASBESTOS UPDATE: Sterling Seeks Indemnification From Katy ASBESTOS UPDATE: LaBour Pump Subject to 90 Open Cases at July 1 ASBESTOS UPDATE: American Biltrite Liabilities Still at $17.7MM ASBESTOS UPDATE: American Biltrite Facing 1,297 Cases at June 30 ASBESTOS UPDATE: McJunkin Facing 958 Exposure Claims at June 30 ASBESTOS UPDATE: South Hampton Still Facing Harris County Action ASBESTOS UPDATE: Pacific Office Trust Posts $600T ARO at June 30 ********* 24 HOUR FITNESS: App. Ct. Affirms Ruling Against Consumer Suit -------------------------------------------------------------- The Court of Appeals of California, Second District, affirmed a trial court's ruling on a demurrer to a fifth amended version of the class action entitled, Tammie D. Turner v. 24 Hour Fitness United States, Inc., et al., Case No. B227445 (Calif. App. Ct.) Plaintiff sought to maintain a class composed of U.S. residents who entered into an agreement for personal training sessions with 24 Hour Fitness in California and did not receive a refund when their unused training sessions expired. 24 Hour Fitness demurred to the fifth amended complaint. The trial court sustained the demurrer without leave to amend on July 7, 2010. Plaintiff appealed the trial court order. Plaintiff failed to state a claim of forfeiture, the Appellate Court held. "By failing to use her training sessions during that six month period, through no fault of 24 Hour Fitness, Turner lost the benefit of her bargain." Plaintiff also failed to state a claim for violation of the Unfair Competition Law, the Appellate Court opined. "Turner does not allege that 24 Hour Fitness prevented her from using her training sessions during the six month period. Further, the FSA which Turner signed expressly states the expiration date of the training sessions both before and after her signature." The Appellate Court ruled that "leave to amend" was properly denied. "Turner has failed to meet her burden to show a reasonable possibility that a sixth amended complaint would state a valid cause of action." Judges Tricia A. Bigelow, Madeleine I. Flier, and Elizabeth A. Grimes compromise the appellate panel. A full-text copy of the July 13, 2011 Appellate Court order is available at http://is.gd/djOmhCfrom Leagle.com. ARIZONA PUBLIC: Faces Class Action Over Southern Calif. Blackout ---------------------------------------------------------------- Courthouse News Service reports that the first wave of an expected slew of class actions has been filed, blaming Arizona Public Service for the Sept. 8 Southern California blackout, which forced the plaintiffs to throw out all the spoiled, unrefrigerated food from their businesses. A copy of the Complaint in Busalacchi, et al. v. Arizona Public Service Company, et al., Case No. 11-cv-02083 (S.D. Calif.), is available at: http://www.courthousenews.com/2011/09/13/SoCalBlackout.pdf The Plaintiffs are represented by: Michael Ian Rott, Esq. David V. Hiden, Jr., Esq. Eric M. Overholt, Esq. HIDEN, ROTT & OERTLE, LLP 2635 Camino del Rio South, Suite 306 San Diego, CA 92108 Telephone: (619) 296-5884 E-mail: mrott@hrollp.com dhiden@hrollp.com eoverholt@hrollp.com AT&T: Motion to Move Wage & Hour Class Action to Florida Denied --------------------------------------------------------------- On September 12, 2011, a federal judge denied AT&T's motion to move an at home call center wage and hour class action lawsuit from California to Florida. Perry v. AT&T, Case No. C11-01488 is currently pending in the Northern District of California. Blumenthal, Nordrehaug & Bhowmik originally filed the class action lawsuit complaint against AT&T Mobility and Arise Virtual Solutions on March 28, 2011, alleging that the companies mistreated a class of At Home Call Center employees as independent contractors. On July 1, 2011 the San Diego employment lawyers at Blumenthal, Nordrehaug & Bhowmik filed an opposition to AT&T's motion to move the class action lawsuit to Florida. According to the opposition to AT&T's motion to transfer venue: "Defendant AT&T is the ring leader of this 'yellow dog' scheme to avoid the obligations AT&T owes to Plaintiff, the State of California and the federal government. AT&T's illegal scheme is based on the artifice of requiring each employee to form their own corporations, which contract with Arise, which in turn contracts with AT&T. This scheme is fraudulent because Plaintiff and the other Class Members provide services directly to AT&T and AT&T controls every aspect of their employment, which makes them AT&T's employees under California law. AT&T is thus able to unlawfully avoid all the costs of being an employer that other employers pay while, at the same time, effectively paying less than minimum wage. This scheme purposefully flouts the California Labor Code which applies to all individuals working in California and the UCL which applies to all entities doing business in California." The Court agreed with the San Diego employment lawyers, finding that the "Plaintiff has met her heavy burden of proving that enforcement of the forum selection clause in this case would be unreasonable, because it would contravene the strong public policy of California that contractual schemes to avoid the California Labor Code will not be tolerated." The Court also ruled against AT&T's motion based on the finding that the "Plaintiff negotiated and executed the contract with defendant Arise from California, performed all aspects of her contractual obligations in California, and made the choice to litigate her claims in California, where the courts would be most familiar with California law." Norman Blumenthal, an attorney for the Plaintiff, had this to say about the Judge's decision to keep the case in California: "This is a big win for the citizens of California because it protects them from yellow dog contracts and from the payment of the employer's share of social security taxes." For more information about the AT&T and Arise At Home Call Center independent contractor class action lawsuit, call (866) 771-7099 or visit the AT&T employment law class action Web site. Blumenthal, Nordrehaug & Bhowmik is a California employment law firm that focuses on representing employees in actions for wrongful termination, discrimination, wages and hours, overtime pay and other illegal employment law practices. ATLANTA, GA: Appeals Court Rules in Suit Over Water & Sewage Fees ----------------------------------------------------------------- Judge J.D. Smith of the Court of Appeals of Georgia reversed a trial court order denying dismissal of certain named plaintiffs in a class action complaint filed against the city of Atlanta, Georgia, and the city's contractors relating to water and sewage use charges. The consolidated lawsuit was filed by Atlanta residents, who asserted they were overcharged for water and sewage use through the City's installation of new automatic meter reading technology. The contractors sued are K & V Meter Automation, LLC; Khafra Operations, LLC; Metals and Materials Engineers, LLC; and Neptune Technology Group, Inc. The defendants sought to dismiss the lawsuit. The trial court granted in whole and in part, and denied in whole and in part, various motions. The Appellate Court, however, reversed the trial court's denial of the City's motion to dismiss named plaintiffs who failed to comply with ante litem notice provisions of the Official Code of Georgia Annotated. "Requiring all named plaintiffs in a class action to comply with the ante litem notice requirements of the Official Code of Georgia Annotated will further the policy that the claims of the representative be typical of the claims in the class," the Appellate Court stated. The record shows that the ante litem notice sent to the city the named plaintiffs' counsel stated that "The persons filing claims will include at least Mrs. Lisa Cervera Webb and a class of currently unnamed plaintiffs." The Appellate Court affirmed the trial court's denial of the City's motion to dismiss the named plaintiffs' claims for unjust enrichment, money received, and breach of the city code. "No ante litem notice was required for [those] claims because they are not claims for injury to person or property," the Appellate Court opined. The Appellate Court also affirmed the trial court's dismissal of the plaintiffs' breach of contract claims and negligence claims against the city contractors. Plaintiffs failed to allege a viable breach of contract claim or negligence claim against the city contractors, the Appellate Court held. However, the Appellate Court found no merit in the city contractors' contention that the City's claims against them for contribution, indemnity, and attorney's fees and expenses under the OCGA should be dismissed. A full-text copy of the July 6, 2011 Appellate Court order is available at http://is.gd/oBb3Cufrom Leagle.com. BALANCE BAR: Defrauds Consumers on All Natural Claims, Suit Says ---------------------------------------------------------------- Kimberly S. Sethavanish, a California resident on behalf of herself and all others similarly situated v. Balance Bar Company, a Delaware corporation, Case No. 4:11-cv-04547 (N.D. Calif., September 13, 2011) is a class action brought on behalf of a nationwide class of consumers, who purchased Balance Bar's energy bar products labeled as "All Natural" even though they contain synthetic ingredients, including Ascorbic Acid, Cocoa, Glycerine, and Xanthan Gum. Throughout the Class Period, Balance Bar prominently makes the claim "All Natural" on the labels of its energy bar products, cultivating a wholesome and healthful image in an effort to promote the sale of these products, even though its energy bar products were actually not "All Natural," Ms. Sethavanish alleges. She contends that Balance Bar's conduct gives rise to common law fraud, violates the unlawful, unfair and fraudulent prongs of California's Business and Professions Code. Ms. Sethavanish is a resident of Windsor, California, in Sonoma County. She says she is willing to and has paid a premium for foods that are all natural and has tried to refrain from buying their counterparts that were not all natural. Balance Bar manufactures and distributes a full spectrum of energy bars from its Southern California manufacturing facility. The Plaintiff is represented by: Janet Lindner Spielberg, Esq. LAW OFFICES OF JANET LINDNER SPIELBERG 12400 Wilshire Boulevard, #400 Los Angeles, CA 90025 Telephone: (310) 392-8801 Facsimile: (310) 278-5938 E-mail: jlspielberg@jlslp.com - and - Michael D. Braun, Esq. BRAUN LAW GROUP, P.C. 10680 West Pico Boulevard, Suite 280 Los Angeles, CA 90064 Telephone: (310) 836-6000 Facsimile: (310) 836-6010 E-mail: service@braunlawgroup.com - and - Joseph N. Kravec, Jr., Esq. Maureen Davidson-Welling, Esq. Wyatt A. Lison, Esq. STEMBER FEINSTEIN DOYLE & PAYNE LLC Allegheny Building, 17th Floor 429 Forbes Avenue Pittsburgh, PA 15219 Telephone: (412) 281-8400 Facsimile: (412) 281-1007 E-mail: jkravec@stemberfeinstein.com mdavidsonwelling@stemberfeinstein.com wlison@stemberfeinstein.com BANK OF NEW YORK MELLON: Detroit Pension Fund Files Class Action ---------------------------------------------------------------- Halah Touryalai, writing for Forbes, reports that the Bank of New York Mellon's lawyers are awfully busy lately and a Detroit pension fund just added to their workload. In a lawsuit filed on Sept. 12 in Manhattan the pension group says its custodian, BNY Mellon, gambled and lost more than $1 billion of its money in investments tied to failing Lehman Brothers. BNY continued to keep the pension funds' money invested in Lehman notes during 2007 and 2008 even as it became apparent that the investment bank was in trouble, the group says. The class action complaint was filed by the General Retirement System of the City of Detroit which includes that city's police and fire retirement system. From the suit: "[BNY] surprisingly took no action with respect to the Collateral investments it made on behalf of Plaintiffs and the Class. Although Defendant could have divested or otherwise hedged against losses on the Lehman Notes and other similar Lehman investments at any point during 2007 through 2008 and significantly minimized or eliminated any losses, Defendant held onto the Lehman investments. In such away, Defendant took a gamble with Plaintiffs' and the Class Plans' money for which it bore no risk of loss. Defendant made this gamble because under the Agreement, Defendant had no risk of loss but was paid 20% of any profit. Because of this "heads I win, tails you lose" paradigm, Defendant had no incentive to modify its unauthorized and risky investment strategy, and made no attempt to do so, because it was the beneficiary of all profits, and would not be responsible for any losses. "We believe the suit is without merit and we will defend ourselves vigorously," BNY said in a statement on Sept. 13. As Lehman's clearing bank, BNY knew about Lehman's problems and it required Lehman to put up additional collateral in order to keep those operations going, plaintiffs allege. "Additionally, in the summer and fall of 2008, executives within Defendant's Securities Lending Program attempted to minimize BNY Mellon's exposure in securities lending loans to Lehman, which Defendant would ultimately beheld liable for should Lehman collapse," the lawsuit says. Despite it's own moves to protect itself, BNY did not act to protect the assets of the pension fund whose money was invested in Lehman notes, plaintiff says, and as a result breached its fiduciary duty. According to the lawsuit, the fund was encouraged to join BNY's securities lending program in which the bank would lend securities owned by the funds to creditworthy borrowers. Upon information from BNY, the fund believed program was "akin to a conservative money market account." This isn't the only legal battle BNY is fighting. In June, BNY, acting as a trustee, struck a record $8.5 billion settlement with Bank of America over representation and warranty claims on mortgage securities issued by its Countrywide unit. That settlement is being objected to by several parties including AIG, the FDIC and some state attorneys general. BNY is also facing scrutiny over its pricing on some foreign exchange transactions for clients. Earlier this month BNY announced the departure of Chairman and Chief Executive Robert Kelly who stepped down "due to differences in approach to managing the company" with the board of directors. Its new chairman and CEO, Gerald Hassell, told investors at a Barclay's conference on Sept. 13 that it would fight claims related to its foreign exchange transactions and defended its settlement with BofA. "Our clients aren't as much upset with us as the attorneys general in some states are," Mr. Hassell said. "We don't think we've done anything out of line." BANNER SUPPLY: Chinese Drywall Victims Can File Separate Suits -------------------------------------------------------------- Katie McFarland, writing for pnj.com, reports that a Florida circuit judge on Sept. 12 ruled that hundreds of residents can file separate lawsuits against a Chinese drywall distributor if they are unsatisfied with the proposed $55 million class action settlement. Attorneys representing South Florida residents whose homes had been tainted by the defective drywall said many victims have complained that their share of the settlement against Banner Supply Co. wouldn't be enough to repair their homes. Homes that were built with the drywall have a foul odor and the chemicals used to make the drywall can cause health problems, corrode metal wiring, and appliances. Broward County Circuit Judge Charles Greene said plaintiffs who would receive part of the proposed Banner settlement should advise the court whether they want to opt out of the class settlement that affects around 2,000 Florida homeowners. The number of victims across the South entitled to a share of the class action settlement is unclear. Builders, drywall installers and remodelers that have been sued as well may want a part of the settlement because they blame distributors such as Miami-based Banner for their legal woes. Banner supported the class settlement but oppose allowing homeowners to opt out because it could mean they would face additional individual lawsuits. Banner also is suing German company Knauf Gips for $100 million, claiming Knauf knew about the odor and that the drywall would cause damage to homes. The Banner settlement is only one part of the complicated litigation consolidated before the Louisiana court. CALIPER LIFE: Being Sold to PerkinElmer for Too Little ------------------------------------------------------ Courthouse News Service reports that shareholders say Caliper Life Sciences is selling itself too cheaply to PerkinElmer, for $10.50 a share or $600 million. A copy of the Complaint in Greenberg v. Caliper Life Sciences, Inc., et al., Case No. 6853 (Del. Ch. Ct.), is available at: http://www.courthousenews.com/2011/09/13/SCA.pdf The Plaintiff is represented by: Carmella P. Keener, Esq. P. Bradford deLeeuw, Esq. ROSENTHAL, MONHAIT & GODDESS, P.A. 919 North Market Street, Suite 1401 P.O. Box 1070 Wilmington, DE 19801 Telephone: (302) 656-443 E-mail: ckeener@rmgglaw.com bdeleeuw@rmgglaw.com - and - Joseph E. White, III, Esq. Jonathan M. Stein, Esq. Lester R. Hooker, Esq. SAXENA WHITE P.A. 2424 North Federal Highway, Suite 257 Boca Raton, FL 33431 Telephone: (561) 394-3399 E-mail: jwhite@saxenawhite.com jstein@saxenawhite.com lhooker@saxenawhite.com - and - Michael I. Fistel, Jr., Esq. Marshall P. Dees, Esq. HOLZER HOLZER & FISTEL, LLC 200 Ashford Center North, Suite 300 Atlanta, GA 30338 Telephone: (770) 392-0090 CELL THERAPEUTICS: Protective Order for Discovery Process Approved ------------------------------------------------------------------ Judge Marsha J. Pechman of the U.S. District Court for the Western District of Washington, in Seattle, approved a protective order to govern the discovery process in In re Cell Therapeutics, Inc. Class Action Litigation. A copy of the July 27, 2011, order is available at http://is.gd/3DHSzYfrom Leagle.com CHASE HOME: 3rd Circuit Upholds Dismissal of Suit on Overcharges ---------------------------------------------------------------- Circuit Judges Julio M. Fuentes, D. Michael Fisher, and Richard Lowell Nygaard of the U.S. Court of Appeals for the Third Circuit affirmed a district court's dismissal of an amended class action complaint captioned, Coleman v. Chase Home Finance, LLC, Case No. 09-4727, (3rd Cir.) The complaint was filed by Stacy Coleman relating to alleged excessive fees charged for mortgage reinstatement after a foreclosure judgment in favor of Chase. The complaint, as amended, was dismissed by the district court based on New Jersey's entire controversy doctrine. The Third Circuit is not persuaded that Plaintiff was deprived of a fair opportunity to litigate her claims. Among other things, the Third Circuit noted that because the foreclosure sale had been stalled due to the bankruptcy proceedings and the judgment had not been paid, the state court had jurisdiction over the matter and Ms. Coleman could have brought her claims as a part of the original foreclosure action until January 20, 2006. In fact, Ms. Coleman's cause of action accrued on November 4, 2005, while the original foreclosure action was still pending, and thus, she is barred by the entire controversy doctrine, the Third Circuit held. A copy of the 3rd Circuit's July 12, 2011 opinion is available at http://is.gd/oxhJXufrom Leagle.com. DEAN FOODS: Trial in Dairy Farmers' Class Action Postponed ---------------------------------------------------------- Larisa Brass, writing for Knoxville News Sentinel, reports that a trial scheduled to begin on Sept. 13 in a lawsuit between Southeastern dairy farmers and companies that market and buy their milk has been postponed indefinitely. The decision was publicly announced late last week on http://www.southeastdairyclass.com-- a Web site set up for dairy farmers who are members of the class action lawsuit against dairy manufacturer Dean Foods, the cooperative Dairy Farmers of America and other entities and individuals. The post read: "The trial date has been postponed. No further information is available at this time." The 2008 lawsuit alleges that Dean Foods, the largest dairy products maker in the country, has controlled milk prices in the region by allowing Dairy Farmers of America, through various entities, to manage the milk supply of its member farmers and, unbeknownst to the farmers, independent producers who chose to supply local bottlers under separate contracts. The suit charges the defendants with colluding to establish anti- competitive practices that have artificially suppressed farm milk prices in the Southeast over the recent decade. The plaintiffs have been seeking more than $500 million in damages. While the Web notice was the first public announcement, the decision to postpone the trial apparently was referred to during an Aug. 30 conference call between U.S. District Court Judge J. Ronnie Greer and lawyers in the case, which is to be heard in Greeneville. The postponement comes on the heels of Judge Greer's recent decisions to decertify all DFA members, approximately 2,000 dairy farmers, from the class and to vacate a $140 million settlement agreed on by Dean Foods and the plaintiffs prior to the decertification order. "The Court wanted to ensure that the rights of DFA farmer-members were protected in regards to a 'settlement class,' perhaps eligible to share in the Dean proposal of $140 million," said Julie Walker of Cocke County, who produces a newsletter on dairy issues and has been following the case. Last week, Ms. Walker read a transcript of the call, publicly available only at the Greeneville federal courthouse. "Since the (settlement) amount was announced prior to decertification, that has raised many questions. It will take several weeks to sort all related issues out properly in this very complex litigation, which is necessary before trial begins," she said, adding that based on her reading of recent documents filed with the court, "the trial will be reset when the Dean Settlement Class is defined, unless all remaining defendants agree to settle before trial." There remains much uncertainty about the direction the case will take, said John Bunting, a New York-based dairy expert who blogs about the industry, writes for the national dairy newsletter Milkweed and has been following the case. "Where we're at right now reveals how confusing the complexity of dairy has become." Illustrating these conflicts, a letter posted on the federal court's public database last week expressed confusion over recent decisions in the case. Addressing Judge Greer, former dairy farmer Bette Nicholson wrote that the typical local farm was left out of the loop when it came to the cooperative's decision-making process. In the decertification order, Jude Greer indicated that statements from several DFA dairy farmers and regional board members declaring that DFA members benefited from the market situation were among his reasons to disassociate the producers from the independent farmers in the case. "Our Dairy Farm operated in central Arkansas from January 1990 through January 2007. In order to sell milk in Arkansas you had to belong to a Dairy Coop. In the later years it was like picking the lesser of two evils deciding which Coop to belong to," Nicholson wrote in a letter filed Sept. 3. "We belonged to DFA a good part of that time. Your board member votes for you and you find out about what is going on or has been decided at a later time. DFA management or DFA board members do not represent our farm in the litigation that is going on. They have not consulted us or informed us in any of the issues involved as we were former DFA members." On Sept. 9, attorney Gary Brewer, who currently represents several plaintiffs in the suit, filed a motion requesting permission to represent DFA farmers as a subclass in the case. There are larger issues that have contributed to a very complex case that's difficult to resolve in court, according to Mr. Bunting. "The other thing that the court case reveals, both the Southeastern case and (a separate) Northeastern case," he said, "is that governmental authorities both at the state and federal level have not done their job in oversight or these cases wouldn't even exist. Cooperative law is state law." DREAM PRODUCTS: Sued Over False Claims on "Dream Water" Product --------------------------------------------------------------- Matt Reynolds at Courthouse News Service reports that two Florida companies are "preying" on sleepy consumers by selling them pricey "Dream Water" -- at $20 a six-pack -- but it's just snake oil, a San Diegan says in a class action in Superior Court. Joe Ferris says Dream Products and Sarpes Beverages push their Dream Water as a "miraculous" product that "works for anyone who needs to relax, fall asleep or stay asleep." "Dream Water, according to defendant, has no side effects and provides its amazing sleep benefits without making users feel groggy or drowsy the next day like other over-the-counter and prescription sleep aids. Although defendant uses images and language to represent that these claims about its products have been clinically proven and endorsed by medical organizations and professionals, the reality is that defendant has no such support for its baseless representations. Defendant simply is and has been misrepresenting the effectiveness of its products to the general public, in order to reap windfall profits," according to the complaint. Mr. Ferris says the defendants push their product with "misleading testimonials," among other things, in airports, over the Internet and in "popular national retail chains including Walgreens and K- Mart. Dream Water is sold in a variety of 'flavors' in both 8 ounce 23 bottles and in 2.5 ounce 'sleep shots'. A six pack of either the 8 ounce bottles or the 2.5 ounce 24 'sleep shots' retails for approximately $20.00." Mr. Ferris says the defendants claim the stuff works through three "natural" ingredients: GABA, melatonin and 5-htp. He says he bought Dream Water based on the defendants' "deceptive Dream Water promises . . . lost money as a result" and "experienced none of Dream Water's advertised benefits." Mr. Ferris says the defendants claim, falsely, that their water works better than FDA-approved sleep aids, and push the product as a "safe and effective cure for sleep disorders." But "In reality, defendant has no support whatsoever for these claims. It has conducted no studies examining the safety or effectiveness of its 'proprietary' combination of the effective ingredients in the Dream Water products let alone the products themselves. Defendant is simply selling snake-oil as a purported cure for one of the most important health problems faced by millions of Americans," the complaint states. "Defendant claims that Dream Water is 'all-natural' and that it is 'safe as a warm glass of milk.' But Dream Water includes and promotes the use of melatonin. Medical professionals note that melatonin has 'inconsistent' effects as a sleep aid, that '[t]here are many unanswered questions about melatonin' and that melatonin may lead to daytime drowsiness, headaches, dizziness, stomach discomfort, short-lasting depression symptoms, mild tremor, mild anxiety, irritability, and confusion. Melatonin may interact negatively with a variety of common drugs, including blood- thinning medications (anticoagulants), immunosuppressants, diabetes medications, and birth control pills. People who are pregnant, breast-feeding, and younger than age 20 must be especially careful when taking melatonin. Risks of taking melatonin are thought to increase over time. Upon information and belief, melatonin was recently banned for over-the-counter use in Canada, and has been banned for over the counter use in many European countries for some time. Defendant does not disclose any of melatonin's potential negative effects or implications." Mr. Ferris seeks class damages of less than $5 million for violations of consumer and business law, unfair competition, false advertising, and breach of warranty. A copy of the Complaint in Ferris v. Dream Products, LLC, et al., Case No. 37-2011-00097625 (Calif. Super. Ct., San Diego Cty.), is available at: http://www.courthousenews.com/2011/09/13/DreamWater.pdf The Plaintiffs are represented by: Derrick F. Coleman, Esq. COLEMAN FROST LLP 429 Santa Monica Blvd., #700 Santa Monica, CA 90401 Telephone: (310) 576-7312 ELECTRONIC ARTS: Judge Dismisses Ex-Quarterback's Class Action -------------------------------------------------------------- Jonny Bonner at Courthouse News Service reports that Electronic Arts is off the hook after a federal judge dismissed a former college quarterback's claims that the video game developer based a character on him without permission in the best-selling game "NCAA Football." Ryan Hart, the starting quarterback from 2002 to 2005 for Rutgers State University in New Jersey, filed a right of publicity class action against Electronic Arts in the Superior Court of New Jersey in 2009, claiming the company used his name and likeness without permission. Mr. Hart said Electronic Arts created a virtual player with his exact attributes in four versions of the game, including height and weight, home state, skills and on-field accessories. "NCAA Football," released annually, features more than 100 Division I college football teams and thousands of players from the National Collegiate Athletic Association each year. The game identifies players by jersey number and position, but not by name. The virtual player in question wore Mr. Hart's actual jersey number, 13, a left wrist band and helmet visor -- all attributes shared by the real life Mr. Hart -- and even hailed from Florida. Electronic Arts removed the lawsuit to federal court, and Judge Freda Wolfson allowed Mr. Hart to file a second amended complaint after he left out exactly which aspects of his likeness were included in the game. While the lawsuit was under consideration, the U.S. Supreme Court granted video games First Amendment protection in Brown v. Entertainment Merchants Association. The lawsuit challenged a California statute that "prohibits the sale or rental of 'violent video games' to minors, and requires their packaging to be labeled '18.'" According to that ruling, "Like the protected books, plays, and movies that preceded them, video games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection." Mr. Hart contended that "NCAA Football" constituted commercial speech and was not afforded extensive First Amendment protections. But Judge Wolfson rejected that argument, finding that the video game is a work of art because players create custom athletes -- changing characters' hair color, skill levels and a variety of other attributes. Judge Wolfson underscored the creative aspect of making a video game. "Viewed as a whole, there are sufficient elements of EA's own expression found in the game that justify the conclusion that its use of Hart's image is transformative and, therefore, entitled to First Amendment protection . . . the NCAA Football game contains 'virtual stadiums, athletes, coaches, fans, sound effects, music, and commentary, all of which are created or compiled by the games' designers.'" Judge Wolfson said three factors, as established by Facenda v. N.F.L. Films Inc., were to be used when identifying commercial speech: "(1) is the speech an advertisement; (2) does the speech refer to a specific product or service; and (3) does the speaker have an economic motivation for the speech." "NCAA Football" doesn't qualify under those factors, Judge Wolfson found. "Whatever First Amendment protection is afforded to commercial speech, 'NCAA Football' is not commercial speech," Judge Wolfson wrote. "Defendant's First Amendment right to free expression outweighs plaintiff's right of publicity." The judge granted Electronic Arts' motion for summary judgment. College athletes are currently prohibited from entering into licensing agreement, and Electronic Arts Sports may use NCAA team trademarks, uniforms and logos via agreements with the Collegiate Licensing Company. The lawsuit is not the first against Electronic Arts. In February 2010, a 9th Circuit judge allowed a similar lawsuit by former Arizona State University and University of Nebraska quarterback Samuel Keller to proceed, which Electronic Arts has appealed. And in May, a federal court in San Francisco rejected a licensing complaint from Ed O'Bannon, former basketball standout at University of California, Los Angeles against Electronic Arts, the NCAA and the College Licensing Company. Mr. Hart led the Scarlet Knights to the 2005 Insight Bowl and finished as the school all-time leader in passing completions and attempts. He now works in insurance. A copy of the Opinion in Hart v. Electronic Arts, Inc., et al., Case No. 09-cv-05990 (D. N.J.), is available at: http://www.courthousenews.com/2011/09/13/ea%20hart.pdf FARMERS NEW WORLD: Fairbanks Suit Won't Proceed as Class Action --------------------------------------------------------------- The Court of Appeals of California, Second District, affirmed a trial court order denying class certification of the complaint captioned Pauline Fairbanks, et al. v. Farmers New World Life Insurance Co., et al., Case No. B216742 (Calif. App. Ct.). Plaintiffs allege violations of the Unfair Competition Law in connection with Farmers' marketing and sale of universal life insurance policies. The trial court denied the motion for class certification on the basis that common issues did not prevail, specifically concluding that Farmers did not use a common marketing strategy with respect to the policies. Plaintiffs appealed the denial order. The Appellate Court agreed with the trial court's findings that there is an absence of a common marketing scheme used by Farmers. The Appellate Court also agreed with the trial court that it is impossible to determine, as a matter of common proof, whether the allegedly misrepresented permanence of the Farmers policies was material to the entire class of Farmers policyholders. Farmers shall recover its costs on appeal from plaintiffs, the Appellate Court ruled. A copy of the Appellate Court's July 13, 2011 ruling is available for free at http://is.gd/CmHipCfrom Leagle.com. Counsel for Plaintiffs are: Robert S. Gerstein, Esq. LAW OFFICE OF ROBERT S. GERSTEIN 12400 Wilshire Boulevard, Suite 1300 Los Angeles CA 90025-1032 Tel: 310-820-1939 Fax: 310-820-1917 - and - Scott A. Marks, Esq. THE MARKS LAW FIRM 21900 Burbank Blvd., Third Floor Woodland Hills, CA 91367 Tel: 866-640-9062 Fax: 818-992-3181 E-mail: themarkslawfirm@aol.com - and - John T. Nockleby Professor of Law and Director of Civil Justice Program LOYOLA LAW SCHOOL 919 Albany St. Los Angeles, CA 90015-1211 Tel: (213) 736-1163 Fax: (213) 380-3769 E-mail: john.nockleby@lls.edu - and - John A. Girardi, Esq. GIRARDI KEESE 1126 Wilshire Boulevard Los Angeles CA 90017 Tel: 213-977-0211 Fax: 213-481-1554 Counsel for Defendants are: Peter H. Mason, Esq. Richard R. Mainland, Esq. Joshua D. Lichtman, Esq. Eric A. Herzog, Esq. FULBRIGHT & JAWORSKI L.L.P. 555 South Flower Street Forty-First Floor Los Angeles, CA 90071 Tel: 213-892-9200 Fax: 213-892-9494 E-mail: pmason@fulbright.com rmainland@fulbright.com eherzog@fulbright.com GREAT ATLANTIC: Accused in N.J. Suit of Misleading Shareholders --------------------------------------------------------------- Dan McCue at Courthouse News Service reports that top directors of A&P supermarkets sold $430 million of shares at inflated prices by lying to investors to disguise the company's desperate financial straits, and when the truth came out the share price dropped by 70% in a single day, a shareholder says in a federal class action. In a bit of unsettling irony, the 33-page complaint was filed the week after a new book, "The Great A&P and the Struggle for Small Business in America," received glowing reviews in print and on radio, for its tale of a "stunningly successful company that forever changed how Americans shop and what Americans eat," according to its description on Amazon.com. While that may once have so, named plaintiff Ricky Dudley says that from July 2009 to December 2010, the operation of the storied company was nothing to be proud of. Mr. Dudley says that during that time, CEO Christian W.E. Haub and five codefendants on the board's executive committee participated in a scheme "that operated as a fraud or deceit on purchasers of A&P securities by disseminating materially false and misleading statements and/or concealing material adverse facts." He claims the scheme enabled A&P to sell more than $430 million in shares at inflated prices. Mr. Dudley cites a series of A&P press releases stating that despite financial difficulties associated with A&P's $1.3 billion purchase of the Pathmark supermarket chain in March 2007, a "major investment agreement" would "strengthen [the Company's] balance sheet" and significantly increase the liquidity available to pursue its business strategy. Mr. Dudley says the first of these press releases stated that the infusion of $175 million from the German investment firm Tengelmann Warenhandelsgesellschaft KG, and the Yucaipa Companies, a former owner of Pathmark, would "unlock shareholder value" and better position the company to compete in the dynamic food retail industry. Citing the press release, Mr. Dudley says A&P acknowledged that the Pathmark purchase would continue to weigh on earnings, but said the strategic investment in the company will "well-position us to generate long-term growth overtime and once the overall economy improves." Mr. Dudley says these statements were materially false and misleading for a number of reasons: A&P was facing increased low- cost competition from retailers such as Wal-Mart and Target Corp.; Pathmark's operations were in far worse condition than investors were told; and A&P was not operating according to internal expectation and could not achieve the guidance sponsored and/or endorsed by the defendants. The string of positive news from A&P led to strong demand for a public offering of $260 million in shares in 2009, Mr. Dudley says. Then in January 2010, A&P announced a sudden "'impairment charge' of almost $413 million," and said that for the third quarter of 2009, the company would report a loss of $502.4 million, which included charges of $412.6 million for "goodwill, trademark and long-lived asset impairment and $16 million for mark to market adjustments related to financial liabilities." By comparison, losses from continuing operations for the previous year had been only $3.8 million, and the supermarket's financial statements included income of $23 million for mark to market adjustments to financial liabilities. Despite this worrying news, Mr. Dudley says, Mr. Haub continued to try to spin corporate statements, telling investors, "The good news is that we have identified several critical issues within our organization that will lead us back to market performance." But in December 2010, "A&P shocked and alarmed investors after they revealed, for the first time, that the company was performing so far below expectations and that the purported turnaround program was failing so miserably that the company would likely to be forced to file for bankruptcy protection," according to the complaint. Mr. Dudley seeks compensatory damages and extraordinary, equitable, and/or injunctive relief on behalf of the class for Exchange Act violations. A copy of the Complaint in Dudley v. Haub, et al., Case No. 11-cv- _____ docketed as Doc. 12754 in Case No. 33-av-00001 on Sept. 9, 2011 (D. N.J.), is available at: http://www.courthousenews.com/2011/09/13/A&P.pdf The Plaintiff is represented by: Peter S. Pearlman, Esq. COHN LIFLAND PEARLMAN HERRMAN & KNOPF LLP Park 80 West-Plaza One 250 Pehle Ave., Suite 401 Saddle Brook, NJ 07663 Telephone: (201) 845-9600 E-mail: psp@njlawfirm.com - and - Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 E-mail: SRudman@rgrdlaw.com HIGHLAND TOWN, IL: Settles Class Action Over Flood Damage --------------------------------------------------------- Michelle L. Quinn, writing for Post-Tribune, reports that taxpayers will be on the hook as the town of Highland settles a 2006 class-action lawsuit over flood damage, but the amount is expected to be negligible and easily paid off. The Town Council at its Sept. 12 meeting voted unanimously to pass an ordinance allowing the Sanitary Board to issue bonds totaling no more than $800,000 to cover the town's $780,000 portion of a $1,950,000 settlement for the victims of that flood. It also voted unanimously in favor of a resolution approving of the settlement. The town's former insurer, Scotsdale Insurance, will pick up the remaining $1,170,000, Clerk-Treasurer Michael Griffin said. Settling the class-action suit does two things for the town, Mr. Griffin said: It allows the town to clear the suit off its books, which in turn will allow for better insurance rates in the long run, and it keeps the case from going to trial, though Town Attorney Rhett Tauber felt Highland had a strong case to win. "The town has $5 million in tort exposure," Mr. Tauber said. "What could happen if this had gone to the jury is anyone's guess." The bond will be paid for through property taxes, then reimbursed through the Sanitary District, which collects $10,000 per month in user fees, for a total of $120,000 per year, Mr. Griffin said. Since the process of settling the suit has just started, Highland will likely make an interest payment on the bonds during the remainder of 2012, then will divide the principle payments over the next two years. In any case, unless something drastic happens, residents shouldn't see a perceptible rate hike from the bonds. "I'd be surprised," Mr. Griffin said. "If the (assessed value) of the town stays the same or goes up, then virtually nothing will change. If the AV drops, however, then you'll see it." Approximately 230 members of the lawsuit will gain from the money, Mr. Griffin said, though he didn't know what their portions would be. In related information, Public Works Director John Bach said some 1,600 households and businesses should receive a letter this week from the Federal Emergency Management Agency telling them their flood-plain properties have been reclassified and that, because of that, they can reduce or drop flood-plain insurance if they choose. At the very least, premiums on those policies would be reduced because of the lower-risk classification. JOHNSON RODENBURG: Debt Collection Suit Denied Class Certification ------------------------------------------------------------------ Judge David S. Doty of the U.S. District Court for the District of Minnesota denied class certification of the complaint entitled Joseph Atwood, on behalf of himself and all others similarly situated v. Johnson, Rodenburg & Lauinger, PLLP, Case No. 10-3837 (D. Minn.). The complaint arises out of attempts to collect consumer debt by JRL from Minnesota residents. JRL served as debt collector for various entities the residents owe debts to. JRL is alleged to have sent two collection letters to the residents within a 30-day period. Plaintiff argued that the court should read the mailbox rule into 15 U.S.C. Section 1692a(3), and interpret the statute to prevent a debt collector from sending information to a consumer for 30 days. But Judge Doty held that the Court cannot say that common questions in the matter predominate, and thus denial of the certification motion is warranted. Plaintiff also failed to show that a class action is the superior means of litigation, Judge Doty said. Moreover, Judge Doty said individual consumers would be harmed by proceeding as a class. A copy of the District Court's Aug. 1, 2011 order is available at http://is.gd/OAUl0nfrom Leagle.com. KOSS CORP: District Court Dismissed Accountant in Securities Suit ----------------------------------------------------------------- Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin granted, in part, and denied, in part, a motion to dismiss filed in the class action lawsuit captioned David A. Puskala, individually and on behalf of all others similarly situated v. Koss Corporation, Michael J. Koss, Sujata Sachdeva, and Grant Thornton, LLP, Case No. 10-C-0041 (E.D. Wis.). The complaint alleges securities fraud, arising out of the embezzlement of over $30 million from the Koss Corporation by Sujata Sachdeva, the company's vice president of finance, secretary and principal accounting officer. The company, its CEO and former accounting firm are also named as defendants, who all have sought dismissal of the complaint. Plaintiff brought claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Section 10(b) forbids the use or employment of any deceptive device in connection with the purchase or sale of any security. Section 20(a) provides that any person who "controls, directly or indirectly, any person liable" under the securities laws is jointly and severally liable. Judge Adelman's ruling provides that: * the Section 10(b) and Rule 10b-5 claim against Michael J. Koss is dismissed; * the Section 10(b) and Rule 10b-5 claim against Koss Corp. and the Section 20(a) claim against Michael J. Koss survive; and * Grant Thornton's motion to dismiss is granted. A copy of the District Court's July 28, 2011 Decision and Order is available for free at http://is.gd/ZLgAaQfrom Leagle.com L-3 SERVICES: Krajina Genocide Victims' Class Action Can Proceed ---------------------------------------------------------------- Jack Bouboushian at Courthouse News Service reports that Ethnic Serbs accusing a large defense contractor of arming the Croatian troops that committed genocide in the Krajina region can proceed with a class action in the Northern District of Illinois, where thousands of victims reside, a federal judge ruled. Operation Storm, the largest European land offensive since World War II, killed or displaced more than 200,000 Serbs in 1995, according to the 2010 complaint filed by Genocide Victims of Krajina. The umbrella group is seeking billions of dollars in damages from defense contractor L-3 Communications and its subsidiary, Military Professional Resources Inc. (MPRI), a corporation they say was founded by U.S. military officers who were downsized at the end of the Cold War. MPRI staff allegedly helped the Croatian army plan and train for the attack, and it monitored and assisted the execution of the operation. The complaint says that a division of L-3, "negotiated a contract to train and modernize the Croatian Army into a competent fighting force able to invade the Krajina region and expel the ethnic Serbian population from Croatian territory." Virginia-based L-3 asked the court to dismiss the case for lack of jurisdiction, or alternatively, to transfer the case to the Southern District of New York or the Eastern District of Virginia. The contractor argued that either of these courts would be more convenient for the witnesses and parties involved. U.S. District Judge Ruben Castillo refused on both counts, finding ample evidence that the Northern District of Illinois has jurisdiction over L-3. L-3 conducted over $19 million worth of business in Illinois in 2010, including $2 million in sales came from MPRI, according to the 21-page decision. L-3 also employs about 100 people in Illinois, including MPRI personnel, and regularly solicits business in Illinois by communicating with Illinois-based companies and attending trade shows in the state. Though L-3 made a more compelling argument for transfer of venue, Judge Castillo decided to keep the case in Illinois since it offers the best access to evidence and witnesses. Genocide Victims of Krajina provided affidavits from the Serbian Consulate in Chicago and the Diocese of the Serbian Orthodox Church "estimating that the number of Krajina refugees in the Chicago area is in the thousands, more than any other area outside of Serbia itself," Judge Castillo said. "These individuals are members of a refugee community struggling to rebuild their lives, and the supportive Serbian community in the Chicago area overwhelmingly makes the Northern District of Illinois a more convenient forum," Judge Castillo added. L-3 made a compelling argument for the Eastern District of Virginia's interest in regulating the actions of a Virginia-based military contractor, according to the ruling. But this interest "must be weighed against the interests of the Northern District of Illinois in redressing the wrongs done to its citizens." "L-3 is an international corporation with billions of dollars in revenue and an expertise in logistics," the Aug. 17 decision states. "While L-3 is headquartered in Virginia, it can bear the expense of litigating in Illinois. Plaintiffs, on the other hand, are refugees from a brutal conflict." The court urged both parties to reconsider their settlement positions in light of its decision and exhaust all efforts to settle the case. A status meeting is set for Sept. 27 at 9:45 a.m. A copy of the Memorandum Opinion and Order in Genocide Victims of Krajina v. L-3 Services, Inc., Case No. 10-cv-05197 (N.D. Ill.), is available at: http://www.courthousenews.com/2011/09/13/krajina.pdf MEDTRONIC INC: Records $221M Expense Over Fidelis Suit Settlement ----------------------------------------------------------------- Medtronic, Inc., recorded an expense of $221 million related to probable and reasonably estimated damages in connection with its settlement of lawsuits over its Sprint Fidelis family of defibrillation leads, according to the Company's September 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 29, 2011. On October 15, 2007, the Company voluntarily suspended worldwide distribution of its Sprint Fidelis (Fidelis) family of defibrillation leads. As of April 29, 2011, approximately 4,000 lawsuits regarding the Fidelis leads had been filed against the Company, including approximately 47 putative class action lawsuits reflecting a total of approximately 9,000 individual personal injury cases. Approximately 2,800 of the lawsuits were commenced in Minnesota state court and approximately 1,200 were consolidated for pretrial proceedings before a single federal judge in the U.S. District Court for the District of Minnesota pursuant to the Multi-District Litigation (MDL) rules. On January 5, 2009, the MDL court dismissed with prejudice the master consolidated complaint for individuals and the master consolidated complaint for third-party payors on grounds of federal preemption. The state court judge dismissed the state court cases on similar grounds on October 22, 2009. Plaintiffs sought appeals in both the federal and state court matters. The Minnesota Court of Appeals dismissed the appeal on May 16, 2011. On October 15, 2010, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of plaintiffs' claims. On October 29, 2010, plaintiffs petitioned the Eighth Circuit for rehearing of their appeal. On June 14, 2011, the Eighth Circuit dismissed this petition for rehearing. The Company announced on October 14, 2010, that it had entered into an agreement to settle the pending lawsuits as well as certain unfiled claims subject to opt-out rights by both plaintiffs and the Company, including the Company's right to cancel the agreement. The terms of the agreement stipulated that, if Medtronic elected not to cancel the agreement, it would pay plaintiffs to settle substantially all pending U.S. lawsuits and claims, subject to certain conditions. The parties subsequently reached an adjusted settlement agreement pursuant to which Medtronic waived its right to cancel the agreement and agreed to pay a total of $221 million to resolve over 14,000 filed and unfiled claims. Accordingly, the Company recorded an expense of $221 million related to probable and reasonably estimated damages under U.S. GAAP in connection with these matters in fiscal year 2011. In addition, one putative class action has been filed in the Ontario Superior Court of Justice in Canada. On October 20, 2009, that court certified a class proceeding, but denied class certification on plaintiffs' claim for punitive damages, which the plaintiffs appealed. On July 16, 2010, the appeal was denied. Plaintiffs' request for further appeal was denied on November 22, 2010. The Company has not recorded an expense related to damages in connection with that matter because any potential loss is not currently probable or reasonably estimable under U.S. GAAP. Additionally, the Company cannot reasonably estimate the range of loss, if any, that may result from this matter. MEDTRONIC INC: "INFUSE" Suit Still Pending in Minnesota ------------------------------------------------------- A putative class action lawsuit commenced by the Minneapolis Firefighters' Relief Association is still pending in Minnesota, according to Medtronic, Inc.'s September 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 29, 2011. On December 10, 2008, the Minneapolis Firefighters' Relief Association filed a putative class action complaint against the Company and certain current and former officers in the U.S. District Court for the District of Minnesota, alleging violations of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. The complaint alleges that the defendants made false and misleading public statements concerning the INFUSE Bone Graft product which artificially inflated Medtronic's stock price during the period. On August 21, 2009, plaintiffs filed a consolidated putative class action complaint expanding the class. Medtronic's motion to dismiss the consolidated complaint was denied on February 3, 2010, and pretrial proceedings are underway. The Company has not recorded an expense related to damages in connection with this matter because any potential loss is not currently probable or reasonably estimable under U.S. GAAP. Additionally, the Company cannot reasonably estimate the range of loss, if any, that may result from this matter. META FINANCIAL: Iowa Court Denies Bid to Dismiss Securities Suit ---------------------------------------------------------------- Judge Mark W. Bennett of the U.S. District Court for the Northern District of Iowa denied a motion to dismiss the amended complaint in In re Meta Financial Group, Inc., Securities Litigation, Case No. C-10-4108-MWB (N.D. Iowa). In the amended complaint, Plaintiffs seek, on behalf of themselves and a putative class of purchasers of common stock of Meta Financial, damages and injunctive relief on claims of securities fraud against Meta Financial and against certain officers of MetaBank and/or Meta Trust Company. Plaintiffs allege that Defendants published a series of materially false statements about Meta Financial's operations and finances. They also assert that the individual defendants should be liable for Meta Financial's fraudulent actions as "control persons." Defendants sought to dismiss the amended complaint. Judge Bennett held that the plaintiffs have adequately plead both their securities fraud claim and "control person" claim. A full-text copy of the District Court' July 18, 2011 memorandum opinion and order is available at http://is.gd/VlVluFfrom Leagle.com NATALIE SALON: Faces Class Action Over Wage Violations ------------------------------------------------------ Dan McMenamin, writing for Bay City News Service, reports that a class action lawsuit was filed in San Mateo County Superior Court on Sept. 13 against a popular nail salon chain accused of wage theft and other violations against their employees, an attorney with the Asian Law Caucus said on Sept. 13. Natalie Salon, a chain with locations in Redwood City, San Mateo, Palo Alto, Los Gatos and Menlo Park, is being sued by four current and former employees with the assistance of the San Francisco- based Asian Law Caucus, which held a news conference on Sept. 13 to announce the lawsuit. "On behalf of all former and current employees, we're seeking to end unlawful business practices" at the salons, said Winnie Kao, staff attorney at the Asian Law Caucus. Vicky Tran, who worked at various Natalie Salons for about five years, said she often worked for more than 10 hours a day, but never got paid overtime and often had to delay her lunch meal until very late in the day. "It's wrong to treat the employees that way," Ms. Tran said. Natalie Salon management was not immediately available for comment on the lawsuit. Ms. Kao said the Asian Law Caucus got involved in the case after one of the employees came to a free clinic the group held and told them about the alleged violations. She said the Asian Law Caucus has kept a watchful eye on the nail salon industry, which has seen the number of salons triple in the U.S. in the past decade, changing the business "from a luxury service to a relatively inexpensive indulgence." Of the roughly 96,000 licensed nail salon workers in California, it is estimated that more than half are Vietnamese, and the vast majority are women who are recent immigrants with limited English proficiency and lack of knowledge about their rights. Ms. Kao said those factors lead to many workers who are too scared to come forward and report possible misdeeds by employers. "Beauty shouldn't come at the expense of workers' rights," she said. The lawsuit seeks reimbursement for all employees at the salons who may have lost wages over the past four years and seeks to stop the allegedly unlawful practices at the salons, Ms. Kao said. NAVISTAR INT'L: Hearing on Class Motion vs. Units Continued ----------------------------------------------------------- The hearing on the motion to authorize the bringing of a class action lawsuit against Navistar International Corporation's subsidiaries was continued to an as yet undetermined date, according to the Company's September 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 31, 2011. On May 20, 2011, 9046-9478 Quebec Inc. ("Quebec") filed a motion to authorize the bringing of a class action against Navistar, Inc. and Navistar Canada, Inc. (collectively, "Navistar Defendants"), as well as Ford Motor Company and Ford Motor Company of Canada, Limited (collectively, "Ford Defendants") in Superior Court in Quebec, Canada (the "Quebec Action"). The Quebec Action seeks authorization to bring a claim on behalf of a class of Canadian owners and lessees of model year 2003-07 Ford vehicles powered by the 6.0L Power Stroke(R) engine that Navistar, Inc. previously supplied to Ford. Quebec alleged that the engines in question have design and manufacturing defects, and that Navistar Defendants and Ford Defendants are solidarily liable for those defects. For relief, the Quebec Action seeks dollar damages sufficient to remedy the alleged defects, compensate the alleged damages incurred by the proposed class, and compensate plaintiffs' counsel. The Quebec Action also asks the Court to order the Navistar Defendants and the Ford Defendants to recall, repair, or replace the Ford vehicles at issue free of charge. The motion to authorize the bringing of the class action was presented on August 2, 2011, and the hearing was continued to an as yet undetermined date. NAVISTAR INT'L: Unit Not Named in 6.0 Liter Diesel Engine MDL ------------------------------------------------------------- Plaintiffs in the 6.0 Liter Diesel Engine multidistrict litigation filed a master class action complaint, which does not name Navistar International Corporation or its subsidiary as a defendant, according to the Company's September 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 31, 2011. In November 2010, Brandon Burns filed a putative class action lawsuit against the Company's subsidiary, Navistar, Inc. and Ford Motor Company in federal court for the Southern District of California (the "Burns Action"). The Burns Action sought to certify a class of California owners and lessees of model year 2003-07 Ford vehicles powered by the 6.0L Power Stroke(R) engine that Navistar, Inc. previously supplied to Ford. Mr. Burns alleges that the engines in question have design and manufacturing defects. Mr. Burns asserted claims against Navistar, Inc. for negligent performance of contractual duty (related to Navistar's former contract with Ford), unfair competition, and unjust enrichment. For relief, the Burns Action sought dollar damages sufficient to remedy the alleged defects, compensate the alleged damages incurred by the proposed class, and compensate plaintiffs' counsel. The Burns Action also asked the Court to award punitive damages and restitution/disgorgement. After the Burns Action was filed, nineteen additional putative class action lawsuits making materially identical allegations against Navistar, Inc. were filed in federal courts across the country (the "Additional Actions" and, collectively with the Burns Action, the "6.0 L Diesel Engine Litigation"). The Additional Actions sought to certify in several different states classes similar to the proposed California class in the Burns Action. The theories of liability and relief sought in the Additional Actions were substantially similar to the Burns Action. In December 2010, Navistar, Inc. filed a motion to dismiss the Burns Action. Burns filed a response on February 14, 2011, and Navistar, Inc. filed a reply on February 22, 2011. Navistar, Inc. filed answers and affirmative defenses in six of the Additional Actions. In April and May 2011, the Judicial Panel on Multidistrict Litigation transferred Burns and all but one of the Additional Actions to the Northern District of Illinois, where the Custom Underground case (another similar case pending in Chicago, where Navistar, Inc. is not a defendant) is pending, for consolidated pre-trial proceedings ("MDL"). On May 18, 2011, all plaintiffs in the consolidated matter filed a voluntary Notice of Dismissal dismissing Navistar, Inc. without prejudice, leaving Ford as the only defendant in the 6.0L Diesel Engine Litigation. In June 2011, the New York class action filed by Richard Saxby was transferred to the MDL court. In July 2011, plaintiffs in the MDL filed "Plaintiffs' Master Class Action Complaint," which does not name Navistar as a defendant or Saxby as a plaintiff. NCAA: Attorney Files Medical Monitoring Class Action ---------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that a Chicago attorney has filed a class action lawsuit against the National Collegiate Athletic Association, alleging it isn't protecting football players and other student-athletes from sustaining concussions. Joseph Siprut filed the lawsuit on Sept. 13 on behalf of plaintiff Adrian Arrington, a 25-year-old former player on Eastern Illinois University's football team. The two have also moved to certify those similarly situated as Arrington as a class. "For over 30 years, the NCAA has failed its student-athletes - choosing instead to sacrifice them on an altar of money and profits," Mr. Siprut wrote in the complaint. "The NCAA has engaged in a long-established pattern of negligence and inaction with respect to concussions and concussion-related maladies sustained by its student-athletes, all the while profiting immensely from those same student-athletes." The complaint says the NCAA has ignored studies that show repeated concussions are linked to early-onset dementia, Alzheimer's disease, depression and lowered cognitive abilities. The NCAA is alleged to have: -- Failed to address or correct the coaching of tackling methodologies that cause head injuries; -- Failed to implement system-wide "return to play" guidelines for players who have sustained concussions; -- Failed to implement guidelines for the screening and detection of head injuries; -- Failed to implement legislation addressing the treatment and eligibility of players who have sustained multiple concussions; and -- Failed to implement a support system for players who are unable to play football or lead a normal life after sustaining concussions. "On average, the NCAA makes over $740 million in revenue each year," the complaint says. "Unlike professional sports organizations, the NCAA does not use revenues to pay its athletes, nor does the money go towards pension or medical benefits for post-collegiate athletes. "The NCAA gives no medical or financial support to post-collegiate student-athletes who sustained concussions while playing an NCAA sport and who then cope with the costs and care needed resulting from their injuries." The complaint also alleges the NCAA has been ignoring studies put out by the University of North Carolina that link head injuries to early-onset Alzheimer's disease. Mr. Arrington, a safety on the EIU team from 2006-09 suffered numerous concussions while playing -- "At no time was Arrington coached on how to make safer tackles," the complaint says. Mr. Siprut seeks medical monitoring and financial recovery for long-term and chronic injuries, as well as financial losses, expenses and intangible losses caused by the NCAA. A medical monitoring fund would provide future medical care to monitor possible concussion-related illnesses. Medical monitoring claims have been criticized because, as West Virginia Supreme Court Justice Menis Ketchum wrote in a dissenting opinion last year, defendants are forced to pay damages where "no actual harm has occurred." NEWS CORP: US Investors Expand Phone Hacking Class Action --------------------------------------------------------- Ben Fenton, Caroline Binham and Andrew Edgecliffe-Johnson at The Financial Times report that pressure on News Corp. over its phone- hacking scandal is rising on three continents with fresh legal and political challenges. James Murdoch, the media group's deputy chief operating officer and son of its chief executive Rupert, was on Sept. 16 recalled to a UK parliamentary committee to clear up accusations that he may have misled MPs. The recall came as thousands more documents relating to the phone-hacking scandal emerged. US investors also expanded a class action against his father Rupert's media group, claiming that it had a "historic pattern of corruption". And the Australian government prepared plans for an independent inquiry into media standards and regulation. James Murdoch said he would be happy to face a House of Commons select committee again in London. He is likely to appear some time in November. Other former executives of the paper last week challenged earlier evidence given by James Murdoch in a tense hearing before the same committee in July when he said he had not been told about an e-mail that suggested more than one journalist had used the illegal technique of phone hacking. The e-mail is seen by committee members as a sign that senior executives at the company covered up an extensive scandal by claiming only a single "rogue reporter" had been responsible for phone hacking. The news came as it emerged that a big cache of previously unknown documents has been discovered by News Group -- which owns The Sun and the now defunct News of the World and which is part of News Corp.'s subsidiary News International -- that could have a "significant" bearing on claims being brought by victims of alleged phone hacking. Lawyers for the victims have been given a document by investigating police listing those who asked a private detective to intercept mobile voicemail messages. It runs to 68 pages, but it is not known how many names are included. The small US union and pension fund investors suing News Corp in Delaware are led by Amalgamated Bank, the New Orleans Employees' Retirement System and Central Laborers' Pension Fund. They have not said how much they are seeking and News Corp has already moved to dismiss the original complaint they filed in March. The second amendment to their complaint, filed on Sept. 13, accused News Corp.'s board of "repeated failures to correct illegal conduct", claiming that verdicts against its News America Marketing subsidiary and NDS affiliate should have made directors "well aware of widespread misconduct" by the time they were first alerted to allegations of phone hacking. News Corp. declined to comment on the new allegations. It also emerged on Sept. 13 that Sheila Henry, the mother of a man killed in the July 2005 bombings in London, has filed a civil claim against the News of the World stating that her phone was hacked. It will be one of six test cases heard in January. Jay Eisenhofer, a partner with Grant & Eisenhofer, the law firm representing the shareholders, told the Financial Times that the court was likely to rule on the motion to dismiss within about six months. The amended lawsuit focuses on five past lawsuits alleging anti- competitive behavior, including computer hacking, at News America Marketing, an in-store marketer, and separate accusations by Echostar, the US satellite group, that its NDS set-top box smartcard affiliate had illegally cracked rivals' software codes. In the NDS case, a jury ruled in favor of Echostar on three of six counts but awarded actual damages of just $45.69 and statutory damages of only $1,000. After a successful appeal by NDS to a federal appeals court, Echostar was instructed to pay NDS's legal costs of US$18 million. NDS and News Corp have said the allegations are baseless. In 2009, News Corp agreed to pay $29.5 million to acquire Floorgraphics, the company that in 2004 alleged hacking by News America Marketing, and settle its suit. News Corp has denied the charges and said it condemned the alleged conduct, which was in violation of its standards. The amended lawsuit also alleges that board members breached their fiduciary duty in approving a share buy-back of up to US$5 billion, which could increase the Murdoch family's control of voting rights in News Corp from the current level of almost 40%. News Corp has bought back almost $900 million of stock under the program in 20 trading days, Rich Greenfield, a BTIG analyst, calculated on Sept. 13, but the company has not bought back the B shares, which carry voting rights. NFLPA: Retirees File Class Action Over Lockouts ----------------------------------------------- A group of 28 retired NFL players, including Hall of Famers Carl Eller, Chuck Bednarik and John Hannah, filed a federal class- action lawsuit on Sept. 13 against the NFL Players Association, union president DeMaurice Smith, New England Patriots quarterback Tom Brady and former player Mike Vrabel. The suit claims that once the NFLPA decertified March 11, just prior to being locked out by the NFL, the defendants had "no authority" to negotiate, let alone agree to, the terms of retiree benefits during the labor dispute. "They were not a union at that time," Michael Hausfeld, the plaintiffs' lawyer, told Yahoo! Sports. As such, any agreement concerning pension, retiree health care or other issues was not properly agreed, Mr. Hausfeld said. The suit seeks a declaration that the "right to negotiate with the League the rights and benefits for NFL retirees" rests with the Eller plaintiffs. Mr. Hausfeld said the lawsuit does not threaten the labor peace reached by last month's collective bargaining agreement, which saved the 2011 season. The 51-page suit was filed in United States District Court in Minnesota. George Atallah, the NFLPA's assistant executive director of external affairs, declined comment on the suit. The individual players could not be immediately reached for comment. The goal of the suit, which represents all former NFL players, is "to readjust the deal to better reflect the interests of the retirees which would've been done by the retirees themselves," according to Mr. Hausfeld, who represented Mr. Eller and other retirees during parts of the labor negotiation process. "This deals with the rights of retirees and how they were shortchanged by a process that negotiated their rights without input from them and then [how the decertified NFLPA] reached an agreement without the retirees' right to be heard," Mr. Hausfeld said. Messrs. Brady and Vrabel, who has since retired and become an assistant coach at Ohio State, were singled out for being named participants in the since settled Brady, et al v NFL suit. The suit includes 23 members of the Pro Football Hall of Fame, including Bednarik, Eller, Hannah, Dan Hampton, Paul Krause, Lemuel Barney, Mel Renfro and Elvin Bethea among others. "When the union decertified and relinquished all collective representative rights, it lost all labor law protection," Mr. Hausfeld said. "The interests that they had historically compromised, in the context of collective bargaining, they no longer had the authority to compromise. "After decertification they emerged having concluded an agreement with the league that fixed key benefits and rights for retirees." The suit claims current players used the retirees' interests as bargaining collateral. "The retirees rights were sacrificed for the benefit of the active players." Mr. Hausfeld said the CBA does address a number of critical concerns for retirees, but applies them to the current players. "It addresses the safety and health of the active players that the older players were subject to, such as repeated concussions, helmet-to-helmet contact and being the guinea pigs for AstroTurf," Mr. Hausfeld said. This fits a trend, according to the lawsuit, which claims, "during recent years the NFLPA has consistently favored the interests of active NFL players at the expense of NFL retiree's rights and benefits." PACIFIC SUNWEAR: Hearing Set for Sept. 23 in Wage and Hour Suits ---------------------------------------------------------------- The first status conference hearing on the coordinated wage and hour lawsuits against Pacific Sunwear of California, Inc., will be held on September 23, 2011, according to the Company's September 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 30, 2011. On January 13, 2011, a plaintiff filed a lawsuit against the Company, captioned Charles Pfeiffer, individually and on behalf of other aggrieved employees vs. Pacific Sunwear of California, Inc. and Pacific Sunwear Stores Corp., Superior Court of California, County of Riverside, Case No. 1100527, alleging violations of California's wage and hour, overtime, meal break and rest break rules and regulations, among other things. The complaint seeks an unspecified amount of damages and penalties. The Company has filed an answer denying all allegations regarding the plaintiff's claims and asserting various defenses. As the ultimate outcome of this matter is uncertain no amounts have been accrued by the Company as of the date of this report. Depending on the actual outcome of this case, provisions could be recorded in the future which may have an adverse effect on the Company's operating results and cash flows. On March 21, 2011, a plaintiff filed a putative class action lawsuit, captioned Phillip Gleason, on behalf of himself and others similarly situated vs. Pacific Sunwear of California, Inc., Superior Court of California, County of Los Angeles, Case No. 457654, against the Company alleging violations of California's wage and hour, overtime, meal break and rest break rules and regulations, among other things. The complaint seeks class certification, the appointment of the plaintiff as class representative, and an unspecified amount of damages and penalties. The Company has filed an answer denying all allegations regarding the plaintiff's claims and asserting various defenses. As the ultimate outcome of this matter is uncertain, no amounts have been accrued by the Company as of the date of this report. Depending on the actual outcome of this case, provisions could be recorded in the future which may have an adverse effect on the Company's operating results and cash flows. On March 18, 2011, a plaintiff filed a putative class action lawsuit, captioned Tamara Beeney, individually and on behalf of other members of the general public similarly situated vs. Pacific Sunwear of California, Inc. and Pacific Sunwear Stores Corporation, Superior Court of California, County of Orange, Case No. 30-2011-00459346-CU-OE-CXC, against the Company alleging violations of California's wage and hour, overtime, meal break and rest break rules and regulations, among other things. The complaint seeks class certification, the appointment of the plaintiff as class representative, and an unspecified amount of damages and penalties. The Company has filed an answer denying all allegations regarding the plaintiff's claims and asserting various defenses. As the ultimate outcome of this matter is uncertain, no amounts have been accrued by the Company as of the date of this report. Depending on the actual outcome of this case, provisions could be recorded in the future which may have an adverse effect on the Company's operating results and cash flows. Since the allegations in all three of the cases are substantially similar, the Company filed a motion to coordinate the cases in the Los Angeles Superior Court on April 20, 2011. The motion was granted on June 15, 2011. All discovery in the cases has been stayed pending the first status conference hearing, which will be held on September 23, 2011. PORTNOFF LAW: Attorney's Fees Award in Tax Collection Suit Upheld ----------------------------------------------------------------- The Commonwealth Court of Pennsylvania affirmed a trial court's 2009 orders awarding $1.28 million in attorney's fees and expenses in favor of the plaintiff in the class action complaint styled, Roethlein, et al. v. Portnoff Law Associates, Ltd., et al. Portnoff collects taxes for municipalities and school districts located throughout the Commonwealth. Delinquent taxpayers sued Portnoff for collecting fees in excess of the delinquent taxes owed. Specifically, Delinquent Taxpayers asserted that Portnoff improperly passed the municipality's attorney's fees and administrative fees for Portnoff's collection of delinquent taxes along to Delinquent Taxpayers. The complaint was filed in 2002 in the Court of Common Pleas of Philadelphia County by taxpayer Beverly Roethlein against Portnoff Law, et al., for unjust enrichment and violation of the Pennsylvania Loan Interest and Protection Law (Act 6). The complaint seeks to recover charges paid in connection with the collection of delinquent real estate taxes. Defendants served as private tax collector of the delinquent taxes. A majority of the Commonwealth Court judges opined that the award of attorneys' fees was appropriate under the law. The judges are Johnny J. Butler, Bernard L. McGinley, Dan Pellegrini, and Robert Simpson. Judge Mary Hannah Leavitt dissented. "The majority affirms a class action judgment against a tax collector based upon Act 6 violations and unjust enrichment. Act 6, a usury statute, has zero application to a municipality's collection of delinquent taxes, and unjust enrichment is not available where there is a written contract governing the parties' conduct. To otherwise hold, the majority has accepted plaintiffs' strained legal theories. I cannot and, respectfully, dissent." A copy of the Court's July 15, 2011 opinion is available for free at http://is.gd/JS8PSFfrom Leagle.com. PROTECTIVE LIFE: Ohio Ct. Denies Bid to Dismiss Premiums Lawsuit ---------------------------------------------------------------- Judge Solomon Oliver, Jr., of the U.S. District Court for the Northern District of Ohio rejected a motion to dismiss the class action complaint captioned, Estate of Frank Townsend, et al. v. Protective Life Insurance Company, Case No. 1:19 CV 2365 (N.D. Ohio). Plaintiffs are the Estate of Frank Townsend, Jacqueline Dunn Smith, and Judy Marik. They each purchased a credit insurance policy from Defendant in conjunction with their vehicle purchases. Plaintiffs allege that they each paid the loan off in full before the life of the loan had expired, and that, under the express terms of the policy and the law, they are accordingly entitled to a return of the premium paid for the time period from the date the loan was terminated through the remaining term that was left on the loan at the time it terminated. Judge Oliver agreed with Plaintiff that the express language in the insurance policy -- where the policyholder is prohibited from starting a legal action against the insurer -- applies to actions arising from claims for death or disability benefits, but is inapplicable to actions seeking to recover unearned premiums. The District Court further granted Plaintiffs leave to file an amended class action complaint. A copy of the Court's order dated July 15, 2011, is available for free at http://is.gd/GawZr8from Leagle.com. RALPHS GROCERY: Denial on Bid to Compel Arbitration Remanded ------------------------------------------------------------ The Court of Appeals of California, Second District, reversed a trial court order denying the petition of Ralphs Grocery Company, et al., to compel arbitration in the class action captioned Terri Brown v. Ralphs Grocery Company, et al., Case No. B222689 (Calif. App. Ct.) Plaintiff filed the class action and a representative action under the Private Attorney General Act of 2004 against her employers for alleged violations of the Labor Code. Defendants responded by filing a petition to compel arbitration. The Appellate Court decision, penned by Justice Richard M. Mosk, held that the trial court erred in ruling that under Gentry v. Superior Court (2007) 42 Cal.4th 443, the class action waiver provision in plaintiff's employment agreement was unenforceable because that ruling was not supported by substantial evidence. Judge Mosk also held that the recent decision of the United States Supreme Court in AT&T Mobility LLC v. Concepcion et ux. (2011) --- U.S. --- 131 S.Ct. 1740, holding that California decisional law invalidating class action waivers in consumer arbitration agreements is preempted by the Federal Arbitration Act, does not apply to representative actions under the PAGA, and thus the trial court correctly ruled that the waiver of plaintiff's right to pursue a representative action under the PAGA was not enforceable under California law. The matter is remanded to the trial court for a determination whether the provision in the arbitration agreement waiving plaintiff's right to pursue a representative action under the PAGA can be severed or whether the presence of one invalid provision in the arbitration agreement renders the entire agreement or portions of it unenforceable, the Appellate Court ruled. The parties will bear their own cost. The decision is concurred by Justice Orville A. Armstrong. Justice Sandy J. Kreigler, for his part, concurred with the majority's opinion that the argument that the class action waiver of Ms. Brown's employment contract was unconscionable under the Gentry case, but dissented from the majority's conclusion that Ms. Brown's waiver of the right to file a representative action under the PAGA was unenforceable. A copy of the Appellate Court's July 12, 2011, order is available at http://is.gd/GW7fYQfrom Leagle.com. Counsel for Defendants are: Linda S. Husar, Esq. Steven B. Katz, Esq. REED SMITH 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90071 Tel: 213-457-8140 Fax: 213-457-8080 E-mail: lhusar@reedsmith.com skatz@reedsmith.com Counsel for Plaintiff is: Gene Williams, Esq. Mark P. Pifko, Esq. Arnab Banerjee, Esq. Glenn A. Danas, Esq. INITIATIVE LEGAL GROUP APC 1800 Century Park East, 2nd Floor Los Angeles, CA 90067 Tel: 310-556-5637 Fax: 310-861-9051 E-mail: StephenGamber@InitiativeLegal.com Also appearing in the case are Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Respondent: H. Scott Leviant, Esq. Dennis F. Moss, Esq. Gregory N. Karasik, Esq. J. Mark Moore SPIRO MOSS LLP 11377 West Olympic Boulevard, Fifth Floor Los Angeles, CA 90064-1683 Telephone: (310) 235-2468 Fax: (310) 235-2456 E-mail: info@spiromoss.com - and - David M. Arbogast, Esq. ARBOGAST & BERNS LLP 19510 Ventura Boulevard, Suite 200 Tarzana, CA 91356 Telephone: 818-961-2000 Facsimile: 818-867-4820 E-mail: darbogast@law111.com ROSS STORES: Wage and Hour Suits Still Pending in California ------------------------------------------------------------ Like many California retailers, Ross Stores, Inc., has been named in class action lawsuits regarding wage and hour claims. Class action litigation involving allegations that hourly associates have missed meal and/or rest break periods, as well as allegations of unpaid overtime wages to store managers and assistant store managers at Company stores under state law, remains pending as of July 30, 2011. In the opinion of management, the resolution of pending class action litigation and other currently pending legal proceedings is not expected to have a material adverse effect on the Company's financial condition, results of operations, or cash flows. No further updates were reported in the Company's September 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 30, 2011. SAFELITE SOLUTIONS: Files Motions to Strike Class Action Opt-Ins ---------------------------------------------------------------- Glassbytes reports that Safelite Solutions has motioned a federal court to strike 21 individuals who "filed untimely notices to opt- in" to a class action suit under review in Ohio from the case. The class action suit was filed by a group of customer service representatives (CSRs) last August and is related to allegations related to overtime pay. In the latest motion, Safelite officials allege that individuals were required to have postmarked their opt-in responses within 45 days of the court's April 19 notice, but that these individuals "disregarded the court deadline." They further claim that the plaintiffs' counsel filed "untimely notices on behalf of 21 individuals at various times between June 20, 2011, and continuing until August 24, 2011." While the company points out instances in which a court has extended time in class action suits for plaintiffs to opt in, Safelite officials allege that in this case the plaintiffs did not request permission to file untimely notices, and no circumstances existed that would have made this acceptable. "The untimely notices were filed in contradiction with the court's order and must, therefore, be stricken from the record," writes Safelite's counsel. The class action suit currently contains more that 200 plaintiffs whom Safelite officials say "managed to file timely notices." An October 28 hearing currently is scheduled to review the motion. The suit, filed last August, originally focused on the time CSRs spend booting up their computers each day and the allegation that this time is not calculated into their pay. However, earlier this summer, plaintiffs requested to file an amended complaint that also would seek compensation for the time spent "locating a working computer in a vacant cubicle, securing a headset or other equipment essential to using that computer." The plaintiffs also have said the amended complaint would expand the suit to include sales representatives at the company. SMITH & WESSON: Appeal From Securities Suit Dismissal Pending ------------------------------------------------------------- An appeal from the dismissal of a consolidated securities class action lawsuit against Smith & Wesson Holding Corporation remains pending, according to the Company's September 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended July 31, 2011. The matter known as In re Smith & Wesson Holding Corp. Securities Litigation is a consolidation of the following three cases: William Hwang v. Smith & Wesson Holding Corp., et al.; Joe Cranford v. Smith & Wesson Holding Corp., et al.; and Joanne Trudelle v. Smith & Wesson Holding Corp., et al. It is pending in the United States District Court for the District of Massachusetts (Springfield), and is a purported securities class action lawsuit brought individually and on behalf of all persons who purchased the securities of the Company between June 15, 2007, and December 6, 2007. The putative plaintiffs seek unspecified damages against the Company, certain of its officers, and its directors for alleged violations of Sections 10(b) and 20(a) of the Exchange Act. The Oklahoma Firefighters Pension and Retirement System was appointed Lead Plaintiff of the putative class. On May 30, 2008, Lead Plaintiff filed a Consolidated Class Action Complaint seeking unspecified damages against the Company and several officers and directors for alleged violations of Sections 10(b) and 20(a) of the Exchange Act. On August 28, 2008, the Company and the named officers and directors moved to dismiss the Consolidated Amended Complaint because it failed to state a claim under the federal securities laws and the Private Securities Litigation Reform Act of 1995. The putative class Lead Plaintiff submitted its Opposition to the Company's motion on October 28, 2008. On March 26, 2009, the Company's motion was granted as to Mr. Monheit and denied as to the remaining defendants. On May 11, 2010, the court certified the consolidated action as consisting of a class of persons who purchased securities of the Company between June 15, 2007, and December 6, 2007, and suffered damage as a result. Court scheduled discovery concerning the facts of this action ended on May 28, 2010. Examination of any experts put forth by the parties ended on October 1, 2010. On October 29, 2010, the Company moved for summary disposition of the case. Lead Plaintiff opposed the Company's motion on November 22, 2010, and cross-moved for partial summary judgment. A hearing of this matter was held for December 20, 2010. On March 25, 2011, the court granted the Company's Motion for Summary Judgment as to all remaining defendants, and dismissed the consolidated actions with prejudice. The Lead Plaintiff filed its Notice of Appeal of that dismissal on April 21, 2011. The Lead Plaintiff has not appealed Mr. Monheit's dismissal and the time for such an appeal has now past. The Lead Plaintiff filed its Appellant Brief on July 5, 2011. The Company filed its Opposition to Appellant's Brief on August 22, 2011. The Lead Plaintiff's Reply to the Opposition Brief was due on September 6, 2011. STATE OF CALIFORNIA: Foster Care Class Action Can't Proceed ----------------------------------------------------------- Tim Hull at Courthouse News Service reports that the United States Court of Appeals for the Ninth Circuit on Sept. 13 affirmed dismissal of a proposed class action brought by foster children in Sacramento County against California's Chief Justice Tani Cantil- Sakauye and other court officials over allegedly "crushing and unlawful caseloads" in the county's dependency court. Approximately 5,100 foster children claimed that heavy caseloads in the court violated their federal and state constitutional rights. The case "involves average attorney caseloads and the right to counsel, with remedies potentially involving a substantial interference with the operation of the program, including allocation of the judicial branch budget, establishment of program priorities, and court administration," according to the nine-page decision. A federal judge had granted the officials' motion to dismiss on abstention grounds. The San Francisco-based appellate panel affirmed in an unsigned opinion. "Federal courts may not entertain actions that seek to impose 'an ongoing federal audit of state . . . proceedings,'" the three- judge panel explained. "The District Court properly concluded that 'plaintiffs' challenges to the juvenile dependency court system necessarily require the court to intrude upon the state's administration of its government, and more specifically, its court system,'" it added. "Because the question is one of adequacy of attorney representation, potential remediation might involve examination of the administration of substantial number of individual cases," the decision states. "Thus, we conclude that the declaratory relief sought by plaintiffs so intrudes in the administration of the Sacramento County Dependency Court as to require abstention." A copy of the Opinion in E.T., et al. v. Cantil-Sakauye, et al., Case No. 09-cv-01950 (9th Cir.), is available at: http://is.gd/hmIsCU The Plaintiffs-Appellants were represented by: Edward Howard Esq. CHILDREN'S ADVOCACY INSTITUTE University of San Diego School of Law 5998 Alcala Park San Diego, CA 92110 Telephone: (619) 260-4806 - and - Peter E. Perkowski, Esq. WINSTON & STRAWN, LLP 333 S. Grand Avenue Los Angeles, CA 90071-1543 Telephone: (213) 615-1819 E-mail: pperkowski@winston.com The Defendants-Appellees were represented by: Robert A. Naeve, Esq. JONES DAY 3161 Michelson Drive, Suite 800 Irvine, CA 92612-4408 Telephone: (949) 553-7507 E-mail: rnaeve@jonesday.com TOLL BROS: Calif. App. Ct. Flips Ruling in Labor Violation Suit --------------------------------------------------------------- The Court of Appeals of California, First District, reversed, in part, and affirmed, in part, trial court orders in two class action lawsuits against home builder Toll Bros., Inc. The two lawsuits against the company -- Castillo v. Toll Bros., Inc. (Super. Ct. Alameda County, 2010, No. RG06290188) and Hernandez v. Toll Bros., Inc. (Super. Ct. Alameda County, 2010, No. RG06302769) -- allege wage and labor code violations. The Appellate Court agreed with the trial court's legal findings, including its application of the minimum wage as a standard under Section 2810 of the Labor Code, but concluded that plaintiffs raised a trial issue of fact with respect to the sufficiency of two of the contracts challenged in the Castillo matter. The Appellate Court also affirmed the trial court's grant of summary judgment in the Hernandez action and its grant of summary adjudication of the common law claims in the Castillo matter, but reversed summary adjudication and remanded the case for further proceedings on the Section 2810 claims asserted in Castillo. A copy of the July 28, 2011 Appellate Court decision is available at http://is.gd/t0FDvefrom Leagle.com. WEEHOO INC: Recalls 2,700 Bike Trailers Due to Fall & Crash Risks ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Weehoo Inc., of Golden, Colorado, announced a voluntary recall of about 2,700 Weehoo iGo Bicycle Pedal Trailers. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The receiver on the trailer's seat post hitch can crack and cause the trailer to detach, posing fall and crash hazards to the child in the seat. CPSC and Weehoo have received one report of the trailer's receiver cracking while in use. No injuries have been reported. This recall involves 2011 Weehoo iGo bicycle trailers manufactured between April 2011 and July 2011. The trailer has a steel frame with an adjustable seat for passengers 38 to 52 inches tall, two pedals with straps, an enclosed sprocket and chain, a 20-inch wheel, two pannier pockets, a flagpole and a flag. The seat, pannier pockets, and flag are made of red, heavy-duty nylon. The pannier pockets and the flag have the word "Weehoo" and the logo printed on them in reflective material. The serial numbers for the recalled trailers contain the letter "D" and can be found on the underside of the iGo frame, by the pedals. Picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11323.html The recalled products were manufactured in Taiwan and sold at bicycle retail stores nationwide between April 2011 and July 2011 for about $390. Consumers should immediately stop using the recalled iGo trailers and contact Weehoo for the repair. Consumers will receive a steel reinforcement sleeve to be installed over the receiver. For additional information, contact Weehoo at (800) 538-6950 anytime, or visit the firm's Web site at http://www.weehoobicycletrailer.com/ YTP INTL: 7th Circuit Remands "Pyramid Scheme" Suit for Review -------------------------------------------------------------- The U.S. Court of Appeals for the Seventh Circuit vacated a lower court judgment in the class action captioned, Faye Morrison, et al. v. YTB International, Inc., et al., No. 10-2529 (7th Cir.). Plaintiffs, consisting of seven persons and one corporation, want to represent a class of everyone in any state who participated in YTP's home-travel-agency program. YTB International, dba as YTP and YourTravelBiz.com, is based in Illinois and accused by Plaintiffs of operating a pyramid scheme in violation of the Illinois Consumer Fraud Act. The district court did not decide whether YTB operates a pyramid scheme. It instead ruled that YTB's transactions with residents of states other than Illinois do not occur predominantly in Illinois and so are outside the Act. Then the district court dismissed the claims of persons who do live in Illinois, concluding that the suit is an intra-state controversy that belongs in state court under 28 U.S.C. Section 1332(d)(4). The Seventh Circuit pointed out that the proposed class in the suit is not centered in Illinois, but rather is nationwide. "YTB does not contend that any state allows pyramid schemes, or even that any state defines a pyramid scheme differently from the way Illinois does. It contends that its business is entirely lawful, because it does not operate a pyramid scheme on any understanding of that phrase. This argues for uniform application of Illinois law -- which is what plaintiffs want, what YTB wants (or said it wants when it required all plaintiffs to assent to the application of Illinois law), and what will enable one court to resolve the controversy under the law of the state in which YTB operates its business," the Seventh Circuit held. The case is remanded for further proceedings consistent with the Seventh Circuit's opinion. A copy of the Seventh Circuit's July 27, 2011 order is available at http://is.gd/sf5klQfrom Leagle.com. ZALE CORP: District Court Junks Securities Fraud Suit ----------------------------------------------------- Judge Jane J. Doyle of the U.S. District Court for the Northern District of Texas dismissed the claims in the amended securities fraud class action complaint commenced against Zale Corporation and certain of the Company's officers and directors. Two class actions, Rains v. Zale Corp., Case No. 3:09-cv-2133 and Lawyer v. Zale Corp., Case No. 3:09-cv-2218, were consolidated in June 2010, on behalf of all purchasers of Zale Corporation securities between Nov. 16, 2006, and Oct. 29, 2009, for violations of the Securities and Exchange Act of 1934. A consolidated class action complaint was filed in August 2010, alleging that Zale had actual knowledge of the falsity of its original financial statements or acted in reckless disregard of the truth or falsity of those statements. The Court dismissed in April 2011 the original consolidated complaint without prejudice. Plaintiffs submitted an amended complaint on June 2, 2011. In its August 1, 2011 ruling, the Court agreed with Defendants' contention that Plaintiffs' suit should be dismissed because Plaintiffs failed to adequately plead scienter with regards to Rebecca Higgins, a former executive at the marketing department of Zale, and thus scienter cannot be imputed onto Zale and the Individual Defendants. Judge Doyle held that the amended complaint does not remedy the deficiencies identified by the Court at the April 7, 2011 hearing, and does not plead a strong inference of scienter. Accordingly, the Court dismissed all of the Plaintiffs' claims with prejudice. The Court says Plaintiffs have had multiple opportunities to state a claim but failed. A copy of the District Court's Aug. 1, 2011 Memorandum Opinion and Order is available at http://is.gd/UgY2JOfrom Leagle.com. Asbestos Litigation ASBESTOS UPDATE: Regal Beloit Still Subject to Exposure Lawsuits ---------------------------------------------------------------- Regal Beloit Corporation is, from time to time, party to litigation that arises in the normal course of its business operations, including asbestos litigation matters. The Company's products are used in a variety of industrial, commercial and residential applications that subject the Company to claims that the use of its products is alleged to have resulted in injury or other damage. Headquartered in Beloit, Wis., Regal Beloit Corporation manufactures electric motors and controls, electric generators and controls, and mechanical motion control products. ASBESTOS UPDATE: Applica Still Subject to Three Exposure Actions ---------------------------------------------------------------- Spectrum Brands Holdings, Inc.'s Applica Consumer Products, Inc. subsidiary is a defendant in three asbestos lawsuits in which the plaintiffs have alleged injury as the result of exposure to asbestos in hair dryers distributed by that subsidiary over 20 years ago. Although Applica never manufactured such products, asbestos was used in certain hair dryers distributed by it prior to 1979, according to the Company's quarterly report filed on Aug. 11, 2011 with the Securities and Exchange Commission. Headquartered in Madison, Wis., Spectrum Brands Holdings, Inc. is a global branded consumer products company and was created in connection with the combination of Spectrum Brands, Inc. and Russell Hobbs, Inc., a global branded small appliance company, to form a new combined company. ASBESTOS UPDATE: Pfizer Unit Still Subject to Exposure Lawsuits --------------------------------------------------------------- Pfizer Inc.'s wholly owned Quigley Company, Inc. continues to be subject to asbestos-related exposure litigation. Quigley was acquired by the Company in 1968 and sold small amounts of products containing asbestos until the early 1970s. In September 2004, the Company and Quigley took steps that were intended to resolve all pending and future claims against the Company and Quigley in which the claimants allege personal injury from exposure to Quigley products containing asbestos, silica or mixed dust. The Company recorded a charge of US$369 million pre-tax (US$229 million after-tax) in the third quarter of 2004 in connection with these matters. In September 2004, Quigley filed a petition in the U.S. Bankruptcy Court for the Southern District of New York seeking reorganization under Chapter 11 of the U.S. Bankruptcy Code. In March 2005, Quigley filed a reorganization plan in the Bankruptcy Court that needed the approval of both the Bankruptcy Court and the U.S. District Court for the Southern District of New York after receipt of the vote of 75% of the claimants. In connection with that filing, the Company entered into settlement agreements with lawyers representing more than 80% of the individuals with claims related to Quigley products against Quigley and the Company. The agreements provide for a total of US$430 million in payments, of which US$215 million became due in December 2005 and is being paid to claimants upon receipt by the Company of certain required documentation from each of the claimants. The reorganization plan provided for the establishment of a Trust for the payment of all remaining pending claims as well as any future claims alleging injury from exposure to Quigley products. In February 2008, the Bankruptcy Court authorized Quigley to solicit an amended reorganization plan for acceptance by claimants. According to the official report filed with the court by the balloting agent in July 2008, the requisite votes were cast in favor of the amended plan of reorganization. The Bankruptcy Court held a confirmation hearing with respect to Quigley's amended plan of reorganization that concluded in December 2009. In September 2010, the Bankruptcy Court declined to confirm the amended reorganization plan. As a result of the foregoing, the Company recorded additional charges for this matter of about US$1.3 billion pre-tax (about US$800 million after-tax) in 2010. Further, to preserve its right to address certain legal issues raised in the court's opinion, in October 2010, the Company filed a notice of appeal and motion for leave to appeal the Bankruptcy Court's decision denying confirmation. In March 2011, the Company entered into a settlement agreement with an ad hoc committee representing about 40,000 claimants in the Quigley bankruptcy proceeding. Quigley filed a revised plan of reorganization and accompanying disclosure statement with the Bankruptcy Court in April 2011. Under the revised plan, the Company expects to contribute an additional amount to the Trust, if and when the Bankruptcy Court confirms the plan, of cash and non-cash assets with a value in excess of US$550 million. If approved by claimants, confirmed by the Bankruptcy Court and upheld upon any appeal, the revised reorganization plan will result in a permanent injunction directing all remaining pending claims as well as any future claims alleging personal injury from exposure to Quigley products to the Trust. In a separately negotiated transaction with an insurance company in August 2004, the Company agreed to a settlement related to certain insurance coverage, which provides for payments to the Company over a 10-year period of amounts totaling US$405 million. Headquartered in New York, Pfizer Inc. is a research-based pharmaceuticals firm. Its best-known prescription products include cholesterol-lowering Lipitor, pain management drugs Celebrex and Lyrica, pneumonia vaccine Prevnar, and erectile dysfunction treatment Viagra, as well as arthritis drug Enbrel, depression treatment Effexor, and high-blood-pressure therapy Norvasc. ASBESTOS UPDATE: Tata Posts GBP374.2MM A&E Provision at June 30 --------------------------------------------------------------- Tata Motors Limited recorded asbestos and environmental (land cleanup) provisions of GBP374.2 million as of June 30, 2011, compared with GBP360.2 million as of March 31, 2011, according to a Company report, on Form 6-K, filed with the Securities and Exchange Commission on Aug. 11, 2011. Headquartered in Mumbai, India, Tata Motors Limited is a manufacturer of buses, trucks, tractor-trailers, passenger cars (Indica, Indigo, Safari, Sumo, and the ultra budget-conscious Nano), light commercial vehicles, and utility vehicles. The Company also makes construction equipment and provides IT services. ASBESTOS UPDATE: Huntington Ingalls Named in Exposure Lawsuits -------------------------------------------------------------- Huntington Ingalls Industries, Inc. and its predecessors-in- interest are defendants in a long-standing series of cases filed in numerous jurisdictions around the country wherein former and current employees and various third party persons allege exposure to asbestos containing materials while on or associated with Company premises or while working on vessels constructed or repaired by Company. The cases allege various injuries including those associated with pleural plaque disease, asbestosis, cancer, mesothelioma, and other alleged asbestos related conditions. In some cases, in addition to the Company, several of its former executive officers are also named defendants. In some instances, partial or full insurance coverage is available to the Company for its liability and that of its former executive officers. Headquartered in Newport News, Va., Huntington Ingalls Industries, Inc., on March 29, 2011, entered into a Separation and Distribution Agreement with its former parent company, Northrop Grumman Corporation, and Northrop Grumman's subsidiaries, under which the Company was legally and structurally separated from Northrop Grumman. ASBESTOS UPDATE: Harbinger Group Still Faces Suits in Miss., La. ---------------------------------------------------------------- Harbinger Group Inc. is involved in worker compensation and environmental matters and pending cases in Mississippi and Louisiana state courts and in a federal multi-district litigation alleging injury from exposure to asbestos. The asbestos was found on offshore drilling rigs and shipping vessels formerly owned or operated by its offshore drilling and bulk-shipping affiliates. Headquartered in New York, Harbinger Group Inc. obtains controlling equity stakes in subsidiaries that operate across a diversified set of industries. The Company has identified the following six sectors in which it intends to pursue investment opportunities: consumer products, insurance and financial products, telecommunications, agriculture, power generation and water and natural resources. ASBESTOS UPDATE: Premix-Marbletite Mfg. Faces 18 Exposure Claims ---------------------------------------------------------------- Imperial Industries, Inc.'s Premix-Marbletite Manufacturing Co. subsidiary is a defendant together with non-affiliated parties in 18 claims -- nine of which include the Company as a defendant -- which allege bodily injury due to exposure to asbestos contained in products manufactured in excess of 30 years ago. The Company has identified at least 10 of its prior insurance carriers including both primary and excess/umbrella liability carriers that have provided liability coverage to the Company, including potential coverage for alleged injuries relating to asbestos exposure. Several of these insurance carriers have been and continue to provide a defense to Premix and the Company under a reservation of rights in all of the asbestos cases. Certain of these underlying insurance carriers have denied coverage to Premix and the Company on the basis that certain exclusions preclude coverage and/or that their policies have been exhausted. In June 2009, one such carrier filed suit in Miami-Dade Circuit Court against Premix and the Company, wherein the carrier sought a declaration from the Court that its insurance policies do not provide coverage for the asbestos claims against Premix and the Company. In December 2010, Premix, the Company and this carrier resolved their dispute, with the carrier paying a settlement of US$500,000 to Premix and the Company. As part of the settlement, there is no longer coverage available under that disputed policy. The settlement was recorded as a receivable and included in other current assets in the accompanying condensed consolidated balance sheet as of Dec. 31, 2010, and as income reflected as litigation settlement during the fourth quarter of 2010. The Company received actual payment of US$500,000 during the first quarter of 2011. During the first quarter of 2011, the Company resolved a dispute with another carrier regarding primary-layer insurance coverage, which resulted in this carrier paying a settlement of US$325,000 to Premix and the Company, which was recorded as income reflected as litigation settlement during the first quarter of 2011. As part of the settlement, there is no longer coverage available under that disputed policy. Headquartered in Pompano Beach, Calif., Imperial Industries, Inc. manufactures and distributes building materials to building materials dealers, contractors and others located primarily in Florida, and to a lesser extent, other states in the Southeastern United States. ASBESTOS UPDATE: Momentive Specialty Still Named in Injury Cases ---------------------------------------------------------------- Momentive Specialty Chemicals Inc. is involved in various other product liability, commercial and employment litigation, personal injury, property damage and other legal proceedings, including actions that allege harm caused by products the Company has allegedly made or used, containing silica, vinyl chloride monomer and asbestos. No further asbestos-related matters were disclosed in the Company's quarterly report filed on Aug. 12, 2011 with the Securities and Exchange Commission. Headquartered in Columbus, Ohio, Momentive Specialty Chemicals Inc. serves global industrial markets through a broad range of thermoset technologies, specialty products and technical support for customers in a diverse range of applications and industries. At June 30, 2011, the Company had two reportable segments: Epoxy, Phenolic and Coating Resins and Forest Products Resins. ASBESTOS UPDATE: Exposure Lawsuits Still Open v. Kaanapali Land --------------------------------------------------------------- Kaanapali Land, LLC, as successor by merger to other entities, and its D/C Distribution subsidiary have been named as defendants in personal injury actions allegedly based on exposure to asbestos. While there have been only a few such cases that name the Company, there are a substantial number of cases that are pending against D/C on the U.S. mainland (primarily in California). Cases against the Company are allegedly based on its prior business operations in Hawaii and cases against D/C are allegedly based on sale of asbestos-containing products by D/C's prior distribution business operations primarily in California. On Feb. 15, 2005, D/C was served with a lawsuit entitled American & Foreign Insurance Company v. D/C Distribution and Amfac Corporation, Case No. 04433669 filed in the Superior Court of the State of California for the County of San Francisco, Central Justice Center. No other purported party was served. In the eight-count complaint for declaratory relief, reimbursement and recoupment of unspecified amounts, costs and for such other relief as the court might grant, plaintiff alleged that it is an insurance company to whom D/C tendered for defense and indemnity various personal injury lawsuits allegedly based on exposure to asbestos containing products. Plaintiff alleged that because none of the parties have been able to produce a copy of the policy or policies in question, a judicial determination of the material terms of the missing policy or policies is needed. Plaintiff sought a declaration: of the material terms, rights, and obligations of the parties under the terms of the policy or policies; that the policies were exhausted; that plaintiff is not obligated to reimburse D/C for its attorneys' fees in that the amounts of attorneys' fees incurred by D/C have been incurred unreasonably; that plaintiff was entitled to recoupment and reimbursement of some or all of the amounts it has paid for defense and/or indemnity; and that D/C breached its obligation of cooperation with plaintiff. D/C filed an answer and an amended cross-claim. In order to fund such action and its other ongoing obligations while such lawsuit continued, D/C entered into a Loan Agreement and Security Agreement with the Company in August 2006, whereby the Company provided certain advances against a promissory note delivered by D/C in return for a security interest in any D/C insurance policy at issue in this lawsuit. In June 2007, the parties settled the lawsuit with payment by plaintiffs in the amount of US$1,618,000. Such settlement amount was paid to the Company in partial satisfaction of the secured indebtedness. Because D/C was substantially without assets and was unable to obtain additional sources of capital to satisfy its liabilities, D/C filed with the U.S. Bankruptcy Court for the Northern District of Illinois, its voluntary petition for liquidation under Chapter 7 of the U.S. Bankruptcy Code in July 2007, Case No. 07-12776. The deadline for filing proofs of claim against D/C with the bankruptcy court passed in October 2008. Prior to the deadline, the Company filed claims that aggregated about US$26.8 million, relating to both secured and unsecured intercompany debts owed by D/C to the Company. In addition, a personal injury law firm based in San Francisco that represents clients with asbestos-related claims, filed proofs of claim on behalf of about 700 claimants. Headquartered in Chicago, Kaanapali Land, LLC operates in two primary business segments: Property and Agriculture. The Company operates through a number of subsidiaries. ASBESTOS UPDATE: Precision Castparts Named in Exposure Lawsuits --------------------------------------------------------------- Like many other industrial companies in recent years, Precision Castparts Corp. is a defendant in lawsuits alleging personal injury as a result of exposure to chemicals and substances in the workplace, including asbestos. To date, the Company has been dismissed from a number of these suits and has settled a number of others. Headquartered in Portland, Ore., Precision Castparts Corp. is a worldwide manufacturer of complex metal components and products, provides high-quality investment castings, forgings and fasteners/fastener systems for critical aerospace and industrial gas turbine applications. ASBESTOS UPDATE: Andrea Electronics Facing Edwards Claim in R.I. ---------------------------------------------------------------- Andrea Electronics Corporation, since December 2010, has been facing an asbestos lawsuit filed by Audrey Edwards, Executrix of the Estate of Leon Leroy Edwards. The suit was filed in the Superior Court of Providence County, R.I., against 3M Company and over 90 other defendants, including the Company, alleging that the Company processed, manufactured, designed, tested, packaged, distributed, marketed or sold asbestos containing products that contributed to the death of Mr. Edwards. The Company received service of process in April 2011. The Company has retained legal counsel and has filed a response to the compliant. Headquartered in Bohemia, N.Y., Andrea Electronics Corporation aims to provide the emerging "voice interface" markets with state- of-the-art communications products that facilitate natural language, human/machine interfaces. ASBESTOS UPDATE: Thermon Group Subject to 4 Pending Injury Suits ---------------------------------------------------------------- Thermon Group Holdings, Inc. says that four asbestos cases are currently pending, of which it is a defendant, according to the Company's quarterly report filed on Aug. 12, 2011 with the Securities and Exchange Commission. The Company was involved in five pending asbestos-related cases. (Class Action Reporter, July 1, 2011) Since 1999, the Company has been named as one of many defendants in 16 personal injury suits alleging exposure to asbestos from its products. None of the cases alleges premises liability. Insurers are defending the Company in three of the four lawsuits, and it expects that an insurer will defend it in the remaining three matters. Of the concluded suits, there were five cost-of-defense settlements and the remainder was dismissed without payment. There are no claims unrelated to asbestos exposure for which coverage has been sought under the policies that are providing coverage. Headquartered in San Marcos, Tex., Thermon Group Holdings, Inc. provides specialized cables, tubes, and control systems used in electric and steam "heat tracing," which involves externally applying heat to industrial-grade pipes, tanks, and instrumentation. ASBESTOS UPDATE: Norfolk Southern Still Faces Occupational Suits ---------------------------------------------------------------- Norfolk Southern Corporation is still involved in occupational claims (including asbestosis and other respiratory diseases, as well as conditions allegedly related to repetitive motion). These claims are often not caused by a specific accident or event but rather allegedly result from a claimed exposure over time. Many such claims are being asserted by former or retired employees, some of whom have not been employed in the rail industry for decades. Headquartered in Norfolk, Va., Norfolk Southern Corporation's Norfolk Southern Railway unit transports freight over a network consisting of about 20,000 route miles in 22 states in the eastern, southeastern, and mid-western U.S. and in Canada (Ontario and Quebec). ASBESTOS UPDATE: IntriCon Corp. Still Named in Exposure Lawsuits ---------------------------------------------------------------- IntriCon Corporation is a defendant along with a number of other parties in lawsuits alleging that plaintiffs have or may have contracted asbestos-related diseases as a result of exposure to asbestos products or equipment containing asbestos sold by one or more named defendants. Due to the non-informative nature of the complaints, the Company does not know whether any of the complaints state valid claims against it. Certain insurance carriers have informed it that the primary policies for the period Aug. 1, 1970-1973, have been exhausted and that the carriers will no longer provide a defense under those policies. The Company has requested that the carriers substantiate this situation. The Company said it believes it has additional policies available for other years which have been ignored by the carriers. Headquartered in Arden Hills, Minn., IntriCon Corporation is an international firm engaged in designing, developing, manufacturing and distributing miniature and micro-miniature body-worn devices. The Company also has facilities in Maine, California, Singapore, Indonesia and Germany. ASBESTOS UPDATE: Global Power Still Facing Personal Injury Cases ---------------------------------------------------------------- Global Power Equipment Group Inc. has been named as a defendant in a limited number of asbestos personal injury lawsuits, according to the Company's quarterly report filed on Aug. 15, 2011 with the Securities and Exchange Commission. Neither the Company nor its predecessors ever mined, manufactured, produced or distributed asbestos fiber, the material that allegedly caused the injury underlying these actions. The bankruptcy court's discharge order issued upon emergence from bankruptcy extinguished the claims made by all plaintiffs who had filed asbestos claims against the Company before that time. The Company also said it believes the bankruptcy court's discharge order should serve as a bar against any later claim filed against it, including any of its subsidiaries, based on alleged injury from asbestos at any time before emergence from bankruptcy. Headquartered in Irving, Tex., Global Power Equipment Group Inc. is a comprehensive provider of power generation equipment and maintenance services for customers in the domestic and international energy, power infrastructure and service industries. ASBESTOS UPDATE: Warner-Lambert Still Involved in AO's Lawsuits --------------------------------------------------------------- Pfizer Inc.'s Warner-Lambert subsidiary is actively engaged in the defense of, and will continue to explore various means to resolve, asbestos-related claims involving American Optical Corporation. Between 1967 and 1982, Warner-Lambert owned AO, which manufactured and sold respiratory protective devices and asbestos safety clothing. In connection with the sale of AO in 1982, Warner- Lambert agreed to indemnify the purchaser for certain liabilities, including certain asbestos-related and other claims. As of Dec. 31, 2010, about 88,000 claims naming AO and numerous other defendants were pending in various federal and state courts seeking damages for alleged personal injury from exposure to asbestos and other allegedly hazardous materials. Warner-Lambert and AO brought suit in state court in New Jersey against the insurance carriers that provided coverage for the asbestos and other allegedly hazardous materials claims related to AO. Most of the carriers subsequently agreed to pay for a portion of the costs of defending and resolving those claims. The litigation continues against the carriers who have disputed coverage or how costs should be allocated to their policies, and the court held that Warner-Lambert and AO are entitled to coverage by those carriers of a portion of the costs associated with those claims. The case is now in the allocation phase, in which the court will determine the amounts currently due from the carriers who have disputed coverage or allocation as well as their respective coverage obligations going forward. Headquartered in New York, Pfizer Inc. is a research-based pharmaceuticals firm. Its best-known prescription products include cholesterol-lowering Lipitor, pain management drugs Celebrex and Lyrica, pneumonia vaccine Prevnar, and erectile dysfunction treatment Viagra, as well as arthritis drug Enbrel, depression treatment Effexor, and high-blood-pressure therapy Norvasc. ASBESTOS UPDATE: Pfizer Inc. Still Subject to Gibsonburg Claims --------------------------------------------------------------- Numerous lawsuits are pending against Pfizer in various federal and state courts seeking damages for alleged personal injury from exposure to products containing asbestos and other allegedly hazardous materials sold by Gibsonburg Lime Products Company. Gibsonburg was acquired by the Company the 1960s and sold small amounts of products containing asbestos until the early 1970s. Headquartered in New York, Pfizer Inc. is a research-based pharmaceuticals firm. Its best-known prescription products include cholesterol-lowering Lipitor, pain management drugs Celebrex and Lyrica, pneumonia vaccine Prevnar, and erectile dysfunction treatment Viagra, as well as arthritis drug Enbrel, depression treatment Effexor, and high-blood-pressure therapy Norvasc. ASBESTOS UPDATE: Everest Re Has $505.1MM June 30 Gross Reserves --------------------------------------------------------------- Everest Re Group, Ltd., at June 30, 2011, had gross asbestos loss reserves of US$505.1 million, or 95.9%, of total asbestos and environmental reserves, of which US$403.1 million was for assumed business and U $102 million was for direct business. The Company's net three year asbestos survival ratio was 5.1 years at June 30, 2011. With respect to asbestos only, at March 31, 2011, the Company had gross asbestos loss reserves of US$512.7 million, or 95.7%, of total A&E reserves, of which US$409.6 million was for assumed business and US$103.1 million was for direct business. (Class Action Reporter, June 17, 2011) Headquartered in Hamilton, Bermuda, Everest Re Group, Ltd.'s principal business, conducted through its operating segments, is the underwriting of reinsurance and insurance in the United States, Bermuda and international markets. ASBESTOS UPDATE: Crown Holdings Receives 1T New Claims in Q2 ------------------------------------------------------------ Crown Holdings, Inc., during the six months ended June 30, 2011, paid US$10 million to settle outstanding asbestos claims and had 1,000 new claims. During the six months ended June 30, 2011, the Company recorded 1,000 settlements or dismissals and 50,000 ending claims. The Company's Crown Cork & Seal Company, Inc. subsidiary is one of many defendants in a substantial number of lawsuits filed throughout the United States by persons alleging bodily injury as a result of exposure to asbestos. These claims arose from the insulation operations of a U.S. company, the majority of whose stock Crown Cork purchased in 1963. About 90 days after the stock purchase, this U.S. company sold its insulation assets and was later merged into Crown Cork. The outstanding claims in each period exclude 3,100 pending claims involving plaintiffs who allege that they are, or were, maritime workers subject to exposure to asbestos, but whose claims the Company believes will not have a material effect on the Company's consolidated results of operations, financial position or cash flow. The outstanding claims also exclude about 19,000 inactive claims. Due to the passage of time, the Company considers it unlikely that the plaintiffs in these cases will pursue further action against the Company. Headquartered in Philadelphia, Crown Holdings, Inc. designs, manufactures and sells packaging products for consumer goods. The Company's primary products include steel and aluminum cans for food, beverage, household, and other consumer products and metal vacuum closures and caps. ASBESTOS UPDATE: Crown Holdings Accrues $239MM for Claims --------------------------------------------------------- Crown Holdings, Inc.'s accrual for pending and future asbestos- related claims and related legal costs was US$239 million as of June 30, 2011, including US$189 million for unasserted claims. The Company's accrual for pending and future asbestos-related claims and related legal costs was US$243 million as of March 31, 2011, including US$192 million for unasserted claims. (Class Action Reporter, May 27, 2011) Headquartered in Philadelphia, Crown Holdings, Inc. designs, manufactures and sells packaging products for consumer goods. The Company's primary products include steel and aluminum cans for food, beverage, household, and other consumer products and metal vacuum closures and caps. ASBESTOS UPDATE: Crown Cork Subject to Cases in Tex., Pa. Courts ---------------------------------------------------------------- Crown Holdings, Inc.'s subsidiary, Crown Cork & Seal Company, Inc., continues to be involved in asbestos-related lawsuits in Texas and Pennsylvania courts. In June 2003, the State of Texas enacted legislation that limits the asbestos-related liabilities in Texas courts of companies such as Crown Cork that allegedly incurred these liabilities because they are successors by corporate merger to companies that had been involved with asbestos. The Texas legislation, which applies to future claims and pending claims, caps asbestos-related liabilities at the total gross value of the predecessor's assets adjusted for inflation. Crown Cork has paid significantly more for asbestos-related claims than the total adjusted value of its predecessor's assets. On Oct. 22, 2010, the Texas Supreme Court, in a 6-2 decision, reversed a lower court decision, Barbara Robinson v. Crown Cork & Seal Company, Inc., No. 14-04-00658-CV, Fourteenth Court of Appeals, Tex., which had upheld the dismissal of an asbestos- related case against Crown Cork. The Texas Supreme Court held that the Texas legislation was unconstitutional under the Texas Constitution when applied to asbestos-related claims pending against Crown Cork when the legislation was enacted in June 2003. In 2010, the Company recorded a pre-tax charge of $15 including estimated legal fees to increase its accrual for asbestos related costs for claims pending in Texas on June 11, 2003. The Company said it believes that the decision of the Texas Supreme Court is limited to retroactive application of the Texas legislation to asbestos-related cases that were pending against Crown Cork in Texas on June 11, 2003 and therefore continues to assign no value to claims filed after June 11, 2003. In December 2001, the Commonwealth of Pennsylvania enacted legislation that limits the asbestos-related liabilities of Pennsylvania corporations that are successors by corporate merger to companies involved with asbestos. The legislation limits the successor's liability for asbestos to the acquired company's asset value adjusted for inflation. Crown Cork has paid significantly more for asbestos-related claims than the acquired company's adjusted asset value. In November 2004, the legislation was amended to address a Pennsylvania Supreme Court decision (Ieropoli v. AC&S Corporation, et. al., No. 117 EM 2002), which held that the statute violated the Pennsylvania Constitution due to retroactive application. The Company cautions that the limitations of the statute, as amended, are subject to litigation and may not be upheld. Adverse rulings in cases challenging the constitutionality of the Pennsylvania statute could have a material impact on the Company. Headquartered in Philadelphia, Crown Holdings, Inc. designs, manufactures and sells packaging products for consumer goods. The Company's primary products include steel and aluminum cans for food, beverage, household, and other consumer products and metal vacuum closures and caps. ASBESTOS UPDATE: 1,164 Actions Open v. Central Hudson at June 30 ---------------------------------------------------------------- CH Energy Group, Inc. says that, as of June 30, 2011, of the 3,327 asbestos cases brought against Central Hudson Gas & Electric Corporation, about 1,164 remain pending. As of March 31, 2011, of the 3,327 asbestos cases brought against Central Hudson, about 1,169 remain pending. (Class Action Reporter, June 3, 2011) Of the cases no longer pending against Central Hudson, 2,008 have been dismissed or discontinued without payment by Central Hudson, and Central Hudson has settled 155 cases. Headquartered in Poughkeepsie, N.Y., CH Energy Group, Inc.'s reportable operating segments are the regulated electric utility business and regulated natural gas utility business of Central Hudson Gas & Electric Corporation and the unregulated fuel distribution business of Griffith Energy Services, Inc. ASBESTOS UPDATE: Hanover Records $65.4MM A&E Reserves at June 30 ---------------------------------------------------------------- The Hanover Insurance Group, Inc.'s asbestos and environmental reserves were US$65.4 million as of June 30, 2011, compared with US$68.4 million as of Dec. 31, 2010, according to the Company's quarterly report filed on Aug. 9, 2011 with the Securities and Exchange Commission. The Company recorded A&E reserves of US$63.9 million as of March 31, 2011. (Class Action Reporter, June 17, 2011) Headquartered in Worcester, Mass., The Hanover Insurance Group, Inc.'s primary business operations include insurance products and services provided through three property and casualty operating segments. These segments are Commercial Lines, Personal Lines, and Other Property and Casualty. ASBESTOS UPDATE: STERIS Corp. Still Involved in Exposure Actions ---------------------------------------------------------------- STERIS Corporation is, and will likely continue to be, involved in a number of asbestos-related product exposure actions. No significant asbestos-related matters were disclosed in the Company's annual report filed on Aug. 9, 2011 with the Securities and Exchange Commission. Headquartered in Mentor, Ohio, STERIS Corporation provides infection prevention and surgical products and services, focused primarily on healthcare, pharmaceutical and research. ASBESTOS UPDATE: Exposure Actions Still Pending v. Manitowoc Co. ---------------------------------------------------------------- The Manitowoc Company, Inc. is involved in numerous lawsuits involving asbestos-related claims in which the Company is one of numerous defendants. No significant asbestos-related matters were discussed in the Company's quarterly report filed on Aug. 9, 2011 with the Securities and Exchange Commission. Headquartered in Manitowoc, Wis., The Manitowoc Company, Inc. is a multi-industry, capital goods manufacturer operating in two principal markets: Cranes and Related Products and Foodservice Equipment. ASBESTOS UPDATE: Ensco, Units Still Has Exposure Suits in Miss. --------------------------------------------------------------- Ensco plc and certain and former subsidiaries, since 2004, have been facing three multi-party asbestos-related lawsuits filed in the Circuit Courts of Jones County (Second Judicial District) and Jasper County (First Judicial District), Miss. The lawsuits sought an unspecified amount of monetary damages on behalf of individuals alleging personal injury or death, primarily under the Jones Act, purportedly resulting from exposure to asbestos on drilling rigs and associated facilities during the period 1965 through 1986. In compliance with the Mississippi Rules of Civil Procedure, the individual claimants in the original multi-party lawsuits whose claims were not dismissed were ordered to file either new or amended single plaintiff complaints naming the specific defendant(s) against whom they intended to pursue claims. As a result, out of more than 600 initial multi-party claims, the Company has been named as a defendant by 65 individual plaintiffs. Of these claims, 62 claims or lawsuits are pending in Mississippi state courts and three are pending in the U.S. District Court as a result of their removal from state court. To date, written discovery and plaintiff depositions have taken place in eight cases involving the Company. While several cases have been selected for trial during 2011 and 2012, none of the cases pending against the Company in Mississippi state court are included within those selected cases. The three cases removed from state court have been assigned to the Multi-District Litigation 875, which is currently before the U.S. District Court for the Eastern District of Pennsylvania. Although actions were taken by the plaintiffs in these three cases to bring the cases back to Mississippi state court, the U.S. District Court denied the plaintiffs' motion by order dated Dec. 10, 2009. The Company was recently notified that the Houston firm representing the plaintiffs in all 65 claims had dissolved effective as of Nov. 30, 2010. Currently, the plaintiffs are represented by local Mississippi counsel, and the Company expects that additional counsel will be entering as counsel of record. In addition to the pending cases in Mississippi, the Company has other asbestos or lung injury claims pending against it in litigation in other jurisdictions. Headquartered in London, Ensco plc's business consists of four operating segments: (1) Deepwater, (2) Asia Pacific, (3) Europe and Africa and (4) North and South America. Each of the four operating segments provides one service, contract drilling. ASBESTOS UPDATE: Enterprise Posts $103.2MM June 30 ARO Liability ---------------------------------------------------------------- Enterprise Products Partners L.P.'s asset retirement obligation liability balance was US$103.2 million as of June 30, 2011, compared with US$97.1 million as of Dec. 31, 2010. The Company's AROs may also result from regulatory requirements associated with the renovation or demolition of certain assets containing hazardous substances such as asbestos. Headquartered in Houston, Enterprise Products Partners L.P. is a leading North American provider of midstream energy services to producers and consumers of natural gas, NGLs, crude oil, refined products and certain petrochemicals. ASBESTOS UPDATE: Injury Claims Still Open v. Scotts Miracle-Gro --------------------------------------------------------------- The Scotts Miracle-Gro Company has been named as a defendant in a number of cases alleging injuries that the lawsuits claim resulted from exposure to asbestos-containing products, apparently based on the Company's historic use of vermiculite in certain of its products. The complaints in these cases are not specific about the plaintiffs' contacts with the Company or its products. The Company in each case is one of numerous defendants and none of the claims seek damages from the Company alone. No significant asbestos-related matters were discussed in the Company's quarterly report filed on Aug. 10, 2011 with the Securities and Exchange Commission. Headquartered in Marysville, Ohio, The Scotts Miracle-Gro Company is engaged in the manufacturing, marketing and sale of branded products for consumer lawn and garden care. The Company's primary customers include home centers, mass merchandisers, warehouse clubs, large hardware chains, independent hardware stores, nurseries, garden centers and food and drug stores. ASBESTOS UPDATE: Belden Inc. Facing 81 Injury Cases at July 22 -------------------------------------------------------------- Belden Inc. is a party to various legal proceedings and administrative actions, which include asbestos-related personal injury cases, 81 of which are pending as of July 22, 2011, in which it is one of many defendants. Electricians have filed a majority of these cases, primarily in Pennsylvania and Illinois, generally seeking compensatory, special, and punitive damages. Typically in these cases, the claimant alleges injury from alleged exposure to a heat-resistant asbestos fiber. The Company's alleged predecessors had a small number of products that contained the fiber, but ceased production of such products more than 20 years ago. Through July 22, 2011, the Company has been dismissed, or reached agreement to be dismissed, in more than 400 similar cases without any going to trial, and with only a small number of these involving any payment to the claimant. Headquartered in St. Louis, Mo., Belden Inc. designs, manufactures, and markets cable, connectivity, and networking products in markets including industrial, enterprise, broadcast, and consumer electronics. ASBESTOS UPDATE: U.S. Auto Parts Unit Still Facing Injury Cases --------------------------------------------------------------- U.S. Auto Parts Network, Inc.'s Automotive Specialty Accessories and Parts (WAG) subsidiary is a named defendant in several lawsuits involving claims for damages caused by installation of brakes during the late 1960s and early 1970s that contained asbestos. WAG marketed certain brakes, but did not manufacture any brakes. WAG maintains liability insurance coverage to protect its and the Company's assets from losses arising from the litigation and coverage is provided on an occurrence rather than a claims made basis. Headquartered in Carson, Calif., U.S. Auto Parts Network, Inc. is an online source for automotive aftermarket parts and repair information. ASBESTOS UPDATE: Woodard Lawsuit v. ExxonMobil Filed on Aug. 25 --------------------------------------------------------------- The widow of Andrew Woodard, Beaumont, Tex.-based Florence Woodard, on Aug. 25, 2011, filed an asbestos lawsuit against Mr. Woodard's former employer -- ExxonMobil -- in Jefferson County District Court, Tex., The Southeast Texas Record reports. Also named in the lawsuit is Mobil Oil. Court records indicate that Mr. Woodard was exposed to asbestos dust and fibers while in the employment of ExxonMobil. The suit does not give dates of employment or state Mr. Woodard's occupation with the company. The suit states that, as a result of his alleged asbestos exposure, Mr. Woodard developed mesothelioma and died on Aug. 10, 2009. Mrs. Woodard seeks to recover exemplary damages from ExxonMobil. Beaumont attorney Keith Hyde, Esq., of the Provost Umphrey Law Firm represents her. Judge Donald Floyd, 172nd District Court, has been assigned to Case No. E190-729. ASBESTOS UPDATE: Long Case v. 10 Firms Filed on Aug. 2 in W.Va. --------------------------------------------------------------- Charles H. Long and Ruth Long, a couple from Liverpool, Ohio, on Aug. 2, 2011, filed an asbestos lawsuit against 10 defendant corporations in Kanawha Circuit Court, W.Va., The West Virginia Record reports. The 10 defendants named are: AK Steel Corporation; AmChem Products, Inc.; Bechtel Corporation; Brand Insulations, Inc.; Dravo Corporation; FMC Corporation; Goulds Pumps, Inc.; ITT Corporation; J. H. France Refractories Company; and Yarway Corporation. From 1958 until 1979, Mr. Long worked as a boilermaker and ironworker at various power plants, steel mills and other industrial sites throughout western Pennsylvania, Ohio and West Virginia. Mr. Long claims he was exposed to asbestos and asbestos-containing products that were manufactured and/or supplied by the defendants. According to the suit, the defendants are responsible for Mr. Long's diagnosis of lung cancer, asbestosis and pleural plaques. The Longs seek compensatory and punitive damages with pre- and post-judgment interest. They are being represented by Craig E. Coleman, Esq. Kanawha Circuit Court Case No. 11-C-1264 has been assigned to a visiting judge. ASBESTOS UPDATE: Dittmeier, Donohoe Cases Filed in St. Clair Co. ---------------------------------------------------------------- The asbestos cases of Anne Dittmeier and William and Tarilan Donohoe have recently been filed to the growing asbestos docket of St. Clair County, Ill., The Madison/St. Clair Record reports. Ms. Dittmeier of Kentucky and William and the Donohoes will be represented by Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville. Erik Karst, Esq., and Matthew J. Wright, Esq., of Karst and von Oiste will serve of counsel in Ms. Dittmeier's case. In her complaint filed on July 29, 2011, Ms. Dittmeier alleges 29 defendant companies caused her deceased relative, Andrew Dittmeier, to develop lung cancer after his exposure to asbestos- containing products throughout his career. In their complaint filed on Aug. 5, 2011, the Donohoes allege 26 defendant companies caused Mr. Donohoe to develop lung cancer following his exposure to asbestos-containing products. According to the suit, Mr. Dittmeier worked as a bricklayer from 1956 until 1994 and Mr. Donohoe worked as a laborer for an independent contractor in Florida from 1972 until 1974 and as a laborer at Atlantic Boat Building from 1975 until 1977. In her nine-count complaint, Ms. Dittmeier seeks a judgment of more than US$50,000, plus economic damages of more than US$100,000, punitive and exemplary damages of more than US$250,000 and compensatory damages of more than US$50,000. In their six-count complaint, the Donohoes seek a judgment of more than US$100,000, compensatory damages of more than US$50,000 and punitive and exemplary damages of more than US$100,000 ASBESTOS UPDATE: Inquest Issues Ruling on Longridge Man's Death --------------------------------------------------------------- An inquest heard that the death of 76-year-old Neil Malcolm, a former builder from Longridge, Lancashire, England, was due to workplace exposure to asbestos, The Citizen reports. From the beginning of his working life in 1967, Mr. Malcolm was exposed to asbestos as he worked as a self-employed builder and shopfitter. The inquest at Clitheroe heard that Mr. Malcolm came into contact with asbestos sheets, panels and tiles as he carried out shop fittings for two national companies. He was tasked to make improvements to shops owned by the WH Smith's stationers and Dorothy Perkins clothing stores. Mr. Malcolm first started working for the companies when he was in his early 30s and living in Levenshulme, Manchester. In a letter written before his death on July 12, 2011, Mr. Malcolm said that he would be called in to make improvements to store rooms on a regular basis and he would have to remove asbestos panels. He would then load the panels into his van to be disposed of later and sweep up the asbestos dust. Mr. Malcolm was diagnosed with sarcomatoid mesothelioma in April 2011 after he woke up in the middle of the night suffering from a sharp pain in his chest. He visited his GP was told that he would need an urgent check with a specialist. Doctors found that Mr. Malcolm had a mass on his right lung but he was advised against having chemotherapy treatment as he was not "strong enough." He was released from hospital but his health deteriorated during a holiday with his wife, Gillian, and two friends, and he was forced to come back early. East Lancashire coroner Michael Singleton recorded a verdict of occupational disease explaining that the cancer that killed Mr. Malcolm was caused by exposure to asbestos. ASBESTOS UPDATE: EPA Seeks Public Comment on Toxicity at Libby -------------------------------------------------------------- The U.S. Environmental Protection Agency is providing the public with an opportunity to comment on draft toxicity values for a unique form of asbestos called Libby Amphibole asbestos, according to an EPA press release dated Aug. 25, 2011. The toxicity assessment provides a toxicological review of a specific type of asbestos found in northwest Montana and proposes draft toxicity values for both cancer and non-cancer health effects. When final, the toxicity values will help EPA and the residents of Libby and Troy, Mont., determine the best path forward for asbestos cleanup and the protection of public health at the Libby Asbestos Superfund site. The Aug. 25, 2011 announcement is the latest step in EPA's continuing efforts to protect human health by reducing exposure to Libby Amphibole asbestos. EPA is releasing the draft toxicity assessment for public comment and peer review by EPA's Science Advisory Board (SAB). The Aug. 25, 2011 Federal Register notice calls for a 60-day public comment period from Aug. 25 to Oct. 24, 2011. A public listening session also is planned on Oct. 6, 2011. The Federal Register notice announces the beginning of an external review process that provides the public with an opportunity to comment on the draft toxicity assessment and the science used to develop the Libby Amphibole asbestos toxicity values. To learn about the draft toxicity assessment and how to submit comments and participate in the listening session, visit http://www.epa.gov/ncea Copies of the assessment and Federal Register notice will be available in the EPA Information Office in Libby as well as the Lincoln County and Troy, Mont., Libraries. Information on how to comment and participate in the Oct. 6 listening session also will be available at the Information Office and libraries. Jim Martin, EPA's regional administrator in Denver, Colo., said, "This is an important step towards developing the best science to finish the job of protecting public health in Libby and Troy. Our intent is to move forward with the input of independent experts and local residents. Once finalized, these toxicity values will help guide remaining cleanup actions and identify exposure prevention practices to protect human health." EPA announced initial draft toxicity values at a public meeting in Libby on May 3, 2011. EPA released the draft information to the residents earlier than usual in the scientific evaluation process to ensure the community was fully informed. Since that time, the values have undergone a review by scientists at EPA and other federal agencies. These reviews did not result in any significant changes to the draft toxicity values shared on May 3, 2011. Based on requests from the community, the final toxicity values for Libby Amphibole asbestos will be used to develop EPA's final risk assessment at the Libby Asbestos Superfund site. EPA will use these toxicity values to evaluate risks to adults, teens and children who may be exposed to Libby Amphibole asbestos during activities such as housework, gardening, mowing, bicycling or working in an office or outside. Since 1999, EPA has worked to reduce risk of exposure to Libby Amphibole asbestos by focusing on removing the largest sources of exposure. EPA Administrator Lisa P. Jackson in 2009 declared a public health emergency in Libby, a first-of-its-kind action that recognized serious impacts to public health. To date, the agency has spent more than US$370 million and has safely removed more than 873,350 cubic yards of asbestos- contaminated soil from source areas at 1,509 commercial and residential properties. Preliminary conclusions in the draft assessment are that the cancer risk value for Libby Amphibole asbestos is similar to the current Integrated Risk Information System (IRIS) cancer risk value for other forms of asbestos. The preliminary assessment of non-cancer effects indicates the potential for detrimental health effects at low exposure levels. This is the first EPA non-cancer toxicity value for asbestos. EPA is conducting the review of the draft health assessment under a process prescribed by IRIS. The results of this assessment will affect states and private industry groups with Superfund cleanup responsibilities at sites where Libby Amphibole asbestos is present. The proposed toxicity values in this draft assessment will also be useful in evaluating risk from potential exposures in other environments where Amphibole asbestos may be present. EPA expects to issue its final health assessment in September 2012. ASBESTOS UPDATE: Inquest Decides on Carriageworks Worker's Death ---------------------------------------------------------------- An inquest heard that the death of Connie Spence, an 80-year-old woman from Acomb, North Yorkshire, England who used to work in Carriageworks, was related to asbestos, The Press reports. Mrs. Spence never worked directly with asbestos but York Carriageworks employees -- who did -- regularly used to visit the shop where she worked, covered in dirt and dust. Mrs. Spence's husband, Norman, who was married to Mrs. Spence for almost 60 years, said she lived and worked around the Carriageworks for most of her life. It was possible Mrs. Spence came into contact with asbestos in the dirt and dust from workmen's overalls. She could also have been exposed during renovation work at a retail store where she also worked. ASBESTOS UPDATE: Mass. Developer Fined $100T for Safety Breaches ---------------------------------------------------------------- Massachusetts Attorney General Martha Coakley, on Aug. 24, 2011, said developer James L. Xarras will pay a civil penalty of US$100,000 for violating asbestos laws related to the 2009-2010 renovation and conversion of the former Union Products site in Leominster, Mass., to retail and commercial space, according to an Aug. 24, 2011 press release issued by AG Coakley's office. AG Coakley said, "We will vigorously pursue those who endanger the health of workers and the public by failing to control the release of hazardous asbestos fibers. This penalty should serve as a reminder to others that we take these violations very seriously." The Attorney General's lawsuit alleges that Mr. Xarras failed to take the required precautions to prevent the release of asbestos fibers to the air when workers removed asbestos insulation from heating pipes, dislodged and removed pipes covered with asbestos, and removed other asbestos-containing material during renovation work in one building on the site. Upon discovering the violations, the Massachusetts Department of Environmental Protection promptly shut-down the renovation project. After a state-licensed asbestos contractor implemented emergency containment measures ordered by MassDEP, Mr. Xarras continued to perform additional renovation activity. During this process, Mr. Xarras cleaned up and improperly removed more asbestos from a building before the licensed contractor started the removal and disposal of all remaining asbestos from the site. After MassDEP discovered these additional violations, the licensed asbestos contractor completely decontaminated the site and properly disposed asbestos waste from two buildings following the required environmental, health and safety regulations. MassDEP Deputy Commissioner Gary Moran said, "Complying with the asbestos regulation is a critical responsibility of building owners and contractors conducting renovation projects. Today's settlement imposes a tough penalty, and this case sends a clear message that we intend to make sure that building owners and contractors act responsibly to prevent airborne releases of asbestos fibers during renovation work. Building renovation work must not begin until an asbestos inspection is completed so that workers know where the asbestos materials are located." Assistant Attorney General Matthew Ireland of AG Coakley's Environmental Protection Division prosecuted the case with assistance from MassDEP attorney Robert Brown and Regional Asbestos Chief Gregory Levins and Investigator Donald Heeley, both of MassDEP's Central Regional Office. ASBESTOS UPDATE: Decuir Case v. Texaco Filed on Aug. 24 in Texas ---------------------------------------------------------------- Shirley Hulin Decuir and her children, on behalf of the late Ronald Decuir, on Aug. 24, 2011, filed an asbestos lawsuit against Mr. Decuir's former employer -- Texaco -- in Jefferson County District Court, Tex., The Southeast Texas Record reports. According to the suit, during Mr. Decuir's employment at Texaco's Port Arthur refinery, he was exposed to asbestos dust and fibers. As a result, he developed mesothelioma and died on June 27, 2011. Claiming that Texaco acted with malice, the Decuirs seek to recover exemplary damages from the Company. Beaumont attorney D'Juana Parks, Esq., of the Provost Umphrey Law Firm represents them. Judge Donald Floyd, 172nd District Court, has been assigned to Case No. E190-720. ASBESTOS UPDATE: Ex-Hardie Employee Awarded AU$1.15MM in Payout --------------------------------------------------------------- A jury at a Supreme Court in Victoria, Australia, awarded AU$1.15 million in compensation to Eric King, a 62-year-old man who used to work at James Hardie, the International Business Times reports. Mr. King was employed as a machinist and fitter and, in 1972, visited a James Hardie factory at Welshpool, near Perth in Western Australia on three occasions for several hours. He was employed to conduct maintenance on a machine in the asbestos cement sheeting factory. He was not warned about asbestos or given a mask. On Aug. 30, 2011, a jury of four women and two men found that James Hardie failed to take reasonable care to avoid Mr. King's exposure to asbestos and that this caused his mesothelioma. Maurice Blackburn asbestos principal Andrew Dimsey said the jury found in Mr. King's favor because James Hardie had failed to warn and adequately protect Mr. King from the asbestos dust. Mr. Dimsey said, "This is an important verdict because it is the first mesothelioma case to go to verdict in Victoria in more than 10 years. James Hardie applied to the Supreme Court on two occasions to have the jury dismissed and have the case decided by the judge alone. "After the jury returned its verdict, James Hardie applied again, to have the judge dismiss the jury's verdict and replace it with a finding in favor of James Hardie. Their application was refused." ASBESTOS UPDATE: Pa. Judge Dismisses Armstrong's Asbestos Claim --------------------------------------------------------------- A Pennsylvania judge had denied an asbestos-related lawsuit filed against the Armstrong School Board directors, The Kittanning Paper reports. Armstrong School District Solicitor Gary Matta announced the moot lawsuit regarding the Elderton K-12 school complex asbestos abatement at the Aug. 22, 2011 meeting of the school board directors. The lawsuit is separate from an overall lawsuit against school directors abating the schools. Mr. Matta announced to school directors at their August 2011 monthly board meeting that one litigation suit filed against asbestos abatement at Elderton K-12 was denied. He said, "We received an Order of the Court Friday dismissing certain motions because of being moot. That litigation was all regarding the asbestos." The Emergency Motion for Special Relief was filed on June 28, 2011 on behalf of School Board Directors Chris Choncek, James Rearic and Joseph Close and nominated directors Paul Lobby, Larry Robb, Amy Lhote and Stanley Berdell after directors voted to rescind the abatement contract to ABMECH, Inc. and award it to Environmental Assurance Co., Inc. instead. Environmental Assurance bid US$203,000 for the contract and was the second-lowest bidder behind ABMECH initially. The Company also abated asbestos from Kittanning Sr. High this past summer. The Plaintiff's attorney, Chuck Pascal, Esq., explained why the charges were thrown out by Clarion County Principal Judge James G. Arner. Mr. Pascal said, "He never ruled on it. In the meantime, it became moot because the work was done. So by agreement, we allowed for that to be denied with our consent. That had to do with the new contract at Elderton." Erie County Senior Judge John A. Bozza was appointed to hear arguments for the case, but after work had been completed on-site. An appeal is pending on the original lawsuit over the asbestos abatement projects. That appeal has not yet been scheduled for court. ASBESTOS UPDATE: Mich. Township Head Pleads Not Guilty to Charge ---------------------------------------------------------------- Amer Hakim, Esq., the lawyer representing Supervisor William Morgan of Royal Oak Township, Mich., said that, despite a looming federal bribery indictment, Mr. Morgan should not resign from his job, the Detroit Free Press reports. Mr. Morgan, who was arrested at his office on Aug. 31, 2011, pleaded not guilty in federal court to charges that he took bribes in connection with a contract to demolish and remove asbestos from an abandoned theater on Eight Mile Road. He said nothing during his court appearance and was released on bond. Mr. Hakim noted that Mr. Morgan knew he was under investigation for at least a year, but that he did not foresee getting criminally charged. According to the indictment, Mr. Morgan received US$10,000 from Sureguard/PBM, a contractor that submitted a bid for the demolition and asbestos removal from the old theater. Despite Mr. Morgan's efforts to steer the contract to Sureguard/PBM, township officials awarded the contract to a lower bidder. The indictment added that Mr. Morgan later solicited and got payoffs of US$500 and US$1,000 from the successful bidder. According to pretrial services, Mr. Morgan has lived in Ferndale for 20 years with his wife and has two sons. His criminal record consists of two arrests: one in 2008 for operating a vehicle while impaired; another in 1962 for being a minor in possession of alcohol. It was not noted if he was actually convicted. Federal authorities, meanwhile, said the case represents the government's ongoing effort to weed out public corruption in metro Detroit. In this case, they noted, Mr. Morgan not only betrayed the public's trust, but created a potential health risk as well. ASBESTOS UPDATE: $282,685 Verdict Handed to James Lokey's Family ---------------------------------------------------------------- Nate Finch, Esq., and James Ledlie, Esq., of Motley Rice, along with Gary Kendall, Esq., and Kyle McNew, Esq., of Michie Hamlett worked on behalf of the family of James "Doug" Lokey, to obtain a US$282,685 verdict in a liability case involving asbestos exposure, the Mesothelioma Legal Blog reports. According to the legal team, this recent mesothelioma verdict was achieved along with the legal assistance of Will Harty, Esq., of Patten, Wornom, Hatten & Diamonstein, L.C. who assisted with jurisdiction. A liability verdict was issued on Aug. 29, 2011 in Albemarle County, Va., against manufacturers Ford and Honeywell after jurors found that both companies exposed a former state trooper to asbestos which led Mr. Lokey, a former state trooper, to contract the deadly lung disease mesothelioma in 2007 at the age of 84. Mr. Lokey was exposed to asbestos from brakes in the 1966-74 time frame as a result of going into state inspection stations and watching mechanics do blowout on Ford, GM and Chrysler vehicles. He also worked at the Norfolk Naval shipyard during World War II. In the verdict, the six-member jury found that both Ford and Honeywell were negligent for failing to warn Mr. Lokey about the dangers of exposure to asbestos while at work. According to the legal team who represented Mr. Lokey, "There were no settlement offers by Ford or Honeywell at any time." Both companies held strong to deny their liability. ASBESTOS UPDATE: Martin Case v. 57 Firms Filed in Kanawha Court --------------------------------------------------------------- James Franklin Martin, on behalf of James Thomas Martin, on July 29, 2011, filed an asbestos lawsuit against 57 defendant corporations in Kanawha Circuit Court, W.Va., The West Virginia Record reports. According to the complaint, James Thomas Martin was diagnosed with lung cancer, of which he died from on Aug. 2, 2010. James Franklin Martin claims James Thomas Martin was exposed to asbestos and asbestos-containing material during his employment as an electrician from 1951 until 2006. James Franklin Martin seeks a jury trial to resolve all issues involved. He is being represented by Victoria Antion, Esq., and Bronwyn I. Rinehart, Esq. Kanawha Circuit Court Case No. 11-C-1248 has been assigned to a visiting judge. ASBESTOS UPDATE: Dye Claim v. 73 Firms Filed on July 29 in W.Va. ---------------------------------------------------------------- Paul Feazell, on behalf of Norvell Vaughn Dye, on July 29, 2011, filed an asbestos lawsuit against 73 defendant corporations in Kanawha Circuit Court, W.Va., The West Virginia Record reports. According to the complaint, on Aug. 6, 2009, Mr. Dye was diagnosed with lung cancer, of which he died on Aug. 13, 2009. Mr. Feazell seeks a jury trial to resolve all issues involved. He is being represented by Victoria Antion, Esq., and Bronwyn I. Rinehart, Esq. Kanawha Circuit Court Case No. 11-C-1250 has been assigned to a visiting judge. ASBESTOS UPDATE: AU$$11.6MM Estimated for Wynnum School Cleanup --------------------------------------------------------------- Budget estimates show the asbestos remediation work at the Wynnum State High School in Queensland, Australia, is set to cost AU$11.6 million, which is about one third of the AU$31 million site redevelopment bill, the Courier Mail reports. Almost the entire oval of the future Wynnum State School site is being removed to rid the site of asbestos contamination but the material's origin is a mystery. The Department of Education and Training has released figures showing 35,000 cubic meters of material will be removed from the site by the end of 2011. Acting Deputy Director of general infrastructure services Graham Atkins said the origin of the material containing the asbestos was unknown. He added, "But it is thought it was dumped on the land before the Wynnum North State High School was developed (there) in the early 1960s." Aerial photos taken in the late 1950s show the oval area once owned by former Wynnum Mayor John Greene as part of his Cooroona property was a natural swamp and bushland. Former Wynnum North State High School deputy principal Helen Astill taught at the school from its 1964 opening until her retirement in 1990. She said the oval was not built when the school opened and students would venture into the bushland. Lindsay Horne, who was the school's sports master from 1970, remembered the oval had been completed when he started teaching there in 1967. ASBESTOS UPDATE: Court Issues Split Ruling in York Int'l. Action ---------------------------------------------------------------- The U.S. District Court, Middle District of Pennsylvania, issued split rulings in a case involving asbestos styled York International Corporation, Plaintiff v. Liberty Mutual Insurance Company, Defendant. District Judge Sylvia H. Rambo entered judgment in Civil Action No. 1:10-CV-0692 on May 26, 2011. This was an insurance indemnification action and breach of contract case brought by York International Corporation against Liberty Mutual Insurance Company whereby York International sought indemnification and defense from Liberty Mutual for over 1,000 thousand underlying asbestos complaints. Prior to 1956, York Corporation used asbestos-containing products in the air conditioning units it sold. This practice continued after York Corporation dissolved, but the parties were not sure for how long asbestos-containing products were used. Liberty Mutual, from Oct. 1, 1952 through Oct. 1, 1956 provided general liability insurance to York Corporation. On or around June 30, 1956, all assets and liabilities of York Corporation were transferred to Borg-Warner Corporation. The assets obtained by Borg-Warner were placed in the York Division of Borg-Warner, which operated until the early 1980s. Meanwhile, in 1972, York International Corporation was formed in Delaware and became a wholly-owned subsidiary of Borg-Warner. In 1981, Borg-Warner also acquired and operated the following companies: Luxaire, Inc.; YorkLuxaire, Inc.; and Westinghouse Electric Corporation. Luxaire, Inc. manufactured products under the brands Luxaire, Fraser-Johnston, Westinghouse and Moncreif. In December 1985, Borg-Warner changed its name to York International Corporation, not the same company as Plaintiff. Through another convoluted series of corporate transactions and acquisitions, in 1991, York International, Plaintiff here, was formed. Notably, the parties stipulated that Plaintiff York International acquired all assets of the predecessor companies. Between Oct. 1, 1952, and Oct. 1, 1956, Liberty Mutual issued four general comprehensive liability policies to the original York Corporation. On March 30, 2010, York International filed this declaratory judgment and breach of contract cause of action against Liberty Mutual in federal court based on diversity of citizenship. On March 8, 2011, both parties filed cross-motions for summary judgment and briefs in support, along with statements of material facts not in dispute. On March 29, 2011, the parties filed their respective briefs in opposition to the motions for summary judgment and answers to the statements of material facts. On April 12, 2011, reply briefs were filed and Plaintiff also filed a response to Defendant's answer to Plaintiff's statement of material facts. Defendant's motion for summary judgment was denied. Plaintiff's cross motion for partial summary judgment was granted as to Count I as follows: in that Liberty Mutual will be required to defend or indemnify York International for asbestos-related claims attributable to York Corporation during the time period from Oct. 1, 1952, through Oct. 1, 1956, during which York Corporation was covered under the Liberty Mutual policies in question. Plaintiff's cross motion for partial summary judgment was denied as to Count I with respect to any claims that fall outside the policy periods. ASBESTOS UPDATE: Defendants' Summary Judgment Granted in Spavone ---------------------------------------------------------------- The U.S. District Court, Southern District of New York, granted defendants' motion for summary judgment in a case involving asbestos filed by Steven Spavone. The case is styled Steven Spavone, Plaintiff v. N.Y.S. Department of Correctional Services, Jim Hillregal, John Bendlin, and Steve Madison, Defendants. District Judge Denise Cote entered judgment in Case No. 10 Civ. 833(DLC) on May 26, 2011. Steven Spavone, proceeding pro se, brought this action against employees of the New York State Department of Correctional Services (DOCS), asserting that they placed him at risk of exposure to asbestos. While an inmate at DOCS' Woodbourne Correctional Facility, Mr. Spavone assisted in preparing the Old Jewish Chapel at the facility for renovation. Over the course of about four hours that spanned several days in June 2009, Mr. Spavone and other members of the maintenance crew removed all of the fixtures and the ceiling from the room. General Mechanic Steven Madison personally supervised the work, and told the crew to be careful not to hit the water pipe when removing the ceiling. The water pipe ran above the ceiling along one section of the room adjacent to a window. It was wrapped with insulation. The crew completed its work by June 16, 2009, and placed all of the debris in garbage cans and carts, which were then removed from the room. During that period, none of the insulation from the pipe fell. The next phases of the work, in which Mr. Spavone was not involved, were the painting of the room and the installation of a new ceiling. On July 13, 2009, civilian carpenter Cliff Hamlin began the work necessary to install a "wall angle" to support the ceiling. While standing on the scaffold, Mr. Hamlin noticed a leak in the water pipe. When Mr. Hamlin returned on July 14, 2009, he noticed that part of the insulation from the pipe had fallen onto the scaffold. He promptly notified John Bendlin, a Maintenance Supervisor, who told Mr. Hamlin to stay away from the leaking pipe. A Fire and Safety Officer then shut down the work area because of the potential for release of asbestos. On July 16, 2009, a member of the CORCRAFT Asbestos Program assessed the situation and cleaned up the chapel. Its report described the condition of the chapel on July 16, 2009 and identified "asbestos/particulate" as an atmospheric hazard. On Feb. 3, 2010, Mr. Spavone filed a complaint naming DOCS, Mr. Bendlin, and Mr. Madison as defendants, in addition to DOCS Plant Supervisor Jim Hillregal. Mr. Spavone filed a motion for summary judgment on Jan. 19, 2011. The defendants filed a cross-motion for summary judgment on Feb. 14, 2011. The motions were fully submitted on April 26, 2011. Mr. Spavone's Jan. 19, 2011 motion for summary judgment was denied and the defendants' Feb. 14, 2011 motion for summary judgment was granted. ASBESTOS UPDATE: Pa. Court to Grant Dismissal Bids in Tatum Case ---------------------------------------------------------------- The U.S. District Court, Eastern District of Pennsylvania, will grant dismissal motions in a case involving asbestos styled John Tatum v. Philadelphia Housing Authority, et al. District Judge Baylson entered judgment in Civil Action No. 10-7577 on May 26, 2011. This lawsuit arose from the alleged retaliation against a former assistant manager at the Philadelphia Housing Authority (PHA), who was demoted and later fired after he complained about PHA officials' theft and fraud. Plaintiff John Tatum filed suit against PHA and PHA employees Carl Greene, Daniel Quimby, and Diane Rosenthal. Defendants had filed Motions to Dismiss the Complaint for failure to state a claim. According to the Complaint, Mr. Tatum worked for PHA from 1982 until Jan. 5, 2009. In his highest-ranking position, Mr. Tatum was Assistant General Manager, Scattered Sites, supervising more than 400 PHA employees working in over 22,000 units. Mr. Greene was the Executive Director of PHA from 1998 until 2010. Mr. Quimby is PHA's General Manager of Maintenance. Mr. Rosenthal is PHA's Assistant Executive Director of Finance. Mr. Greene directed Mr. Tatum to instruct his workers to complete maintenance repairs on PHA units, known as "service orders," that required lead and asbestos remediation. Mr. Tatum refused because his workers were not qualified to perform work involving hazardous materials. Mr. Greene, in 2007, instructed staff not to enter service orders for pest control, which Mr. Tatum complained about at a Service Order Committee meeting with Mr. Quimby and Mr. Rosenthal. Mr. Tatum filed his Complaint on Dec. 30, 2010. PHA and Mr. Quimby filed a Motion to Dismiss and in the Alternative a Motion to Strike on March 4, 2011. Mr. Rosenthal filed a Motion to Dismiss on March 4, 2011. Mr. Greene filed a Motion to Dismiss on March 30, 2011. Mr. Tatum filed an Omnibus Response to the PHA/Quimby and Rosenthal Motions and separately responded to Mr. Greene's Motion. PHA and Mr. Quimby filed a reply brief, in which Mr. Rosenthal joined. Mr. Quimby also filed a motion for joinder in Mr. Greene's argument regarding qualified immunity. The Court held oral argument on the motions on May 24, 2011. ASBESTOS UPDATE: Exeter Office Workers Evacuated After Cleanup -------------------------------------------------------------- The post office workers in Exeter, Maine, on Aug. 31, 2011, were evacuated after multiple employees fell ill with symptoms related to an asbestos removal project, Seacoastonline.com reports. The post office is closed for the foreseeable future as fire officials and investigators from the U.S. Postal Service figure out how the employees were exposed and sickened. Tom Rizzo, northern New England's spokesperson for USPS, said a total of 28 employees were evacuated from the facility. He said 17 of them were transported to the local hospital for observation. He added that said most of the employees had been recently released from care. Assistant Fire Chief Ken Berkenbush said employees of the Front Street post office were taken to Exeter Hospital with symptoms including nausea, light-headedness, dizziness and chest pains. Mr. Berkenbush said the illnesses were caused by off-gassing from a solvent that crews were using to remove asbestos tiles from inside the building. Mr. Berkenbush said he has ordered the post office closed until the building is made safe again. Customers attempting to enter the facility were met by a police officer advising them of the temporary closure. ASBESTOS UPDATE: Murfreesboro Site Cleanup to Cost Almost $30T -------------------------------------------------------------- Removal of asbestos tile where a women's locker room will be located in Murfreesboro, Tenn.'s new fire department headquarters is a major portion of a US$30,000 price increase on the project, officials said, dnj.com reports. The job brings the locker room cost up to a new total of US$70,000, Murfreesboro Fire & Rescue Chief Cumbey Gaines informed City Council members. Mr. Gaines informed the council that administrators needed to increase the square footage by 225 square feet, which includes another lavatory area and two vanities to bring the locker room to modern standards. Mr. Gaines said his department will have enough in its reserve funds from other areas of the budget to cover the remaining US$30,000. Murfreesboro City Administrator Rob Lyons added any time with a remodel some problems are to be expected, such as asbestos removal. ASBESTOS UPDATE: TMS International Named in Liability Lawsuits -------------------------------------------------------------- TMS International Corp. has been named as a defendant in certain asbestos-related claims relating to lines of business that were discontinued over 20 years ago, according to the Company's quarterly report filed on Aug. 10, 2011, with the Securities and Exchange Commission. Two non-operating subsidiaries of a predecessor company, along with a landfill and waste management business, were spun-off to the Company's former stockholders in October 2002. The two former subsidiaries were subject to asbestos related personal injury claims. Headquartered in Glassport, Pa., TMS International Corp. provides outsourced industrial services to steel mills in North America with a substantial international presence. The Company operates at 78 customer sites in 10 countries and has a raw materials procurement network that extends to five continents. ASBESTOS UPDATE: CERC Continues to be Named in Exposure Lawsuits ---------------------------------------------------------------- CenterPoint Energy Resources Corp. or its predecessor companies have been named, along with numerous others, as a defendant in lawsuits filed by certain individuals who claim injury due to exposure to asbestos during work at formerly owned facilities. Some facilities formerly owned by the Company's predecessors have contained asbestos insulation and other asbestos-containing materials. The Company anticipates that additional claims like those received may be asserted in the future. Headquartered in Houston, CenterPoint Energy Resources Corp. owns and operates natural gas distribution systems in six states. Its subsidiaries own interstate natural gas pipelines and gas gathering systems and provide various ancillary services. ASBESTOS UPDATE: Katy Named in 11 Cases With 325 Claimants ---------------------------------------------------------- Katy Industries, Inc. has been named as a defendant in 11 asbestos lawsuits filed in state court in Alabama by a total of about 325 individual plaintiffs, according to the Company's quarterly report filed with the Securities and Exchange Commission on Aug. 15, 2011. There are over 100 defendants named in each case. In all 11 cases, the Plaintiffs claim that they were exposed to asbestos in the course of their employment at a former U.S. Steel plant in Alabama and, as a result, contracted mesothelioma, asbestosis, lung cancer or other illness. They claim that while in the plant they were exposed to asbestos in products which were manufactured by each defendant. In nine of the cases, Plaintiffs also assert wrongful death claims. Headquartered in Bridgeton, Mo., Katy Industries, Inc. is a manufacturer, importer and distributor of commercial cleaning and storage products. Its commercial cleaning products are sold primarily to janitorial/sanitary and foodservice distributors that supply end users like restaurants, hotels, healthcare facilities and schools. ASBESTOS UPDATE: Sterling Seeks Indemnification From Katy --------------------------------------------------------- Katy Industries, Inc., says that Sterling Fluid Systems (USA) has tendered about 2,885 asbestos cases pending in Michigan, New Jersey, New York, Illinois, Nevada, Mississippi, Wyoming, Louisiana, Georgia, Massachusetts, Missouri, Kentucky, California, South Carolina, Rhode Island and Canada to the Company for defense and indemnification. With respect to one case, Sterling has demanded that the Company indemnify it for a US$200,000 settlement. Sterling bases its tender of the complaints on the provisions contained in a 1993 Purchase Agreement between the parties whereby Sterling purchased the Company's former LaBour Pump business and other assets from the Company. Sterling has not filed a lawsuit against the Company in connection with these matters. The tendered complaints all purport to state claims against Sterling and its subsidiaries. The Company and its current subsidiaries are not named as defendants. The plaintiffs in the cases also allege that they were exposed to asbestos and products containing asbestos in the course of their employment. Each complaint names as defendants many manufacturers of products containing asbestos, apparently because plaintiffs came into contact with a variety of different products in the course of their employment. Plaintiffs claim that LaBour Pump Company, a former division of an inactive subsidiary of the Company, and/or Sterling may have manufactured some of those products. With respect to many of the tendered complaints, including the one settled by Sterling for US$200,000, the Company has taken the position that Sterling has waived its right to indemnity by failing to timely request it as required under the 1993 Purchase Agreement. With respect to the balance of the tendered complaints, the Company has elected not to assume the defense of Sterling in these matters. Headquartered in Bridgeton, Mo., Katy Industries, Inc. is a manufacturer, importer and distributor of commercial cleaning and storage products. Its commercial cleaning products are sold primarily to janitorial/sanitary and foodservice distributors that supply end users like restaurants, hotels, healthcare facilities and schools. ASBESTOS UPDATE: LaBour Pump Subject to 90 Open Cases at July 1 --------------------------------------------------------------- Katy Industries, Inc., says there are about 90 asbestos cases, related to the LaBour Pump Company, which remain active as of July 1, 2011, according to the Company's quarterly report filed on Aug. 15, 2011 with the Securities and Exchange Commission. LaBour Pump, a former division of an inactive subsidiary of the Company, has been named as a defendant in about 430 of the New Jersey cases tendered by Sterling Fluid Systems (USA). The Company has elected to defend these cases, the majority of which have been dismissed or settled for nominal sums. Headquartered in Bridgeton, Mo., Katy Industries, Inc. is a manufacturer, importer and distributor of commercial cleaning and storage products. Its commercial cleaning products are sold primarily to janitorial/sanitary and foodservice distributors that supply end users like restaurants, hotels, healthcare facilities and schools. ASBESTOS UPDATE: American Biltrite Liabilities Still at $17.7MM --------------------------------------------------------------- American Biltrite Inc.'s long-term asbestos-related liabilities were US$17.70 million as of both June 30, 2011 and Dec. 31, 2010, according to the Company's quarterly report filed on Aug. 15, 2011, with the Securities and Exchange Commission. The Company's long-term insurance for asbestos-related liabilities were US$17,646,000 as of both June 30, 2011 and Dec. 31, 2010. Headquartered in Wellesley Hills, Mass., American Biltrite Inc.'s major operations include its Tape Division, its jewelry division K&M Associates L.P., and its Canadian division, which consists of American Biltrite (Canada). ASBESTOS UPDATE: American Biltrite Facing 1,297 Cases at June 30 ---------------------------------------------------------------- American Biltrite Inc. is a co-defendant with many other manufacturers and distributors of asbestos containing products in approximately 1,297 pending claims involving about 1,843 individuals as of June 30, 2011. These claims relate to products of the Company's former Tile division, which the Company contributed to Congoleum Corporation in 1993. The claimants allege personal injury or death from exposure to asbestos or asbestos-containing products. During the six months ended June 30, 2011, the Company recorded 190 new claims, 19 settlements, and 135 dismissals. During the year ended Dec. 31, 2010, the Company recorded 304 new claims, 29 settlements, and 207 dismissals. The Company has multiple excess layers of insurance coverage for asbestos claims. The total indemnity costs incurred to settle claims were US$3.2 million during the six months ended June 30, 2011 and US$5.7 million during the year ended Dec. 31, 2010, all of which were paid by the Company's first-layer excess umbrella insurance carriers, as were the related defense costs. Headquartered in Wellesley Hills, Mass., American Biltrite Inc.'s major operations include its Tape Division, its jewelry division K&M Associates L.P., and its Canadian division, which consists of American Biltrite (Canada). ASBESTOS UPDATE: McJunkin Facing 958 Exposure Claims at June 30 --------------------------------------------------------------- McJunkin Red Man Holding Corporation, as of June 30, 2011, is a defendant in asbestos lawsuits involving about 958 such claims, according to the Company's quarterly report filed on Aug. 15, 2011, with the Securities and Exchange Commission. Each claim involves allegations of exposure to asbestos-containing materials by a single individual or an individual, his or her spouse and/or family members. The complaints typically name many other defendants. In a majority of these lawsuits, little or no information is known regarding the nature of the plaintiffs' alleged injuries or their connection with the products distributed by the Company. Through June 30, 2011, lawsuits involving over 11,786 claims have been brought against the Company with the majority being settled, dismissed or otherwise resolved. In total, since the first asbestos claim brought against the Company through June 30, 2011, about US$1.6 million has been paid to asbestos claimants in connection with settlements claims against it without regard to insurance recoveries. Headquartered in Houston, McJunkin Red Man Holding Corporation distributes pipes, pipe, valves and fittings (PVF) and related products and services to the energy industry. ASBESTOS UPDATE: South Hampton Still Facing Harris County Action ---------------------------------------------------------------- Arabian American Development Company's South Hampton Resources, Inc. affiliate is still named in an asbestos lawsuit, which is ongoing in the 11th Judicial District Court of Harris County, Tex., according to the Company's quarterly report filed on Aug. 15, 2011 with the Securities and Exchange Commission. On Sept. 14, 2010, South Hampton received notice of the lawsuit filed in the 58th Judicial District Court of Jefferson County, Texas which was subsequently transferred to the Harris County court. The suit alleges that the plaintiff became ill from exposure to asbestos. There are about 44 defendants named in the suit. The Company has placed its insurers on notice of the claim and plans to vigorously defend the case. No amounts have been accrued for this claim. Headquartered in Sugar Land, Tex., Arabian American Development Company's principal business activity is the manufacturing of various specialty petrochemical products. ASBESTOS UPDATE: Pacific Office Trust Posts $600T ARO at June 30 ---------------------------------------------------------------- The asbestos liability in Pacific Office Properties Trust, Inc.'s consolidated balance sheets for conditional asset retirement obligations was US$600,000 as of June 30, 2011 and Dec. 31, 2010. The Company records a liability for a conditional asset retirement obligation. Depending on the age of the construction, certain properties in its portfolio may contain non-friable asbestos. If these properties undergo major renovations or are demolished, certain environmental regulations are in place, which specify the manner in which the asbestos, if present, must be handled and disposed. Based on its evaluation of the physical condition and attributes of certain of its properties, the Company recorded conditional asset retirement obligations related to asbestos removal. The accretion expense for the three and six months ended June 30, 2011 and June 30, 2010 was not significant. Headquartered in San Diego, Calif., Pacific Office Properties Trust, Inc. owns and operates primarily institutional-quality office properties principally in selected long-term growth markets in southern California and Hawaii. The Company operates in a manner that permits it to satisfy the requirements for taxation as a real estate investment trust. ********* 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. Leah Felisilda, Noemi Irene A. Adala, Joy A. 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