/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/111007.mbx C L A S S A C T I O N R E P O R T E R Friday, October 7, 2011, Vol. 13, No. 199 Headlines 48-52 FRANKLIN: Accused of Breaching Construction Contract AMERON INTERNATIONAL: Defends Consolidated Suit Over NOV Merger ANTHEM BLUE CROSS: Mental Health Claims Class Action Certified ANZ BANK: Defends Overdraw Fees at Class Action Hearing BALLARD DESIGNS: Recalls 2,500 Step Stools Due to Fall Hazard COMMONWEALTH BANK: Settles Investor Class Action DYNEX CAPITAL: Settles Securities Class Action for $7.5 Million GLOUCESTER SEAFOOD: Faces Class Action for Defrauding Fishermen GOODRICH CORP: Faces More Suits Over Proposed Sale to United Tech. GUITAR CENTER: Terminates Lead Class Action Plaintiff Manager HOWARD INDUSTRIES: Sued Over Hiring Discrimination Practices IMPERIAL HOLDINGS: Faces Securities Class Suit in Florida IOWA: Faces Class Action Over Discriminatory Hiring Practices LCD PANEL MANUFACTURERS: Antitrust Suit Sent to State Court NEW YORK CITY, NY: HIV-Positive People File Class Action QUALITEST PRODUCTS: Sued Over Birth Control Pill Packaging Error RECONTRUST: Judge Allows Foreclosure Class Action to Proceed ST. JOHNS COUNTY, FL: Files Class Action v. Hotel Booking Sites STANFORD HOSPITAL: To Vigorously Defend Data Breach Class Action * Two Senators Introduce Bill to Allow Suits v. Cell Companies Asbestos Litigation ASBESTOS ALERT: Mangis Exposure Case v. Copart Filed on Aug. 10 ASBESTOS UPDATE: Ocean Rig UDW May be Subject to Exposure Claims ASBESTOS UPDATE: H.B. Fuller Settles 5 Suits, Claims at Aug. 27 ASBESTOS UPDATE: Cleanup in Schools Included in Obama Jobs Bill ASBESTOS UPDATE: Smith Action v. 74 Firms Filed Aug. 29 in W.Va. ASBESTOS UPDATE: Walsh Plant Fined for Breaches at Maesteg Site ASBESTOS UPDATE: N.Y. Contractor Charged for EPA Violations ASBESTOS UPDATE: Monks Sue Lothian Heating for Safety Violations ASBESTOS UPDATE: Southampton Housewife's Death Linked to Hazard ASBESTOS UPDATE: Marks and Spencer Fined GBP1M for Safety Breach ASBESTOS UPDATE: CSX Lawyer Seeks to Reverse Second-Hand Ruling ASBESTOS UPDATE: Bucknall Joiner's Death Due to Hazard Exposure ASBESTOS UPDATE: N.Y. Court Recalls, Vacates Ruling in Penn. Case ASBESTOS UPDATE: Partial Summary Judgment OK'd in Bowser Action ASBESTOS UPDATE: N.C. Court Reverses Decision in Johnson Lawsuit ASBESTOS UPDATE: N.Y. Supreme Court Junks Appeal in Klas Lawsuit ASBESTOS UPDATE: Defendants' Dismissal Bid OK'd in White's Claim ASBESTOS UPDATE: Court Accepts KOADI Application to Dismiss Hall ASBESTOS UPDATE: Appeal Court Affirms Ruling in Heckerman Action ASBESTOS UPDATE: Ga. Appeals Court Affirms Rulings in Butler Case ASBESTOS UPDATE: La. Court Vacates Ruling, Remands Buorque Claim ASBESTOS UPDATE: U.S. Congress Holds Hearing over Payout Fraud ASBESTOS UPDATE: Montgomery Action v. 92 Firms Filed in Kanawha ASBESTOS UPDATE: Hirsch Case v. 41 Firms Filed in St. Clair Co. ASBESTOS UPDATE: Wolff's Widow Awarded GBP258T in Compensation ASBESTOS UPDATE: Hoggett's Family Awarded GBP49T in Compensation ASBESTOS UPDATE: Cumbrian Scientist's Death Related to Exposure ASBESTOS UPDATE: Hawksley Worker's Family Awarded GBP92T Payout ASBESTOS UPDATE: NSW Police Union Calls for More Health Checks ASBESTOS UPDATE: Claims v. GenCorp Inc. Rise to 143 at Aug. 31 ASBESTOS UPDATE: Court Affirms Board Ruling in Castelli Lawsuit ASBESTOS UPDATE: Georgia-Pacific Summary Judgment OK'd in Foucha ASBESTOS UPDATE: Appeals Court Affirms Ruling in Phillips Action ********* 48-52 FRANKLIN: Accused of Breaching Construction Contract ---------------------------------------------------------- Kingdom Associates, Inc., on behalf of itself and others similarly situated v. 48-52 Franklin, LLC, Marshall Weisman, Eran Wajswol, Debra Van Sickle, Chieh Chang, Lily Chang, Andrew Chang, Man Fai Yu, Joan Yu, Ravish Sachar, Jignasa Sachar, George Gianoulakis, John Teck Jang Lim, Cynthia Y. Modelo, Maxigroupe USA, Inc., Amir Reza Dehdashti, East Franklin Essensa LLC, Capital One, N.A. as Successor by Merger to North Fork Bank, Hudson City Savings Bank, Deutsche Bank Trust Company Americas, Prospect Lending, LLC in Lieu of True Name Prospect Mortgage, LLC, HSBC Mortgage Corporation (USA) and "John Doe No. 1" through "John Doe No. 10," Case No. 652698/2011 (N.Y. Sup. Ct., October 3, 2011) accuses 48- 52 Franklin of breaching an agreement by failing to fully pay certain sums due and owing to the Plaintiff. Kingdom asserts that it provided certain labor and materials relating to excavation, foundation and site work in connection with a condominium construction project in what was then non- residential vacant land located at 50 Franklin Street, in New York, which was owned by 48-52 Franklin. Kingdom alleges that 48- 52 Franklin is liable for damages aggregating $115,000.00, plus applicable interest. Kingdom is a New York corporation. 48-52 Franklin is a domestic limited liability company with a place of business located in Lakewood, New Jersey. Maxigroupe is a domestic corporation while East Franklin is a domestic limited liability company. Both own units at the Franklin Property. Marshall Weisman is a resident of New Jersey and the managing member of 48-52 Franklin. The rest of the Individual Defendants own units at the Franklin Property. The identities of the Doe Defendants are currently unknown to the Plaintiff. Capital One is a New York banking corporation. Hudson City Savings is a federal stock savings bank and is a wholly owned subsidiary of Hudson City Bancorp, Inc. Deutsche Bank is a trust company with an office in Wall Street, New York. Prospect Lending is a foreign limited liability company duly licensed and authorized by the New York State Superintendent of Banks. HSBC Mortgage is a foreign business corporation that engages in mortgage lending in New York. The Plaintiff is represented by: Joseph P. Asselta, Esq. AGOVINO & ASSELTA, LLP 330 Old Country Road, Suite 201 Mineola, NY 11501 Telephone: (516) 248-9880 AMERON INTERNATIONAL: Defends Consolidated Suit Over NOV Merger --------------------------------------------------------------- Ameron International Corporation is defending itself in a consolidated class action lawsuit arising from its proposed merger with a subsidiary of National Oilwell Varco, Inc., according to the Company's October 4, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended August 28, 2011. On July 1, 2011, the Company entered into an Agreement and Plan of Merger with National Oilwell Varco, Inc. ("Parent" or "NOV"), and NOV Sub A, Inc., a wholly owned subsidiary of Parent ("Merger Sub"), pursuant to which, subject to the terms and conditions set forth in the Merger Agreement, the Company will become a wholly owned subsidiary of National Oilwell Varco, Inc. at closing. Following the announcement about the merger, three purported class action lawsuits were filed by stockholders on behalf of themselves and all similarly situated stockholders, in the Court of Chancery of the State of Delaware and the Superior Court of the State of California, County of Los Angeles, against the Company, the members of the Company's board of directors, and NOV challenging the proposed merger. The lawsuits assert claims for breach of fiduciary duty against the directors and aiding and abetting breach of fiduciary duty against the Company and NOV. The lawsuits seek to enjoin the defendants from completing the merger pursuant to the terms of the merger agreement, rescissory damages, an accounting, a constructive trust, attorneys' fees and costs, interest and other equitable relief. The consolidated amended complaint filed in the Delaware cases states that it names the Company as a necessary party in connection with the equitable relief sought in that complaint. The monetary relief sought against the Company is limited to attorneys' fees and costs, and Management believes that any such relief, if awarded, would be covered by insurance or would not have a material effect on the Company's financial position, cash flows or results of operations. ANTHEM BLUE CROSS: Mental Health Claims Class Action Certified -------------------------------------------------------------- A Los Angeles Superior Court recently certified a class-action lawsuit against health insurance provider, Anthem Blue Cross. The suit alleges that Anthem Blue Cross violated various California state laws by restricting the manner in which its policyholders receive benefits for outpatient mental health treatments for severe illnesses such as schizophrenia, bi-polar disorder, manic- depressive illness, obsessive compulsive disorder (OCD), anorexia nervosa, bulimia, panic disorder, and severe depression. According to the lawsuit, Anthem Blue Cross, beginning in January 2010, implemented a Behavioral Health Professional Outpatient Review Program that unlawfully restricted benefits for policyholders who sought reimbursement for more than 12 outpatient mental health treatments annually. The decisions denying coverage were, among other things, made by unqualified doctors who were biased against paying for medically necessary treatments for serious mental health illnesses and conditions. "This is an important case. Our clients are among California's most vulnerable citizens," said Michael L. Cohen of Cohen McKeon LLP, one of the law firms that was certified to represent the class of policyholders against Anthem Blue Cross. "The Unruh Act is California's principal anti-discrimination law. This is the first case of which we are aware in which a court has certified for class treatment under the Unruh Act a claim for discrimination against those with a 'disability' and the alleged discriminatory conduct is a corporate policy and not restricted physical access to a public building, such as curb cuts, ramps, size of bathroom stalls, handrails, etc." Kathryn Trepinski, a lawyer based in Beverly Hills, is also representing the policyholders against Anthem Blue Cross. The lawsuit is Katz v. Blue Cross [case BC451649]. Cohen McKeon LLP -- http://www.cohenmckeon.com-- is a Los Angeles-based law firm that focuses on representing policy holders in law suits against insurance companies. For further information, please contact: Michael L. Cohen, Esq. COHEN MCKEON LLP Los Angeles, CA (213) 413-6400 Telephone: (213) 413-6400 ANZ BANK: Defends Overdraw Fees at Class Action Hearing ------------------------------------------------------- Pia Ackerman, writing for The Australian, reports that ANZ Bank has defended "as necessary" its fees for customers who overdraw their accounts. According to the bank, the fees pay for the service the bank provides in "entertaining" the overdraw request and deciding whether to extend the money. In his opening submission to a preliminary class-action hearing in the Federal Court, ANZ's barrister Alan Archibald QC said the fees did not represent penalties because customers had not breached a contract by overdrawing their accounts. He said automatic refusal of overdrawn accounts would be "a recipe for chaos in the affairs of ordinary customers". The fees paid for "the undoubted service that the bank provides in entertaining the overdraw request and either allowing it or rejecting it", with terms in the bank's product disclosure statements giving customers "implicit permission to make the request". The court is hearing preliminary arguments in a class action in which 34,000 ANZ customers are seeking $50 million in redress for honor, dishonor and non-payment fees on regular accounts, and over-limit and late-payment fees for credit cards. Maurice Blackburn, on behalf of the ANZ customers, has argued the bank illegally charged "exception" fees as penalties. Judge Michelle Gordon questioned why the product disclosure statements, which told customers they "must not overdraw" their accounts, should not be read as a contractual obligation. "It smells like it's contractual," Justice Gordon said. Mr. Archibald said the disclosure statements lacked a critical "prohibitional element". He said there was no reason why the bank or customers would want overdrafts to constitute a breach of contract. The hearing continues. BALLARD DESIGNS: Recalls 2,500 Step Stools Due to Fall Hazard ------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Ballard Designs, Inc. of Atlanta, Georgia, announced a voluntary recall of about 2,500 Ballard Designs "Stafford" step stools. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. Plastic tabs on the feet of the step stools can cause the stools to be unstable, posing a fall hazard to consumers. Ballard Designs has received six reports that the stools were not stable, including two reports of falls resulting in minor injuries. This recall involves Ballard Designs "Stafford" step stools made of wood painted black or white. "Ballard Designs" is printed on a sticker under the bottom of the step. "Made in China" is printed on the underside bottom of the step stools. Also printed on the underside bottom of the step stools is one of the following five numbers: 100097963, 100099019, 100097230, 100100584 or 100102942. All recalled stools also have four plastic tabs affixed to the feet of the step stool. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12001.html The recalled products were manufactured in China and sold at Ballard Design stores in Florida, Georgia and Ohio, through Ballard Designs catalogs, on http://www.ballarddesigns.com/and http://www.hsn.com/from July 2009 through May 2011 for about $80. Consumers should immediately remove the four plastic tabs from the feet of their step stools. Instructions are available online at http://www.ballarddesigns.com/under the Product Safety page or by contacting Ballard Designs. Ballard Designs is directly contacting all known purchasers. For more information, contact Ballard Designs toll-free at (888) 606-2627 between 8:00 a.m. and 9:00 p.m. Eastern Time Monday through Friday and between 9:00 a.m. and 5:30 p.m. Eastern Time Saturday and Sunday or visit the firm's Web site at http://www.ballarddesigns.com/ COMMONWEALTH BANK: Settles Investor Class Action ------------------------------------------------ Leonie Lamont, writing for The Sydney Morning Herald, reports that Commonwealth Bank has come to a confidential settlement with investors who lost millions of dollars through the actions of an adviser who has since been banned by the corporate regulator from providing financial services. The class action was led by retiree Elizabeth Saunders against the bank's subsidiary, Commonwealth Financial Planning Ltd (CFP). She alleged that she lost more than AUD200,000 when, contrary to her instructions, financial adviser Don Nguyen placed her savings in high-risk investments. The class action was launched in February and followed an Australian Securities and Investments Commission (ASIC) inquiry into Mr. Nguyen that found numerous breaches of financial services laws. The bank agreed last year to a compensation program, in which it would calculate, and amend, the position investors would have been in had they received the appropriate advice. When approached by BusinessDay, Ben Slade, principal for Maurice Blackburn Lawyers, which ran the class action, said: "All we can say is the class action was resolved on a confidential basis." When the class action was launched, at least 14 investors signed up. Details aired in a case last year involving seven investors heard one couple had lost AUD2.5 million, while a super fund had lost AUD1 million. Mr. Nguyen was employed by CFP as an authorized representative between October 2003 and July 2009. In March this year, ASIC banned him from the financial services industry for seven years. Mr. Nguyen appealed, unsuccessfully, against that decision in June. "Mr. Nguyen's conduct was not isolated and persisted for a period of at least two years between 2006 and 2008, with multiple clients," ASIC noted when banning him. "Mr. Nguyen failed to demonstrate a willingness to ensure the highest standards of compliance with the financial services industry and lacked the necessary ability and knowledge to discharge the duties and obligations imposed by the Corporations Act on a provider of financial services." A spokeswoman for CBA said the settlement was confidential and it could not comment on matters regarding its former employee. DYNEX CAPITAL: Settles Securities Class Action for $7.5 Million --------------------------------------------------------------- Dynex Capital, Inc. on Oct. 4 disclosed that it has entered into a memorandum of understanding reflecting an agreement in principle to settle all claims asserted against all defendants of the class action lawsuit captioned In re Dynex Capital, Inc. Securities Litigation, Case No. 05 Civ. 1897 (HB) (S.D.N.Y.) now pending in the United States District Court for the Southern District of New York (the "Court"). The lawsuit was filed by the Teamsters Local 445 Freight Division Pension Fund in February 2005 and alleged violations of the federal securities laws on behalf of a class of purchasers of MERIT Series 12-1 and MERIT Series 13 securitization financing bonds between February 2000 and May 2004. The memorandum of understanding sets forth terms of a proposed settlement whereby the Company would pay $7.5 million into an escrow account following the negotiation and execution of a definitive settlement agreement and preliminary approval by the Court. The disbursement of the escrowed payment will be subject to notice to the class and final approval by the Court, in addition to any other conditions contained in the definitive settlement agreement. The Company continues to deny that it violated any federal securities laws and has agreed in principle to this settlement solely to eliminate the expense, burden and uncertainty of the litigation. The Company had not provided reserves for this litigation and accordingly the proposed settlement amount will be included as an expense in the Company's financial statements for the third quarter of 2011. The proposed settlement amount will reduce earnings per share for the third quarter of 2011 by approximately $0.186 per common share. The proposed settlement does not impact the Company's previously declared dividend for the third quarter of $0.27 per common share. "This settlement will resolve legacy litigation so that we may continue to focus on the long-term future of our business," said Thomas B. Akin, Chairman and Chief Executive Officer. "It will settle a significant uncertainty and does not materially impact the core operating or future earnings potential of the Company." Separately, the Company announced that it expects to exercise its option to refinance in October 2011 approximately $74.2 million in collateralized financings with repurchase agreement financing in order to take advantage of the lower interest rate environment and reduce its overall borrowing costs. Approximately $23.7 million in the collateralized financings is a securitization financing bond issued by the Company in 1998 and which finances commercial mortgage loans included in the Company's financial statements. The bond had recently been upgraded to 'AA' from 'A+' reflecting the high quality of the associated loan collateral. Overall the refinancing is expected to save the Company approximately $2.0 million annually in interest costs based on current anticipated market conditions and repurchase agreement financing terms (which are subject to change) and approximately $600,000 annually in amortization expense. The Company will take a one time non-cash charge of $2.0 million on the redemption of the securitization financing bond related to remaining unamortized discount recorded on the bond as of September 30, 2011. Consummation of the refinance is dependent on several factors, including, but not limited to, interest rates, the Company obtaining repurchase agreement financing on terms and conditions acceptable to the Company and the condition of repurchase financing markets generally. Dynex Capital, Inc. -- http://www.dynexcapital.com-- is an internally managed real estate investment trust, or REIT, which invests in mortgage assets on a leveraged basis. The Company invests in Agency and non-Agency RMBS and CMBS. The Company also has investments in securitized single-family residential and commercial mortgage loans originated by the Company from 1992 to 1998. GLOUCESTER SEAFOOD: Faces Class Action for Defrauding Fishermen --------------------------------------------------------------- Richard Gaines, writing for Gloucester Times, reports that the Ciulla family on Oct. 4 filed in U.S. Bankruptcy Court to protect the mostly theoretical assets left in the Gloucester Seafood Display Auction from liabilities traced to claims in a pending lawsuit. And the Chapter 7 filing came shortly before a suit filed last month against the business, alleging that the Auction cheated two fishermen by skimming, was rewritten this afternoon into a requested U.S. District Court class action that would include more than 100 fishermen and businesses. The expanded suit, filed in federal court in Boston, also alleges the Auction's scheme violated the Racketeer Influence and Corrupt Organization -- or RICO -- Act. "The plaintiffs' allegations are not made lightly, given the significant impact they will have on an already distressed fishing community," the plaintiffs said in the preface of the amended suit, a copy of which was obtained on Oct. 4 by the Times. The modified suit alleges that the Auction defrauded fishermen throughout the Northeast region, Maine to the Carolinas. The suit transformed about a month after both sides announced a settlement agreement for what is believed to be less than $100,000 that, if filed with the court at a future date, was described as obviating the litigation. But the case hit Gloucester and the region with breathtaking impact -- with a victim of federal law enforcement excesses now accused of defrauding fellow fishermen. The dual actions also reflect the instability of the legal terrain after the sale of assets by the Ciullas to Kristian Kristiansen, and a shift of control of the linchpin business of the nation's oldest and best-known fishing port. In exiting the Gloucester Seafood Display Auction, the Ciullas maintained their real estate holdings, 1.03 acres at Harbor Loop with an assessed value of $2,182,000. The Ciullas got out of the business on Sept. 7, selling the assets to a tenant and the recent buyer of Zeus Packing Co. New owner Kristiansen renamed the business the Cape Ann Seafood Exchange. The next day, two Cape Cod fishermen who had been doing business with the auction, filed a $1 million federal law suit against the business, alleging "breach of maritime contract." The fishermen, Eric Hesse and Greg Walinski -- both board members of the Cape Cod Commercial Hook Fishermen's Association -- filed on Oct. 4 to broaden their suit to a class action and added the Ciullas and their real estate company, Star Realty Management, as defendants. Added as named plaintiffs were Lily Jean Corp., whose principle owner is "Gussie" Sanfilippo, who fishes the F/V Lily Jean, and RMV Inc., whose principal, Paul Vitale, fishes the F/V Angela & Rose. The bankruptcy filing was made for the auction by Attorney David B. Madoff of Foxborough. The bankruptcy filing was first reported in the online edition Boston Business Journal earlier this afternoon. GOODRICH CORP: Faces More Suits Over Proposed Sale to United Tech. ------------------------------------------------------------------ Astor BK Realty Trust, individually and on behalf of all others similarly situated v. Marshall O. Larsen, Carolyn Corvi, Diane C. Creel, Harris E. DeLoach Jr., James W. Griffith, William R. Holland, John P. Jumper, Lloyd W. Newton, Alfred M. Rankin, Jr., Goodrich Corporation, UTC Corporation, and Charlotte Lucas Corporation, Case No. 652706/2011 (N.Y. Sup. Ct., October 4, 2011) is brought on behalf of the public stockholders of Goodrich against its Board of Directors for their breaches of fiduciary duties arising out of their attempt to sell the Company to United Technologies by means of an unfair process and for an unfair price. The Plaintiff alleges that the Individual Defendants have breached their fiduciary duties of loyalty, due care, independence, good faith and fair dealing, and that Goodrich and United Technologies have aided and abetted those breaches. The Plaintiff seeks to enjoin the Proposed Transaction unless and until the Defendants cure their breaches of fiduciary duty. The Plaintiff is a shareholder of Goodrich. Goodrich, a New York corporation, is one of the largest worldwide suppliers of aerospace components, systems, and services to the commercial and general aviation airplane markets. Goodrich is also a leading supplier of systems and products to the global defense and space markets. United Technologies is a diversified company providing high technology products and services to the global aerospace and building industries. Charlotte Lucas is wholly owned by United Technologies and was created for the purposes of effectuating the Proposed Transaction. The Individual Defendants are officers and directors of the Company. The Plaintiff is represented by: Joseph E. Levi, Esq. W. Scott Holleman, Esq. LEVI & KORSINSKY LLP 30 Broad Street, 15th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: jlevi@zlk.com sholleman@zlk.com - and - Donald J. Enright, Esq. Elizabeth K. Tripodi, Esq. LEVI & KORSINSKY, LLP 1101 30th Street, NW Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 Facsimile: (202) 333-2121 E-mail: denright@zlk.com etripodi@zlk.com GUITAR CENTER: Terminates Lead Class Action Plaintiff Manager ------------------------------------------------------------- According to Scott Cole of Scott Cole & Associates, within days of being hit with a class action lawsuit for failing to offer meal and rest breaks to its California workforce, Guitar Center fired the man who pioneered the lawsuit and allowed its workers to parade the named plaintiff's final paycheck around the workplace. In immediate reaction to these events, the plaintiff's attorneys at Scott Cole & Associates amended the Complaint on Oct. 4 to allege a wrongful termination and invasion of privacy claim. "If Guitar Center thinks it can send a message to its workers that standing up for their rights will cost them, this new wrongful termination claim sends a stronger message right back," says Mr. Cole, the principal lawyer on the case. "Firing our client was a big mistake." The lawsuit is entitled Pellanda v. Guitar Center, Inc. (San Francisco County Superior Court Case # CGC-11-513823). Oakland-based Scott Cole & Associates, APC -- http://www.scalaw.com-- is one of California's premiere class action law firms and is devoted to representing individuals in employment and consumer rights litigation. For more information about our practice and cases, visit www.scalaw.com or call (510) 891-9800. Contact: Scott Cole, Esq. Scott Cole & Associates Telephone: 510-891-9800 E-mail: scole@scalaw.com HOWARD INDUSTRIES: Sued Over Hiring Discrimination Practices ------------------------------------------------------------ Courthouse News Service reports that four black women say in a federal class action that Howard Industries preferentially hires undocumented Mexican immigrants at its transformer manufacturing plant in Laurel, Miss. A copy of the Complaint in Cook, et al. v. Howard Industries, Inc., 11-cv-00199 (S.D. Miss.), is available at: http://www.courthousenews.com/2011/10/04/Employ.pdf The Plaintiffs are represented by: J. Cliff Johnson II, Esq. PIGOTT & JOHNSON, P.A. 775 N. Congress Street Post Office Box 22725 Jackson, MS 39225-27 Telephone: (601) 354-2121 - and - Lisa M. Ross, Esq. LAW OFFICES OF LISA ROSS 514 E. Woodrow Wilson Ave. Jackson, MS 39283 Telephone: (601) 981-7900 IMPERIAL HOLDINGS: Faces Securities Class Suit in Florida --------------------------------------------------------- Imperial Holdings, Inc., says in its October 4, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission that a securities class action complaint has been filed against it and certain of its officers in Florida. Although the Company has not yet been served with any complaint, the Company has learned that on September 29, 2011, a putative securities class action complaint was filed in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida, entitled Martin J. Fuller v. Imperial Holdings, Inc., et al., against the Company, its Chairman and Chief Executive Officer, President and Chief Operating Officer, its Chief Financial Officer and Chief Credit Officer, its Director of Finance and Accounting, the members of its Board of Directors who signed the Company's registration statement, and the underwriters of the Company's initial public offering alleging certain violations of the Securities Act of 1933, as amended. The Company and its directors and officers named as defendants intend to vigorously defend against this claim. It is possible that additional complaints containing similar claims may be made by other plaintiffs. Failure by the Company to obtain a favorable resolution of such claims could have a material adverse effect on the Company's business, results of operations and financial condition, the amount of which cannot be reasonably estimated. IOWA: Faces Class Action Over Discriminatory Hiring Practices ------------------------------------------------------------- The Associated Press reports that lawyers for African Americans who were passed over for state jobs and promotions are expected to rest their case in a class-action lawsuit accusing state government of discriminatory hiring practices. Joe Ellis, a former state official responsible for equal employment opportunity and affirmative action programs, was expected to testify on Oct. 4 at the Polk County Courthouse. Lawyers representing 29 named class representatives and up to 6,000 members total are seeking tens of millions of dollars in lost wages from the state. After weeks of testimony, they plan to rest their case after questioning Mr. Ellis, who left state government in 2009. Lawyers representing the state are defending against the broad discrimination allegations, saying the hiring and employment practices vary by department and position being sought. LCD PANEL MANUFACTURERS: Antitrust Suit Sent to State Court ----------------------------------------------------------- Tim Hull at Courthouse News Service reports that dozens of LCD panel manufacturers accused of price-fixing must litigate in state court, the United States Court of Appeals for the Ninth Circuit ruled, finding that lawsuits filed by a state to protect its citizens are not class actions under federal law. The attorneys general of Washington and California allege that, from 1998 to 2006, Sharp, Toshiba, Epson and many other manufacturers of thin-film transistor liquid crystal display (LCD) panels engaged in a scheme to fix prices, stifle competition and overcharge consumers around the world. Both states filed antitrust actions on behalf of their citizens in their respective state courts, but the manufacturers removed the cases to federal court, claiming that the claims were parens patriae "disguised" as class actions. Latin for "parent of the nation," parens patriae is a legal theory that allows states to sue and seek redress on behalf of their citizens. The states moved to send the claims back to their own courts, and U.S. District Judge Susan Illston in San Francisco agreed. A three-judge panel of the 9th Circuit affirmed unanimously in a short ruling on Oct. 3. The court rejected the manufacturers' argument that the cases were actually class actions because the consumers, not the states, were the real parties-in-interest. Class actions may always be representative actions, but "representative actions are not necessarily class actions," the judges found. "The doctrine of parens patriae allows a sovereign to bring suit on behalf of its citizens when the sovereign alleges injury to a sufficiently substantial segment of its population, articulates an interest apart from the interests of particular private parties, and expresses a quasi-sovereign interest," Judge Sidney Thomas wrote for the San Francisco-based appeals panel. "Unlike private litigants, the attorneys general have statutory authority to sue in parens patriae and need not demonstrate standing through a representative injury nor obtain certification of a class in order to recover on behalf of individuals." A copy of the Opinion in Washington State, et al. v. Chimei Innolux Corp., et al., No. 11-16862 (9th Cir.), is available at: http://is.gd/flN2it NEW YORK CITY, NY: HIV-Positive People File Class Action -------------------------------------------------------- Courthouse News Service reports that HIV-positive people say in a federal class action that the New York City Human Resources Administration and HIV/AIDS Services Administration illegally withhold retroactive payments of Social Security disability to reimburse themselves for cash assistance provided while the SSI applications are pending. QUALITEST PRODUCTS: Sued Over Birth Control Pill Packaging Error ---------------------------------------------------------------- Lisa Coston at Courthouse News Service reports that a woman claims in a class action that she became pregnant because her birth control pills were packaged backward: with the placebos placed at the beginning of the month rather than at the end. Lauren Betancourt sued Qualitest Products, Brenn Distribution and Endo Pharmaceuticals in Cobb County Court, in a class action demanding more than $5 million in damages. Ms. Betancourt says she took the birth control pills -- under the trademark names Cyclafem 1/35, Cyclafem 7/7/7, Emoquette, Gildess FE 1.5/30, Gildess FE 1/20, Orsythia, Previfem and Tri-Previfem -- and followed the daily regimen prescribed on the blister pack. As is customary with birth control pills, the routine includes taking a daily dose of a 21- or 28-day cycle of synthetic estrogen, or a combination of estrogen and progestin, which blocks production of follicle-stimulating hormone, preventing ovulation. At the end of the cycle, the pack contains 7 days of placebo pills, which allows the woman to menstruate before starting the next cycle of pills. Ms. Betancourt says the pills were packed placebos first, instead of last. "The birth control pills purchased by the plaintiff were packaged such that select blisters found inside the pill box were rotated 180 degrees within the card, reversing the weekly tablet orientation," the complaint states. "As a result of the packaging error, the daily regimen for the birth control pills left women without adequate contraception and at risk for unwanted pregnancy." Ms. Betancourt became pregnant. "As a legal result of defendant Qualitest, Brenn and Endo's negligence, the plaintiff is pregnant and she has suffered and may suffer bodily injury resulting in pain and suffering, mental anguish, loss of capacity for the enjoyment of life, expensive health care and treatment, loss of earnings, and a loss of ability to earn money," according to the complaint. Ms. Betancourt seeks class damages for negligent design, manufacturing, packaging and distribution of the birth control pills. A copy of the Complaint in Betancourt v. Qualitest Products, Inc., et al., Case No. 2011A3971-2 (Ga. State Ct., Cobb Cty.), is available at: http://www.courthousenews.com/2011/10/04/Preggers.pdf The Plaintiff is represented by: Steven L. Beard, Esq. STEVEN L. BEARD, P.C. 324 Cherokee Street Marietta, GA 30060 Telephone: (770) 422-2642 - and - Keith D. Bodoh, Esq. ROBERTSON, BODOH & NASRALLAH, LLP 990 Cobb Parkway North, Suite 205 Marietta, GA 30062-2410 Telephone: (770) 424-1234 E-mail: Bodoh@RBNlaw.com RECONTRUST: Judge Allows Foreclosure Class Action to Proceed ------------------------------------------------------------ Morgan Skinner, writing for KCSG News, reports that US District Judge Dee Benson ruled on Oct. 4 that a class action lawsuit can proceed against ReconTrust and Bank of America. The class action lawsuit filed by attorneys John Christian Barlow and E. Craig Smay on November 5, 2011(Case No. 10-1099) against ReconTrust and Bank of America, Mortgage Electronic Registration Systems, Countrywide Home Loans, HSBC Bank, Wells Fargo Bank, U.S. Bank, Bank of New York/Mellon, KeyBank alleges violations of the, Fair Debt Collections Practices Act, Utah Pattern of Unlawful Activity Act (FDCPA), Unlawful Foreclosures, and Intentional Infliction of Emotional Distress. Judge Benson said that after considering the memoranda and the oral arguments, the Court finds the Plaintiffs failed to allege that MERS, HSBC, Wells Fargo, and Bank of New York Mellon were involved in the conduct giving rise to any claims. Regarding ReconTrust, Bank of America, N.A., and BAC Home Loans Servicing, LP, the Court found that the Plaintiffs have plead sufficient allegations against them to survive a motion to dismiss. The judge ruled that ReconTrust's contention that it may properly foreclose on properties located in Utah pursuant to 12 U.S.C. Sec. 92a which allows it to foreclose as a trustee in the State of Texas does not apply in Utah. The Court agrees with the reasoning applied in Cox v. ReconTrust Company, N.A., 2011 WL 835893 (March 3, 2011 D. Utah). In that case, the Court stated: "Under a straight forward reading of Sec. 92a(b), this Court must look to Utah law in its analysis of whether ReconTrust's activities in Utah exceed ReconTrust's trustee powers. The powers granted to ReconTrust under federal law in this case are limited by the powers granted by Utah state law to ReconTrust's competitors. Accordingly, the extent of ReconTrust's federal powers must be determined by reference to the laws of Utah, not by reference to the laws of some other state. Under Utah law, the power to conduct a non-judicial foreclosure is limited to attorneys and title companies. The scope of the powers granted by federal law is limited to the same power Utah statute confers on ReconTrust's Utah competitors. The federal issue, therefore, is whether ReconTrust is a competitor of Utah attorneys or title insurance companies." Because the parties did not brief the issue of whether ReconTrust competes with Utah attorneys or title insurance companies, the Court did not rule on that matter. Barlow told KCSG News that ReconTrust, the foreclosure arm of the Bank of America has performed thousands of illegal home foreclosures in Utah in violation of State laws already upheld by the 10th Circuit case, Shurtleff v. Kleinsmith in which Utah Code Sections 51-1-21 and 57-1-12 were found to be constitutional. The attorneys for the Plaintiffs plan to amend their class action case showing unlawful foreclosures were performed by ReconTrust as a trustee of Mortgage Electronic Registration Systems, Countrywide Home Loans, HSBC Bank, Wells Fargo Bank, U.S. Bank, Bank of New York/Mellon and KeyBank. Mr. Barlow said Mr. Smay and he will vigorously prosecute this case to the fullest extent of the law in behalf of Utah homeowners who have been unlawfully deprived of their rights and had their homes taken in fraudulent foreclosures. Homeowners who have lost their homes through an unlawful non- judicial foreclosure have seven-years under Utah law to seek redress, Mr. Barlow said. ST. JOHNS COUNTY, FL: Files Class Action v. Hotel Booking Sites --------------------------------------------------------------- Anjalee Khemlani, writing for Beaches Leader, reports that booking a hotel room online may save consumers money, but local government suffers losses due to the method of tax collection in business models of online sites. St. Johns County, along with various other Florida counties, is currently in a class action lawsuit against online hotel booking sites, said Glenn Hastings, executive director of the county Tourist Development Council. STANFORD HOSPITAL: To Vigorously Defend Data Breach Class Action ---------------------------------------------------------------- Jason Green, writing for Palo Alto Daily News, reports that Stanford Hospital & Clinics vowed on Oct. 3 to "vigorously defend" itself against a $20-million class-action complaint filed in the wake of a data breach that saw the medical records of 20,000 patients posted on a commercial Web site for nearly a year. Shana Springer filed the complaint on Sept. 28 in Los Angeles County Superior Court, on behalf of fellow patients treated in Stanford's emergency room between March 1, 2009, and Aug. 31, 2009. She is seeking $1,000 per patient, as well as other penalties, damages and attorneys' fees. The nine-page complaint alleges the hospital violated the Confidentiality of Medical Information Act, a state law that requires medical providers to safeguard patient information and prohibits its disclosure without written consent. "On its Web site, Stanford claims that its patients' 'health care experience is [its] highest priority.' Thus, it should be no surprise that when patients are treated at Stanford's facilities, they expect that their private medical information will be kept confidential and will not be disclosed to anyone without their authorization," the complaint states. In a brief statement released on Oct. 3, Stanford placed the blame on complaint codefendant Multi-Specialty Collection Services LLC, saying it was the subcontractor that mishandled the data. The hospital has since cut ties with the Woodland Hills-based company, which provided collection and billing services. "(Stanford Hospital Advertisement & Clinics) intends to vigorously defend the lawsuit that has been filed as it acted appropriately and did not violate the law as claimed in the lawsuit," the statement said. According to the complaint, Multi-Specialty Collection Services was "in part responsible for the unlawful disclosure of the private medical information of Plaintiff and class members." Stanford confirmed the data breach on Sept. 8. The released information included medical record numbers, hospital account numbers, billing charges, and emergency room admission and discharge dates. It also revealed a Santa Clara man's psychiatric diagnosis. Credit card and Social Security numbers were not included. According to its statement, the hospital properly sent the data to Multi-Specialty Collection Services in an encrypted format to protect its confidentiality. The company produced an electronic spreadsheet, which it allegedly sent to a third party for help creating a graph to display the data. That third party then posted the information on a public Web site, Stanford said. Ms. Springer's complaint identified the Web site as Student of Fortune, which solicits bids to answer homework questions. The data first appeared online in early September 2009. The identity of the person who uploaded the information was not disclosed in either the complaint or the statement. "This mishandling of private patient information was in complete contravention of the law and of the requirements of (Multi- Specialty Collection Service's) contract with (Stanford Hospital & Clinics) and is shockingly irresponsible," Stanford said in its statement. However, no identity theft cases have been reported as a result of the data breach, which went unnoticed for nearly a year, according to the hospital. "To date there is no evidence that anyone saw this information on the Web site and improperly used it for fraudulent or any other improper purpose," the statement said. "(Stanford Hospital & Clinics) has investigated this matter, terminated its relationship with (Multi-Specialty Collection Service), and reported this breach to law enforcement authorities." The hospital reiterated Monday that it moved quickly to have the sensitive information pulled from the Web site once it became aware of the data breach, notified the affected patients and provided free identity protection services. Multi-Specialty Collection Services representatives could not be reached for comment late Monday afternoon. Los Angeles-based lawyers Brian S. Kabateck, Richard L. Kellner, Karen Liao, Byron T. Ball and Bradley I. Kramer are representing Ms. Springer and the proposed class. * Two Senators Introduce Bill to Allow Suits v. Cell Companies -------------------------------------------------------------- Carol Bishopric, writing for Reuters, reports that two senators introduced a bill on Oct. 4 to prohibit wireless companies from having clauses in contracts that prohibit consumers from suing the companies because of hidden fees or other contract disputes. Senators Richard Blumenthal of Connecticut and Al Franken of Minnesota introduced the measure, which would ban the common practice of putting clauses in wireless phone and data contracts that require consumers to use binding arbitration in the case of a dispute. The proposed legislation is in response to a U.S. Supreme Court ruling in April that an AT&T unit could enforce a provision in its customer contracts requiring individual arbitration and preventing the pooling together of claims into a class-action lawsuit or class-wide arbitration. The plaintiffs in that suit, a California couple, filed their class-action lawsuit in 2006, claiming they were improperly charged about $30 in sales taxes on cellphones that the AT&T Mobility wireless unit had advertised as free. "This bill makes sure that Minnesotans have the ability to hold their mobile service providers accountable if they are cheated. It also ensures that any dispute resolved through arbitration is truly voluntary, and that consumers are not being forced into it," Senator Al Franken said in a statement. Companies generally prefer arbitration as a less expensive way of settling consumer disputes, as opposed to costly class actions, which allow customers to band together and can result in large monetary awards. Some consumers have complained of things like being charged for data even when applications are disabled or their mobile device is turned off. Wireless companies either declined comment or could not be reached for comment. The CTIA - The Wireless Association, a trade group for wireless companies, called the legislation "misguided." "If the sponsors really want to help consumers, they should spend less time on stimulating the market for trial lawyers and more time working to free additional spectrum that can be used to deliver world-class wireless broadband service to American consumers," the group said in a statement. Asbestos Litigation ASBESTOS ALERT: Mangis Exposure Case v. Copart Filed on Aug. 10 --------------------------------------------------------------- Copart Inc. says that on Aug. 10, 2011, Glenn A. Mangis and Lynn Brown-Mangis, husband and wife, filed an asbestos suit against the Company in the Superior Court of Washington for Pierce County. The suit alleges exposure to asbestos during the course of his employment as a carpenter, electrician and laborer; and as a direct result of said exposure, Mr. Mangis developed mesothelioma. Mrs. Mangis is alleging loss of spousal relationship as a result. Relief sought is for general and special damages, medical and related expenses, costs and disbursements in case, prejudgment interest and all other relief the Court deems just. No specific amount was given. COMPANY PROFILE: Copart, Inc. 4665 Business Center Drive Fairfield, Calif. 94534 Phone Number: (707) 639-5000 Description: Copart Inc. provides online auctions and vehicle remarketing services in the United States, Canada and the United Kingdom. ASBESTOS UPDATE: Ocean Rig UDW May be Subject to Exposure Claims ---------------------------------------------------------------- DryShips Inc.'s Ocean Rig UDW subsidiary may be, from time to time, involved in various litigation matters including asbestos and other toxic tort claims. No significant asbestos-related matters were discussed in a Company report, on Form 6-K, filed with Securities and Exchange Commission on Sept. 22, 2011. A subsidiary of Athens, Greece-based DryShips Inc., Ocean Rig UDW is an international offshore drilling contractor providing oilfield services for offshore oil and gas exploration, development and production drilling and specializing in the ultra- deepwater and harsh-environment segment of the offshore drilling industry. ASBESTOS UPDATE: H.B. Fuller Settles 5 Suits, Claims at Aug. 27 --------------------------------------------------------------- H.B. Fuller Company settled five asbestos-related lawsuits and claims during the 39 weeks ended Aug. 27, 2011, compared with three lawsuits and claims during the 39 weeks ended Aug. 28, 2010. During the 39 weeks ended Aug. 27, 2011, the Company reached settlements amounting to US$400,000 and received or expects to receive insurance payments of US$300,000. During the 29 weeks ended Aug. 28, 2010, the Company reached settlements amounting to US$400,000 and received or expects to receive insurance payments of US$400,000. The Company has been named as a defendant in lawsuits in which plaintiffs have alleged injury due to products containing asbestos manufactured more than 25 years ago. A significant portion of the defense costs and settlements in asbestos-related litigation continues to be paid by third parties, including indemnification under the provisions of a 1976 agreement under which the Company acquired a business from a third party. Historically, this third party routinely defended all cases tendered to it and paid settlement amounts resulting from those cases. In the 1990s, the third party sporadically reserved its rights, but continued to defend and settle all asbestos-related claims tendered to it by the Company. In 2002, the third party rejected the tender of certain cases and indicated it would seek contributions for past defense costs, settlements and judgments. However, this third party is defending and paying settlement amounts, under a reservation of rights, in most of the asbestos cases tendered to the third party. In addition, to delineate its rights under certain insurance policies, in October 2009, the Company commenced a declaratory judgment action against one of its insurers in the U.S. District Court for the District of Minnesota. Additional insurers have been brought into the action to address issues related to the scope of their coverage. During the fourth quarter of 2007, the Company and a group of other defendants entered into negotiations with certain law firms to settle a number of asbestos-related lawsuits and claims over a period of years. In total, the Company had expected to contribute up to US$4.1 million, based on a present value calculation, towards the settlement amounts to be paid to the claimants in exchange for full releases of claims. Of this amount, the Company's insurers had committed to pay US$2 million based on the probable liability of US$4.1 million. Its contributions toward settlements from the time of the agreement through the end of fiscal year 2010 were US$1.7 million with insurers paying US$900,000 of that amount. Based on this experience, the Company reduced its reserves in the fourth quarter of 2010 to an undiscounted amount of US$800,000 with insurers expected to pay US$500,000. During the first nine months of 2011, the Company contributed another US$200,000 toward settlements with insurers paying US$100,000 of that amount. This reduced the Company's reserves for this agreement to US$600,000 with an insurance receivable of US$400,000. As of Aug. 27, 2011, the Company's probable liabilities and insurance recoveries related to asbestos claims were US$800,000 and US$600,000. St. Paul, Minn.-based H.B. Fuller Company makes adhesives, sealants, powder coatings for metals (office furniture, appliances), and liquid paints (in Latin America). ASBESTOS UPDATE: Cleanup in Schools Included in Obama Jobs Bill --------------------------------------------------------------- U.S. President Barack Obama's proposed new jobs bill, officially titled the "American Jobs Act," includes a measure to rid schools across the nation of asbestos, Asbestos.com reports. The proposed US$447 billion plan was created to stimulate jobs in America. If the bill passes, it will also fund asbestos abatement, which is the process of identifying, removing and disposal of asbestos. Upon the passing of the jobs bill, money will be allocated to school districts for the improvement and renovation of the 100 largest and "high need" public school districts around the country, benefiting an estimated 35,000 schools. According to a White House news release, the proposed jobs plan will provide funds for asbestos removal and abatement, greening and energy efficiency upgrades along with a range of other advancements that could begin within three to six months of enactment. Older school buildings, especially those built before 1978, are most at risk for containing asbestos. Because of the widespread use of asbestos in earlier decades, it can be found all over schools in places like ceiling tiles, vinyl floor coverings, heating and cooling systems in addition to other areas in buildings. ASBESTOS UPDATE: Smith Action v. 74 Firms Filed Aug. 29 in W.Va. ---------------------------------------------------------------- Constance J. Smith, a woman from Ironton, Ohio, filed an asbestos lawsuit on Aug. 29, 2011 in Kanawha Circuit Court, W.Va., claiming that 74 companies are responsible for her husband Herold Leonydus Smith's cancer and death, The West Virginia Record reports. According to the complaint, in August 2005, Mr. Smith was diagnosed with laryngeal cancer, of which he died from on Sept. 5, 2009. Mr. Smith was employed as a roundhouse worker and a laborer, maintenance foundry worker and rigger by C&O and AK Steel from 1949 until 1985, according to the suit. Mrs. Smith claims her late husband smoked cigarettes between 1947 and 1978, but quit after that. Mrs. Smith seeks a jury trial to resolve all issues involved. She is being represented by Bronwyn I. Rinehart, Esq. Kanawha Circuit Court Case No. 11-C-1494 has been assigned to a visiting judge. ASBESTOS UPDATE: Walsh Plant Fined for Breaches at Maesteg Site --------------------------------------------------------------- A Pontypridd, Wales-based demolition contractor, Walsh Plant Hire and Demolition Contractors Ltd., has been fined after exposing workers to asbestos fiber at the former Revlon factory in Maesteg, Wales, according to a Health and Safety Executive press release dated Sept. 26, 2011. An HSE investigation found Walsh Plant Hire ignored repeated warnings to manage the safe removal of asbestos during work on the demolition of the site. Bridgend Magistrates Court heard the Company was first served with a Prohibition Notice ceasing activity at the site in February 2010, because work to remove asbestos cement sheeting debris was likely to generate asbestos dust which could have posed a health risk to those working at the site. Before resuming work, the Company was required to produce a plan for the safe removal of the materials to make sure it was properly managed. A management plan was developed to keep the asbestos cement in a safe condition by damping down the waste until it was removed from the site. However, a further visit by the HSE on May 27, 2010, found the Company had ignored the guidelines in its own plan, as the site was dry, and no damping down had been undertaken for a week. Excavators were also found to be moving rubble contaminated with asbestos-containing debris, and tracking over asbestos cement fragments, potentially contaminating workers with asbestos dust. Walsh Plant Hire and Demolition Contractors Ltd, of Unit 6, Old Parish Road, Ynysybwl, Pontypridd, pleaded guilty to breaching Regulation 7(5) of the Control of Asbestos Regulations 2006. The Company was fined on Sept. 26, 2011 for GBP5,000 and ordered to pay full costs of GBP6,828. After the hearing, HSE inspector Phil Nicolle said, "The Company was well aware of what it should have done to ensure the health of its workers and others when working with asbestos-containing materials at the site. "HSE had taken previous enforcement action to ensure the company had a plan of work to manage the asbestos material safely. This plan was prepared but then ignored by the Company." ASBESTOS UPDATE: N.Y. Contractor Charged for EPA Violations ----------------------------------------------------------- After a two day hearing in federal court in Rochester, N.Y., U.S. District Court Judge Charles J. Siragusa sentenced 54-year-old Keith Gordon-Smith to six years in prison on Sept. 21, 2011, for knowingly violating the Clean Air Act and making false statements to a federal inspector, according to a U.S. Environmental Protection Agency press release dated Sept. 22, 2011. Mr. Gordon-Smith, of Rochester, N.Y., was also sentenced to serve a three year term of supervised release to follow his prison term and was ordered to pay a $1,100 special assessment. Mr. Gordon- Smith's now defunct company was sentenced to pay a special assessment of US$4,400. No level of exposure to asbestos is safe, so removal by untrained workers, performed without the necessary safeguards, threatens the health of those workers and the public. Cynthia Giles, assistant administrator for EPA's Office of Enforcement and Compliance Assurance, said, "Ensuring Clean Air Act work practice standards for asbestos are followed when renovating or razing a building is critical to protecting workers and the public. This sentence shows that when employers fail to adhere to the requirements of the law to make a profit, the consequences are serious." Ignacia S. Moreno, assistant attorney general for the Environment and Natural Resources Division of the Department of Justice, said, "The court's sentence properly punishes Gordon-Smith and his company for the egregious crimes that placed workers and their families at risk and for his complete disregard of the environmental laws that protect human health and the environment. The court's sentence should send a strong message to asbestos abatement contractors that they will be held accountable to the fullest extent of the law." U.S. Attorney William J. Hochul, Jr. said, "The highly dangerous actions of Keith Gordon-Smith exposed both workers and the public to hazardous materials. Those in the asbestos removal industry are well compensated for their work, but in return are under legal and moral obligation to perform the job correctly. When a company cuts corners -- or worse -- intentionally exposes workers and the public to harm -- our Office will act quickly and decisively." Mr. Gordon-Smith hired a number of workers who had no training in asbestos removal and did not know they were being exposed to the asbestos while removing the copper pipes. Evidence at sentencing showed that when workers questioned Mr. Gordon-Smith, he lied and told them the areas did not contain asbestos. Mr. Gordon-Smith ultimately lied to an Occupational Safety and Health Administration inspector who came to the site in September 2007 and October 2007 to investigate allegations of illegal asbestos removal. When the workers removed the pipes and scrap metal, they were repeatedly exposed to asbestos, and described that the asbestos fell on them "like snow." The workers were not provided with any protective clothing or respirators while tearing out the asbestos- contaminated pipes and wore their asbestos-contaminated clothing back to their homes and families after work. The jury also convicted Mr. Gordon-Smith and his company, Gordon- Smith Contracting, Inc., of causing GSCI workers to illegally remove and dispose of asbestos during the actual asbestos abatement at the west wing of the Genesee Hospital complex, from May 2007 until February 2009. The asbestos was allowed to flow from upper floors through drains and holes in containment. Large amounts of asbestos were left hidden in the west wing. Mr. Gordon-Smith was fired from the site in February 2009. The building was subsequently cleaned of asbestos before it was demolished in September 2010. Mr. Gordon-Smith and his company were also convicted by the jury of six counts of failing to provide required notices to EPA prior to commencing asbestos abatement projects at six different sites in the Rochester area, between 2005 and June 2008. The sites included the west wing of the Genesee Hospital complex, Cobbles Elementary School in Penfield, Bloomfield Elementary School in East Bloomfield, the Al Sigl Center in Rochester, and the Hillside Children's Center in Varick. The case was prosecuted by the U.S. Attorney's Office for the Western District of New York with the Environmental Crimes Section of the Natural Resources Division of the Department of Justice. The case was investigated by the U.S. EPA Criminal Investigation Division and the U.S. Department of Labor Office of the Inspector General. Criminal investigators were assisted by OSHA and the New York Department of Labor Asbestos Control Bureau. ASBESTOS UPDATE: Monks Sue Lothian Heating for Safety Violations ---------------------------------------------------------------- The Order of Friars Minor sued heating firm Lothian Heating Services for GBP35,000 when workers battered two holes in a wall of the religious group's Edinburgh, Scotland, base, the Edinburgh Evening News reports. Lothian Heating staff had spent a week installing a new heating system before they noticed an asbestos warning in the monks' toilet. The Health and Safety Executive was called in and work had to stop immediately so the asbestos could be disposed of. Members of the religious group from the city's Craigmillar area usually spend their time praying and carrying out charity work. However, they became embroiled in a legal action at Edinburgh Sheriff Court to recover the GBP35,000 they spent making their building safe again. The monks claimed workers failed to check whether asbestos was present in the building ahead of work to replace the chapel's heating system. Aside from complaining about the release of the asbestos, the monks also said the structure of their building was left unsound when the workmen tore the holes in the wall. The monks have remained tight-lipped about the outcome of the case, although a joint minute agreeing a settlement was due to be lodged with the court in September 2011, according to officials. Lodged legal papers said Friar Father Collins entered into a contract with the heating firm in February 2007 on behalf of the order. The deal was for the design, supply and installation of a heating system for the chapel, and the company was also commissioned to remove the existing heating system. On May 17, 2007, Lothian Heating's employees created a large access hole through the wall from the boiler house of the building to facilitate the removal of old pipes. The pipes had asbestos insulation material attached to them. On May 24, 2007, one of the employees noticed an asbestos warning sticker "by chance" in the male toilets on the ground floor of the property. The workers spoke to Father Anthony about the "possible presence" of the asbestos, and he told them there was an asbestos register and provided them with a copy. From this, the Company "ascertained that they had unknowingly been working with dangerous asbestos." The matter was then reported to the HSE and work stopped. However, lawyers acting for the firm said a survey was commissioned by the monks in 2005 to establish the presence of asbestos. ASBESTOS UPDATE: Southampton Housewife's Death Linked to Hazard --------------------------------------------------------------- An inquest heard that the death of 68-year-old Wendy Riley, a housewife from Southampton, England, was related to second-hand exposure to asbestos, the Southern Daily Echo reports. The inquest heard that Mrs. Riley died of mesothelioma after becoming exposed to asbestos when washing her husband's clothes. She died at Countess Mountbatten House at Moor Green Hospital. The inquest heard how Mrs. Riley would pick asbestos fibers out of her husband's work clothes while he worked in insulation and shipbuilding. This long-term exposure then led to her developing malignant mesothelioma. Assistant Deputy Coroner for Central Hampshire, Sarah Whitby, recorded a verdict of death due to an industrial disease. ASBESTOS UPDATE: Marks and Spencer Fined GBP1M for Safety Breach ---------------------------------------------------------------- Marks and Spencer plc has been fined GBP1 million for putting members of the public, staff and construction workers at risk of exposure to asbestos-containing materials during the refurbishment of two stores in Reading and Bournemouth, according to a Health and Safety Executive press release dated Sept. 27, 2011. Three of the Company's contractors have also been penalized. The sentencing hearing, at Bournemouth Crown Court, resulted in Marks and Spencer plc being fined and ordered to pay costs of GBP600,000, PA Realisations Ltd being fined GBP200, and Styles & Wood Limited being fined GBP100,000 and ordered to pay costs of GBP40,000, all for breaches that took place at the Marks and Spencer plc store in Broad Street, Reading. Willmott Dixon Construction Ltd was fined GBP50,000 and ordered to pay costs of GBP75,000, for breaches that took place at the Marks and Spencer plc store in Commercial Road, Bournemouth. Willmott Dixon Construction Ltd is applying for permission to appeal against conviction. As a result of a prosecution brought by the HSE, Marks and Spencer plc, Willmott Dixon Construction Ltd and PA Realisations Ltd (formerly Pectel Ltd) were found guilty in July 2011. Styles & Wood Limited pleaded guilty at an earlier hearing in January 2010. The work was carried out between 2006 and 2007 on shops in Reading and Bournemouth. During the three month trial, which ended in July 2011, Winchester Crown Court heard construction workers at the two stores removed asbestos-containing materials that were present in the ceiling tiles and elsewhere. The court heard that the client, Marks and Spencer plc, did not allocate sufficient time and space for the removal of asbestos- containing materials at the Reading store. The contractors had to work overnight in enclosures on the shop floor, with the aim of completing small areas of asbestos removal before the shop opened to the public each day. HSE alleged that Marks and Spencer plc failed to ensure that work at the Reading store complied with the appropriate minimum standards set out in legislation and approved codes of practice. The Company had produced its own guidance on how asbestos should be removed inside its stores, and the court heard that this guidance was followed by contractors inappropriately during major refurbishment. The contractor, PA Realisations Ltd, failed to reduce to a minimum the spread of asbestos to the Reading shop floor. Witnesses said that areas cleaned by the Company were re-contaminated by air moving through the void between the ceiling tiles and the floor above, and by poor standards of work. Styles & Wood Limited, the principal contractor at the Reading store, admitted that it should not have permitted a method of asbestos removal, which did not allow for adequate sealing of the ceiling void, which resulted in risks to contractors on site. The principal contractor at the Bournemouth store, Wilmott Dixon Construction Ltd, failed to plan, manage and monitor removal of asbestos-containing materials. It did not prevent the possibility of asbestos being disturbed by its workers in areas that had not been surveyed extensively. Marks and Spencer plc, of Waterside House, North Wharf Road, Westminster, was found guilty of breaching section 2(1), relating to its own staff, and section 3(1), relating to members of the public and other workers, of the Health and Safety at Work etc Act 1974, on July 18, 2011. At the sentencing that took place at Bournemouth Crown Court on Sept. 27, 2011, Marks and Spencer plc was fined GBP1 million and ordered to pay costs of GBP600,000. These charges and fines relate to the Broad Street, Reading store and date from April 24, 2006 to Nov. 13, 2006. Willmott Dixon Construction Ltd, of Hertfordshire, was found guilty of contravening sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 between Feb. 5, 2007 and Feb. 28, 2007, on July 18, 2011. At the sentencing which took place at Bournemouth Crown Court on Sept. 26, 2011, Willmott Dixon Construction Ltd was fined GBP50,000 and ordered to pay costs of GBP75,000. These breaches took place at the Marks and Spencer plc store in Commercial Road, Bournemouth. Manchester-based company PA Realisations Ltd (formerly Pectel Ltd), of the Observatory, Chapel Walks, Manchester, was found guilty, on July 18, 2011, of contravening regulation 15 of the Control of Asbestos at Work Regulations 2002 between May 5, 2006 and Nov. 12, 2006 at the Marks and Spencer plc store on Broad Street, Reading. At the sentencing that took place at Bournemouth Crown Court on Sept. 27, 2011, PA Realisations Ltd was fined GBP200. The Company went into administration in December 2008 and now awaits dissolution. At an earlier hearing on Jan. 12, 2010, Styles & Wood Limited, of Manchester Road, Altrincham, Cheshire, pleaded guilty to contravening sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974. These charges relate to offenses committed between April 24, 2006 and Nov. 13, 2006 at the Marks and Spencer plc store on Broad Street, Reading. At the sentencing that took place at Bournemouth Crown Court on Sept. 27, 2011, Styles & Wood Limited was fined GBP100,000 and ordered to pay costs of GBP40,000. ASBESTOS UPDATE: CSX Lawyer Seeks to Reverse Second-Hand Ruling --------------------------------------------------------------- On Sept. 20, 2011, Andrew Tauber, Esq., an attorney for CSX Transportation, called on justices of the Illinois Supreme Court to reverse Fifth District appellate judges who approved second- hand asbestos claims, The Madison/St. Clair Record reports. According to Mr. Tauber, six of eight state supreme courts have rejected claims of second-hand asbestos exposure. Mr. Tauber said Second District and Fourth District judges ruled that defendants who used asbestos owed no duty to protect third parties. He said second hand claims would impose a significant burden of litigation. He added they would increase pressure on solvent defendants to settle claims without merit. He said second hand claims would separate liability from culpability. Plaintiff Cynthia Simpkins claims mother Dorothy Simpkins died from inhaling asbestos fibers her husband brought home from his job about 60 years ago. Ms. Simpkins' lawyer at the Supreme Court, Timothy Eaton, Esq., of Chicago, told the Justices the railroad should not have released fibers from its premises. He said the railroad owed a duty to protect anyone that might come into contact with a hazardous substance. Ted Gianaris, Esq., of John Simmons's firm in East Alton, and John Cooney, Esq., of Chicago also represent Ms. Simpkins. Her mother sued 73 defendants in 2007, including CSX as successor to Baltimore & Ohio. Her mother claimed her former husband carried fibers home prior to their divorce in 1964. She died soon after suing, and Ms. Simpkins took charge of the suit. Circuit Judge Daniel Stack dismissed it, finding no relationship between the railroad and the spouse that imposed a duty on the railroad. Fifth District judges reversed Judge Stack, finding employers owed a duty to protect families. They limited the ruling to families but did not rule out expanding it in an appropriate case. CSX appealed to the Supreme Court, claiming it faced liability without limit. ASBESTOS UPDATE: Bucknall Joiner's Death Due to Hazard Exposure --------------------------------------------------------------- An inquest was told that the death of 74-year-old Donald Roberts, a retired joiner from Bucknall, Staffordshire, England, was due to workplace exposure to asbestos, The Sentinel reports. Mr. Roberts was suffering from mesothelioma when he was found dead at the home he shared with his wife, Margaret, on Nov. 21, 2011. The inquest heard that Mr. Roberts was diagnosed with the cancer, which affects the chest, after developing a severe cough in 2008 which had steadily got worse. Mrs. Roberts told the inquest that Mr. Roberts had worked as a joiner until the age of 73 and had talked about using huge sheets of asbestos during the 1950s. Margaret Jones, assistant deputy coroner for North Staffordshire, recorded a verdict that Mr. Roberts had died as a result of an industrial disease. ASBESTOS UPDATE: N.Y. Court Recalls, Vacates Ruling in Penn. Case ----------------------------------------------------------------- The Supreme Court, Appellate Division, First Department, New York, recalled its decision and vacated it in a case involving asbestos styled Josephine Penn, et al., Plaintiffs-Appellants v. Amchem Products, et al., Defendants, Kerr Corporation, Defendant- Respondent. Judges Saxe, Friedman, Moskowitz, and Abdus-Salaam entered judgment in the case on June 9, 2011. Weitz & Luxenberg, P.C., New York (Alani Golanski, Esq., of counsel), represented appellants. Marin Goodman LLP, New York (Diane H. Miller, Esq., of counsel), and Pillsbury Winthrop Shaw Pittman LLP, New York (E. Leo Milonas, Esq., of counsel), represented respondent. In a Supreme Court, New York County, order entered on June 1, 2009, which granted Kerr Corporation's post-trial motion insofar as it sought to set aside the verdict and have judgment entered in its favor as a matter of law, and sub silentio denied the motion as academic, insofar as it alternatively sought a remittitur, unanimously reversed, on the law, without costs, the jury's verdict on liability reinstated as against Kerr, and the matter remanded for a new trial solely on the issue of damages for past and future pain and suffering and loss of consortium, unless plaintiffs, within 30 days of service of a copy of this order with notice of entry, stipulate to reduce the award for past pain and suffering from US$3,650,000 to US$1,500,000, future pain and suffering from US$10,900,000 to US$2,000,000, and the award for loss of consortium from US$1,670,000 to US$260,000, and to entry of a judgment in accordance therewith. Contrary to the trial court's finding, the evidence, viewed in the light most favorable to the prevailing plaintiffs was sufficient to permit the jury to rationally conclude that the asbestos- containing dental liners to which the injured Josephine Penn was exposed were distributed by Kerr. The Decision and Order of the Court entered on May 11, 2010, was recalled and vacated. ASBESTOS UPDATE: Partial Summary Judgment OK'd in Bowser Action --------------------------------------------------------------- The Superior Court of Delaware, New Castle County, granted in part and denied in part, Parker-Hannifin Corporation's motion for summary judgment in an asbestos case filed by Gerald Bowser. Judge Peggy L. Ableman entered judgment in Civil Action No. N10C- 05-104 ASB on June 3, 2011. Mr. Bowser worked as an aircraft mechanic for several decades, beginning in the early 1960s. In 2009, he was diagnosed with mesothelioma, which led to his death in December 2010. His wife, Jenny Bowser, alleged that the defendants in this case each manufactured, distributed, sold, or installed asbestos-containing products that caused Mr. Bowser's mesothelioma. Mrs. Bowser's claims against Parker related to Mr. Bowser's alleged exposures to asbestos-containing aircraft brakes distributed under the brand name Cleveland Wheel & Brakes. Cleveland brakes were produced by a predecessor to Parker. Mr. Bowser, who was deposed prior to his death, testified to using Cleveland brakes or seeing Cleveland brake boxes during his employment at three different locations. From 1965 to 1967, he worked on a fleet of three helicopters at Doan Helicopter in Daytona Beach, Fla. Mr. Bowser next worked as an aviation mechanic at the Shelby, N.C., airport from 1967 to 1973, where he recalled removing and installing four different brands of asbestos-containing airplane brakes: Cleveland, Bendix, Goodyear, and Goodrich. Parker's motion for summary judgment was granted in part as to Count III of the Complaint and Mrs. Bowser's allegations that Mr. Bowser was exposed to asbestos from Cleveland helicopter brakes between 1961 and 1967, and denied in part as to Mrs. Bowser's remaining claims. ASBESTOS UPDATE: N.C. Court Reverses Decision in Johnson Lawsuit ---------------------------------------------------------------- The Court of Appeals of North Carolina reversed the ruling of the North Carolina Industrial Commission in a lawsuit involving asbestos styled Edith L. Johnson, Widow and Sole Dependent of Russell L. Johnson, Deceased Employee, Plaintiff v. Covil Corporation, Employer, St. Paul Travelers/USF & G and/or S.C. Property & Casualty Insurance Guaranty Association and/or Northern Insurance Co. of New York and/or Penn National Insurance Co. and/or Travelers Casualty & Surety/Aetna Casualty, Carriers, Defendants. Judges McCullough, Hunter and Bryant entered judgment in Case No. COA10-1440 on June 7, 2011. Edith L. Johnson, dependent and representative of the Estate of Russell Lee Johnson, appealed from the Full Commission's denial of her Motion to Amend or Reconsider the Opinion and Award dated May 26, 2010. Mr. Johnson worked for Covil Corporation in various capacities from 1957 to 1987. Covil was an insulation company that used asbestos on many of its sites. Mr. Johnson began his career as an insulator, installing and removing asbestos insulation, and gradually moved up from foreman to President of Covil. In 1987, Mr. Johnson retired from Covil and in 1989 he served as Chief Executive Officer of an insulation company started by his son-in-law. As CEO of his son-in-law's company, he served as a figurehead without receiving any compensation. In late 2005, Mr. Johnson began experiencing abdominal pain. The following February, he was diagnosed with cancer of the peritoneum membrane, which forms the lining of the abdominal cavity. Biopsies were taken, indicating that it was peritoneal mesothelioma. On June 5, 2006, Mr. Johnson filed a claim for benefits with the Industrial Commission based on asbestos exposure, pleural disease, and mesothelioma. He suddenly died the next day as a result of mesothelioma, lung fibrosis, and septic shock. On Oct. 3, 2006, Mrs. Johnson filed an amended form with the Industrial Commission seeking death benefits. The Commission determined that Mr. Johnson's death was the result of his occupational exposure to asbestos and awarded benefits to Mrs. Johnson. The Commission found that Mr. Johnson had average weekly wages of US$807.69 in 1987, his last full year of employment. Based on the use of 1987 in determining his average weekly wages, the Commission used the maximum compensation rate for 1987 of US$308.00 to award Mrs. Johnson 400 weeks of death benefits at US$308.00 per week. Mrs. Johnson filed a Motion to Amend or Reconsider the Order based on the maximum compensation rate of US$308.00. The Commission denied the Motion and Mrs. Johnson appealed. The Appeals Court remanded the case to the Industrial Commission for more specific findings as to why the first method of section 97-2(5) would be unjust and to recalculate Mrs. Johnson's compensation. The matter was reversed and remanded. Wallace and Graham, P.A., by Edward L. Pauley, Esq., represented appellant. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Mathew E. Flatow, Esq., and M. Duane Jones, Esq., represented appellees. ASBESTOS UPDATE: N.Y. Supreme Court Junks Appeal in Klas Lawsuit ---------------------------------------------------------------- The Supreme Court, Appellate Division, Fourth Department, New York, dismissed an appeal in an asbestos case filed by Kevin Klas, on behalf of Norman William Klas. Judges Centra, Fahey, Carni, Sconiers, and Green entered judgment in Case No. 11-00108 on June 10, 2011. This was an appeal from an order of the Supreme Court, Erie County (John P. Lane, J.H.O.), entered Oct. 19, 2010. The order denied the motion of defendant Crane Co. for summary judgment. Upon the stipulation of discontinuance signed by the attorneys for the parties on Feb. 16, 2011, and filed in the Erie County Clerk's Office on March 28, 2011, it was ordered that said appeal was dismissed without costs upon stipulation. ASBESTOS UPDATE: Defendants' Dismissal Bid OK'd in White's Claim ---------------------------------------------------------------- The U.S. District Court, Middle District of Pennsylvania, granted the defendants' motion to dismiss an asbestos lawsuit filed by Vernon White. The case is styled Vernon White, Plaintiff v. B.A. Bledsoe, et al., Defendants. Judge Yvette Kane entered judgment in Civil Action No. 1:CV-10- 0146 on June 8, 2011. This civil rights action was filed by Mr. White, at the time an inmate confined at the U.S. Penitentiary at Lewisburg (USP- Lewisburg), Pa. The matter proceeded on an amended complaint filed on May 10, 2010. Defendants were four employees of the Federal Bureau of Prisons (BOP). Three of the Defendants are employees at USP-Lewisburg: B.A. Bledsoe, Warden; L. Karpen, Chief Psychologist; and R. Hicks, Safety Administrator. The fourth Defendant appeared to be Harrell Watts, National Inmate Appeals Administrator. Pending was Defendants' motion to dismiss or, in the alternative, for summary judgment. The motion was deemed unopposed and was granted. Mr. White alleged that on Aug. 10, 2009, he filed an appeal with respect to his placement in the Special Management Unit (SMU) Program at USP-Lewisburg. On or about Sept. 16, 2009, he received notification that an extension if time was granted to the prison officials with respect to the time limitation on responding to his appeal. He maintained that the grant of such extension was a denial of his right to due process. Mr. White stated that he only expected to be in the SMU under a year, but claimed that his personal property is limited to six family photos and 10 letters, and argued that he was only permitted 60 minutes a month on the phone. He also claimed that he was subjected to roaches for a five month period beginning on Aug. 10, 2009 when he arrived at USP-Lewisburg, and also experienced a mouse in his mattress. Although he stated he was moved to a different block at the end of January 2010, Mr. White believed it contains asbestos. He claimed that Defendants Hicks and Bledsoe knew of these conditions and therefore were deliberately indifferent to his health and safety in violation of the Eighth Amendment. On May 12, 2010, the Court issued an order directing service of the amended complaint upon the Defendants. Following the grant of an extension of time, Defendants filed the pending motion to dismiss or, in the alternative, for summary judgment on Sept. 10, 2010. On Sept. 23, 2010, a brief, statement of material facts and exhibits in support of the motion were submitted. Following Mr. White's failure to respond to the motion, or request an enlargement of time within which to do so, the Court issued an order on Oct. 15, 2010, directing him to file his opposition to Defendants' motion within 14 days. Mr. White was warned that his failure to do so may result in the motion being deemed unopposed or the case being dismissed for failure to prosecute. At the time, Mr. White was still confined at USP-Lewisburg. Despite the Court's order, Mr. White failed to file his opposition brief or seek an enlargement of time within which to do so. In fact, the last time the Court received contact from Mr. White was on May 10, 2010, when he filed his amended complaint in this action. ASBESTOS UPDATE: Court Accepts KOADI Application to Dismiss Hall ---------------------------------------------------------------- The U.S. District Court, Western District of New York, granted the application of the Kodak Occupational Accidental Death Insurance Plan (KOADI) and other defendants to dismiss an asbestos case involving Peggy A. Hall. This is an action brought under ERISA, to recover benefits under two employee welfare plans. The case is styled Peggy A. Hall, Plaintiff v. Kodak Occupational Accidental Death Insurance Plan, et al., Defendants. District Judge Charles J. Siragusa entered judgment in Case No. 08-CV-6402 CJS on June 8, 2011. Peggy A. Hall is the widow of William D. Hall, who was employed by Eastman Kodak from 1968 until he retired in May 1992. On Feb. 20, 2006, almost 14 years after his retirement, Mr. Hall died of malignant mesothelioma, caused by his exposure to asbestos while he was employed at Eastman Kodak. Mrs. Hall subsequently applied for benefits under two Kodak employee welfare benefit plans: the Kodak Occupational Accidental Death Insurance Plan -- "KOADI" or "the Accidental Death Plan -- and the Kodak Medical Assistance Plan -- "KMA" or "the Medical Assistance Plan". With regard to the KMA plan, Mrs. Hall applied for benefits under the provision concerning "SE7/Survivors." The Defendants filed the subject motion to dismiss the Complaint on the following grounds: 1) Mrs. Hall did not timely exhaust her administrative remedies; 2) Mrs. Hall did not timely commence this lawsuit under the terms of the plans; 3) Mr. Hall was not an employee at the time of his death; 4) Mr. Hall's death was caused by disease, not accidental injury; and 5) Mr. Hall's death occurred more than one year after his injury. On May 24, 2001, counsel for the parties appeared for oral argument. ASBESTOS UPDATE: Appeal Court Affirms Ruling in Heckerman Action ---------------------------------------------------------------- The Supreme Court, Appellate Division, Third Department, New York, affirmed the Dec. 16, 2009 ruling of the Workers' Compensation Board, which ruled that Bernard Heckerman sustained a work-related accident. The case is styled In the Matter of the Claim of Bernard Heckerman, Respondent v. Daimler Chrysler Corporation, Appellant. Workers' Compensation Board, Respondent. Judges Rose, Peters, Lahtinen, Malone Jr., and Garry entered judgment in the case on May 12, 2011. Mr. Heckerman worked for many years in an area of the employer's plant where overhead pipes were wrapped in asbestos insulation. In 2002, he was diagnosed with an asbestos-related lung disease and he filed a claim, which the employer contested. A Workers' Compensation Law Judge disallowed the claim in 2007, finding that Mr. Heckerman failed to prove an occupational disease. The Workers' Compensation Board directed that he be examined by an impartial pulmonary specialist and, after receiving the specialist's reports, the Board determined that Mr. Heckerman's asbestos-related lung condition was causally related to his employment and established the case for an occupational disease. The Board thereafter amended its decision changing the finding of occupational disease to accidental injury, with an Aug. 2, 2002 accident date. The employer appealed. ASBESTOS UPDATE: Ga. Appeals Court Affirms Rulings in Butler Case ----------------------------------------------------------------- The Court of Appeals of Georgia affirmed rulings in a case involving asbestos filed by the family of Walter Butler against Union Carbide Corporation. Judge Mikell entered judgment in Case No. A11A0481 on June 15, 2011. This is a toxic tort case involving product liability, negligence, and loss of consortium claims maintained by Laura Butler, individually and as administratrix of the estate of her late husband, Walter Butler, against Union Carbide and 16 other companies. The complaint alleged that Mr. Butler developed malignant mesothelioma due to his occupational exposure to products containing asbestos manufactured or sold by the defendants. The complaint was filed by Walter and Laura Butler in February 2008. Mr. Butler died six months later, and Mrs. Butler was substituted as plaintiff. Union Carbide is the sole remaining defendant. Before he died, Mr. Butler retained Dr. John C. Maddox, a pathologist, as his expert on specific causation; that is, whether asbestos from a Union Carbide product contributed to causing Mr. Butler's mesothelioma. Dr. Maddox deposed that each exposure to asbestos above "background" levels, or those present in ambient air, contributed to causing the disease. A since-dismissed defendant, Reichhold, Inc., moved to strike Dr. Maddox's testimony, and Union Carbide joined the motion. After holding a hearing, the trial court issued an extensively researched order granting Union Carbide's motion. The trial court issued a separate order granting summary judgment to Union Carbide. Mrs. Butler appealed these orders. The Appeals Court affirmed. ASBESTOS UPDATE: La. Court Vacates Ruling, Remands Buorque Claim ---------------------------------------------------------------- The Court of Appeals of Louisiana, Fifth Circuit, vacated the ruling of the Twenty-Ninth Judicial District Court Parish of St. Charles, State of Louisiana, which granted a motion to enforce a settlement agreement urged by American Cyanamid Co., in a case involving asbestos filed by Ellis J. Bourque, Jr. and Marianne Judice. The matter was remanded to the district court for further proceedings. The case is styled Ellis J. Bourque, Sr., et al v. Peter Kewit Son's Company, et al. Judges Hillary J. Crain, Marion F. Edwards, and Walter J. Rothschild entered judgment in Case No. 11-CA-11 on June 14, 2011. Ellis Bourque, Sr. worked for a number of employers over the course of his life. He was diagnosed with asbestosis later in life. In 1995 he and his wife, Opal Grace Bourque, sued a number of his prior employers alleging that exposure to asbestos while in their employ had caused his condition. Upon his death in 1997, Ellis Bourque, Sr.'s wife Opal and Marianne Judice and Ellis Bourque, Jr., his two natural children with another woman, asserted wrongful death and survival action claims by way of an amended petition. Opal died in 2008. On July 23, 2010, American Cyanamid Co., one of the defendants, filed a motion to continue a Sept. 20, 2010, trial date on grounds that Michael Fisher and Wesley Swisher, two children of Opal from another union, had to be notified of the pending trial and given an opportunity to respond. Counsel for plaintiffs represented that at an Aug. 19, 2010 hearing on this motion, the trial judge ordered one of the defendants to notify Fisher and Swisher of their potential claims. Fisher and Swisher substituted themselves as plaintiffs for their mother, Opal, on Aug. 30, 2010. On July 26, 2010, prior to Fisher and Swisher joining the suit, mediation was held among counsel for the plaintiffs and only some of the numerous defendants. They further represented that a settlement figure of US$300,000 was agreed to by plaintiffs and five of the defendants, but that no writing was produced or signed at that time. No evidence as to any other details of this agreement appears in the record. The documentary evidence presented at the hearing on the motion to enforce the settlement showed that although a settlement document reciting a settlement figure of US$200,000 was confected and sent to the plaintiffs, it was never signed by them. Neither was it signed by any of the defendants. It was also shown that a US$50,000 check from one of the defendants, Peter Kiewit & Sons, was received and deposited in plaintiffs' counsels' trust account. It was further represented by plaintiffs' counsel that the funds were returned to the defendant that had sent the check. When plaintiffs refused to sign the agreement, American Cyanamid urged the present motion to enforce the settlement. After a hearing, the trial judge issued a judgment granting the motion. This appeal followed. ASBESTOS UPDATE: U.S. Congress Holds Hearing over Payout Fraud -------------------------------------------------------------- A House Judiciary Committee of the United States Congress on Sept. 9, 2011, heard testimony on alleged fraud and abuse in the asbestos compensation system, The Wall Street Journal reports. The committee reviewed transparency issues in asbestos trusts, which are massive pools of money set up by companies in bankruptcy to pay off asbestos claims. Defense attorneys have long claimed that plaintiffs double dip and get inflated payouts by filing multiple asbestos claims, both in court and with asbestos trusts, for the same injury. Since settlements are secret and the trusts are not required to make public their payouts, it is difficult to verify whether claimants are getting overpaid. In a written statement, Charles Siegel, Esq., a partner at the Dallas plaintiffs' firm Waters & Kraus LLP, disputes that point, saying, "there is no windfall of money available to mesothelioma claimants, and plaintiffs cannot and do not 'game the system' such that solvent tort defendants pay the liability shares of bankrupt companies." Reuters points out that complaints about asbestos litigation have been mounting for years on the Hill yet lawmakers never passed any kind of reform bill. It remains to be seen what the outcome will be of today?s hearings. For now the asbestos litigation train is ongoing. ASBESTOS UPDATE: Montgomery Action v. 92 Firms Filed in Kanawha --------------------------------------------------------------- Edward Lewis Montgomery and Callie Ilene Montgomery, of Dublin, Va., on Sept. 6, 2011, filed an asbestos lawsuit against 92 defendant corporations in Kanawha Circuit Court, W.Va., The West Virginia Record reports. According to the complaint, Mr. Montgomery was diagnosed with lung cancer. He claims he was exposed to asbestos and/or asbestos containing materials during his career as a machine operator, laborer and insulator. According to the suit, the defendants were negligent in failing to protect Mr. Montgomery from the asbestos and/or asbestos containing products during his employment from 1952 until 2005. The Montgomerys seek a jury trial to resolve all issues involved. They are being represented by Victoria Antion, Esq., Scott A. McGee, Esq., and Bronwyn I. Rinehart, Esq. Kanawha Circuit Court Case No. 11-C-1534 has been assigned to a visiting judge. ASBESTOS UPDATE: Hirsch Case v. 41 Firms Filed in St. Clair Co. --------------------------------------------------------------- Craig Hirsch, on Sept. 12, 2011, filed an asbestos lawsuit against 41 defendant corporations in St. Clair County Circuit Court, Ill., The Madison/St. Clair Record reports. Mr. Hirsch's case is St. Clair County Circuit Court Case No. 11-L-511. Mr. Hirsch is represented by Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville. Erik Karst, Esq., J. Kyle Beale, Esq., and Matthew T. Wright, Esq., of Karst and von Oiste in Houston are of counsel. Mr. Hirsch worked as a boiler tender for the U.S. Navy at the Chicago Training Center in Chicago from 1960 until 1962, as an operator at Ford Motor Co. from 1964 until 1966, as a repairman and operator at Ford Motor Co. from 1964 until 1966, as a repairman and operator at Detroit Diesel in Michigan from 1965 until 1983 and as a pipefitter for Consumers Power in Michigan in 1969, according to the complaint. In his five-count complaint, Mr. Hirsch seeks a judgment of more than US$50,000, plus punitive and exemplary damages of more than US$150,000 and compensatory damages of more than US$50,000. ASBESTOS UPDATE: Wolff's Widow Awarded GBP258T in Compensation -------------------------------------------------------------- Elizabeth Wolff, the 69-year-old widow of William Wolff, was awarded GBP258,520 in asbestos-related compensation, BBC News reports. Mrs. Wolff, of East Ayrshire, Scotland, raised the action for damages after Mr. Wolff died at the age of 66 from mesothelioma in March 2007. His former employer, Weir Construction Ltd, accepted that the condition was caused by negligent exposure to asbestos during his work with them. Judge Lord Doherty set the compensation at the Court of Session in Edinburgh. The court heard how the couple planned to spend time together exploring Scotland and taking a trip to Australia. About a year after he retired, Mr. Wolff was diagnosed with mesothelioma and was told he had less than a year to live. He died seven months later. The court was told that Mrs. Wolff had retired from her job as a social worker at a hospital to care for her terminally ill husband. Following his death, she and other family members raised an action for damages against his former employer. Weir Construction Ltd accepted liability but it was left to Lord Doherty to assess the level of compensation that should be paid to Mrs. Wolff and family members. Following expert medical evidence, Lord Doherty said he proceeded on the basis that, but for the condition, Mr. Wolff could have expected to live for another 17 years. Mrs. Wolff sued both as an individual and as executor following the death of her husband. The judge granted her a total award of GBP258,520, including GBP65,000 for the suffering of Mr. Wolff. The judge also awarded damages to the couple's three daughters totaling GBP52,317. The couple's granddaughter was awarded GBP7,084. ASBESTOS UPDATE: Hoggett's Family Awarded GBP49T in Compensation ---------------------------------------------------------------- Joseph Nadin Ltd paid out GBP49,000 in asbestos-related damages to the family of Ken Hoggett who died of mesothelioma, The Star reports. Mr. Hoggett, a scaffolder and former D-Day veteran, worked at the Ferrybridge power station when three cooling towers collapsed in 100 mph winds in 1965. He had cleared up in clouds of dust at the site, inhaling asbestos fibers, which caused mesothelioma. Barely two weeks after diagnosis, Mr. Hoggett died. Joseph Nadin has paid out the damages to the family after admitting a breach of duty care. ASBESTOS UPDATE: Cumbrian Scientist's Death Related to Exposure --------------------------------------------------------------- An inquest heard that the death of 77-year-old Francis Graham Brightman, a former nuclear physicist from St Bees, Cumbria, England, was related to workplace exposure to asbestos, News & Star reports. Mr. Brightman died at his home in November 2010. A post mortem concluded that he died as a result of bronco-pneumonia caused by malignant mesothelioma. He was diagnosed in 2008. In a statement from the late Mr. Brightman, he said he worked as a nuclear physicist from 1954 until 1990 at Windscale and Ayrshire. He started work at Windscale in 1954 as a research and development worker. In 1956, he was elected a graduate by the UKAEA. He worked in Cumbria until 1974 before moving to Ayrshire for five years. He returned to Windscale in 1979 until he retired in 1990. The inquest heard that during this time, Mr. Brightman was exposed to asbestos while he walked from his place of work through the turbines halls at the Windscales site. In the statement, Mr. Brightman also said he was exposed to asbestos while he worked at the UKAEA site in Scotland. West Cumbria coroner David Roberts said, "I accept Mr. Brightman's statement which says he would have been working in areas where asbestos was used. I find that the development of malignant mesothelioma was caused by asbestos." ASBESTOS UPDATE: Hawksley Worker's Family Awarded GBP92T Payout --------------------------------------------------------------- The family of William Evans, a former AW Hawksley Ltd worker from Cheltenham, England, has been awarded GBP92,000 in asbestos- related compensation, BBC News reports. Mr. Evans died from mesothelioma earlier in 2011. He worked for AW Hawksley Ltd, a subsidiary of BAE Systems Pensions Funds Investment Management, in Gloucester between 1947 and 1950. His job involved drilling into asbestos sheets used in pre-fabricated houses. Mr. Evans' family sued BAE Systems and the firm accepted liability, making the settlement to his two adult children. The company admitted they had wrongly exposed Mr. Evans to asbestos. Mr. Evans had been given no warnings or protective clothing and wore ordinary cotton overalls, which he took home to wash. ASBESTOS UPDATE: NSW Police Union Calls for More Health Checks -------------------------------------------------------------- The New South Wales Police Association is calling for more health checks, after revelations an officer from Broken Hill, New South Wales, Australia, has asbestos-related disease, ABC News reports. Matt Thompson, the union's western region organizer says within the Barrier command there are 38 asbestos affected police premises. He says Detective Senior Constable Rick Liston was diagnosed with asbestos-related disease in his lungs two years ago. He says the Government should pledge AUD100 million to safeguard properties and test police officers and their families. Mr. Thompson says with more than 330 asbestos affected houses in the western region, testing should be made available to every police officer and their family. ASBESTOS UPDATE: Claims v. GenCorp Inc. Rise to 143 at Aug. 31 -------------------------------------------------------------- GenCorp Inc. faced 143 pending asbestos cases as of Aug. 31, 2011, compared with 141 cases as of Nov. 30, 2011, according to the Company's quarterly report filed on Sept. 30, 2011 with the U.S. Securities and Exchange Commission. The Company faced 138 pending asbestos-related claims as of May 31, 2011. (Class Action Reporter, July 15, 2011) The Company has been, and continues to be, named as a defendant in lawsuits alleging personal injury or death due to exposure to asbestos in building materials, products, or in manufacturing operations. Most of the cases are pending in Texas and Pennsylvania. From Nov. 30, 2010 to Aug. 31, 2011, the Company recorded 19 claims filed, 14 claims dismissed, and three claims pending. Aggregate settlement costs were US$70,000 and average settlement costs were US$23,000. Legal and administrative fees for the asbestos cases for the first nine months of fiscal 2011 were US$300,000. Rancho Cordova, Calif.-based GenCorp Inc. is a manufacturer of aerospace and defense products and systems with a real estate segment that includes activities related to the re-zoning, entitlement, sale, and leasing of the Company's excess real estate assets. ASBESTOS UPDATE: Court Affirms Board Ruling in Castelli Lawsuit --------------------------------------------------------------- The Supreme Court, Appellate Division, Third Department, New York, affirmed the Jan. 15, 2010 ruling of the Workers' Compensation Board, which ruled that the employer and its workers' compensation carrier were not entitled to reimbursement from the Special Disability Fund. The case is styled In the Matter of the Claim of Nicholas Castelli, Claimant v. NRG et al., Appellants, and Special Disability Fund, Respondent. Workers' Compensation Board, Respondent. Judges Spain, Lahtinen, Kavanagh, McCarthy and Garry entered judgment in Case No. 510943 on June 16, 2011. After exposure to asbestos and other lung irritants in the course of his employment as a gas turbine supervisor, Nicholas Castelli developed asbestosis and chronic obstructive pulmonary disease. His ensuing claim for workers' compensation benefits was established, with the Board determining that his date of disablement was Nov. 13, 2008. The employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) then sought reimbursement for those benefits from the Special Disability Fund. The Board denied the employer's application on the basis that amendments to Workers' Compensation Law closed the Fund to claims with a date of disablement after July 1, 2007. The employer appealed and the Supreme Court affirmed. ASBESTOS UPDATE: Georgia-Pacific Summary Judgment OK'd in Foucha ---------------------------------------------------------------- The Superior Court of Delaware, New Castle County, granted Georgia-Pacific, LLC's motion for summary judgment in an asbestos case filed by Raymond Foucha. Judge Peggy L. Ableman entered judgment in Civil Action No. N10C- 05-042 ASB on June 3, 2011. Mr. Foucha was diagnosed with mesothelioma in February 2010. As a result, he and his wife, Sussanah Foucha, had sued various defendants in this action, claiming that they are responsible for exposing Mr. Foucha to asbestos from their products and thereby causing his mesothelioma. The Fouchas' claims against Georgia-Pacific related to non- occupational home renovation projects on which Mr. Foucha assisted his father in the 1960s and 1970s. During his deposition, Mr. Foucha remembered a wide variety of home renovation projects in his life, but recalled only three in which he worked on or around joint compound: (1) conversion of a garage into living space at his Richland Road family home in the mid-1960s; (2) construction of the family's St. Tammany Parish Camp cabin in the early to mid-1960s; and (3) replacement of drywall in the bathroom at his Cherrywood Street home in the 1990s. Georgia-Pacific did not begin manufacturing joint compound until it purchased Bestwall Gypsum Co. and their product lines in 1965. From 1965 until 1973, Georgia-Pacific joint compounds contained some asbestos, but by May 1977, Georgia-Pacific did not produce, manufacture, or distribute any asbestos-containing products. Georgia-Pacific had moved for summary judgment on the basis that the Fouchas cannot establish exposure to any asbestos-containing Georgia-Pacific products. In response, the Fouchas urged that Mr. Foucha identified Georgia- Pacific as a manufacturer of joint compound that exposed him to asbestos and further argue that they have "come forward with more than sufficient evidence of exposure to asbestos-containing products to defeat summary judgment." Since the Fouchas' evidence did not support a conclusion that Mr. Foucha was exposed to asbestos from Georgia-Pacific's products without speculation, it followed that the Fouchas cannot meet the Louisiana substantial factor causation standard. Accordingly, Georgia-Pacific's motion for summary judgment was granted. ASBESTOS UPDATE: Appeals Court Affirms Ruling in Phillips Action ---------------------------------------------------------------- The U.S. Court of Appeals, Seventh Circuit, affirmed the ruling of the U.S. District Court for the Eastern District of Wisconsin, which sentenced Michael Phillips to 18 months of imprisonment, three years of supervised release, US$12,765 in restitution, and a US$100 special assessment fee. Mr. Phillips pleaded guilty to removing and disposing of asbestos. The case is styled United States of America, Plaintiff-Appellee v. Michael Phillips, Defendant-Appellant. Judges Bauer, Posner and William entered judgment in Case No. 10-2438 on June 17, 2011. Mr. Phillips owned and managed an apartment building in New London, Wis. In 2007, he hired Jeff DeCareau to remove asbestos insulation and renovate the building's heating system. Mr. DeCareau had no experience, training, or expertise in asbestos removal, but Mr. Phillips hired him because his rates were "really cheap." Mr. Phillips also hired two tenants, Sandy Kurth and Molly Dumas, who agreed to assist Mr. DeCareau in exchange for a reduction in rent. Mr. DeCareau, Kurth, and Dumas removed the asbestos insulation with a Sawzall, an electronic hand-held saw with a large oscillating blade. Although the use of the Sawzall created a great deal of asbestos dust and debris, the workers did not wear face masks or protective clothing. They also did not wet the insulation before cutting it, confine the dust and debris to a limited area, or store the asbestos insulation in sealed containers. In fact, they kept the asbestos insulation in a vacant apartment and the piping (which was also covered in asbestos) in a common hallway and a shared garage. A professional trained in asbestos removal would have done none of the above. When the Department of Natural Resources and the Environmental Protective Agency were alerted to this project, they inspected the building and determined that the air was heavily laden with asbestos fibers. Both agencies agreed that no person could safely live in the building, and all tenants were ordered to move out. Mr. Phillips was involved throughout the entire renovation project. He visited the building almost daily, helped remove piping and asbestos insulation, and knew that the Sawzall created a large quantity of asbestos dust and debris. While he denied knowing that asbestos is harmful, much of the evidence is to the contrary. Allen M. Brabender, Esq., Department of Justice, Washington, D.C., represented the United States of America. Brian P. Mullins, Esq., Brian T. Fahl, Esq., Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, represented Mr. Phillips. ********* 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. Agravante, Julie Anne Lopez, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2011. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *