/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/111223.mbx C L A S S A C T I O N R E P O R T E R Friday, December 23, 2011, Vol. 13, No. 254 Headlines BARNES & NOBLE: Date to Seek Dismissal of eBooks Suit Extended BARNES & NOBLE: Final Hearing on "Minor" Suit Deal on March 1 BARNES & NOBLE: "Strugala" Suit Remains Pending in New York CAREONE: Public Citizen Opposes Class Action Settlement CASEY'S GENERAL STORES: Still Defends "Hot Fuel" Class Suits CITIBANK INC: Sued in Calif. Over Collection of Overdraft Fees CPI INTERNATIONAL: Awaits Final Okay of Merger-Related Suit Deal CREIG NORTHROP: Faces Class Action Over Mortgage Fraud DE BEERS: Court Affirms 2006 Antitrust Class Action Settlement FINISAR CORP: Appeal From Securities Suit Dismissal Pending FINISAR CORP: Defends Suit Over March 8 Earnings Announcement GENESCO INC: Defends Calif. Labor Code-Violation Suit vs. Unit GENESCO INC: Settles Two Song-Beverly Act Violation Suits LOUISIANA CITIZENS: Court Reinstates $92.8-Mil. Claims Judgment MERICLE CONSTRUCTION: Juveniles to Get Portion of Settlement MYSPACE: Confirms Request for SEC Racketeering Violation Probe NATURALIZER: Recalls 6,800 Women's Dress Shoes Due to Fall Hazard O'FALLON: Faces Class Action Over Excessive Towing Fees OPFM CORP: Couple Ordered to Pay Restitution in Class Action PACIFIC SUNWEAR: Awaits Ruling in Coordinated Wage and Hour Suit PAMPERED CHEF: Recalls 20,000 Ice Cream Dippers RCMP: May Face Class Action Over Sexual Harassment SAIC INC: Facing Class Suits Over Loss of Computer Backup Tapes SHAKE-N-GO: Sued in N.Y. Over False Claims on Hair Extensions SMITH & WESSON: Appeal From Class Suit Dismissal Remains Pending SOUTHSTAR ENERGY: Settles Class Action Over Price Plans STUBHUB INC: Sued for Violating California Ticket Resale Law TALBOTS INC: Awaits Order on Bid to Dismiss "Washtenaw" Complaint TIVO INC: Appeal in Consolidated IPO Class Suit Remains Pending UNITED STATES: Immigration Detainees Get Class-Action Status USP LABS: Faces Class Action for Selling Adulterated Drugs WALGREEN CO: Faces Class Action Over Illegal Health Record Fees WAL-MART STORES: Defends New Gender Discrimination Suit in Texas WAL-MART STORES: Petition in "Braun/Hummel" Suit Remains Pending WAL-MART: Faces Class Action Over Unpaid Overtime Wages WARNER MUSIC: Digital Music Pricing Suit Remains Pending in N.Y. WESTPAC BANKING: To Defend Class Action Over Late Payment Fees WILL COUNTY: Sued Over Time-Consuming Security Lines ZALE CORP: Plaintiffs' Appeal in Consolidated Suit Pending Asbestos Litigation ASBESTOS UPDATE: Red Cross Will Decide on Chadha in January ASBESTOS UPDATE: Law Firm Reports Hike in Mesothelioma Cases ASBESTOS UPDATE: Ex-James Hardie Units Pay AU$300,000 to Ex-Worker ASBESTOS UPDATE: Judge Crowder to Return Campaign Donations ASBESTOS UPDATE: Judge Replaced After Receiving Contributions ASBESTOS UPDATE: Red Flagged Abatement Co. Violates Again ASBESTOS UPDATE: Mesothelioma Law Firm Sends Warning to Mechanics ASBESTOS UPDATE: Violations Listed in Central Bank Abatement ASBESTOS UPDATE: Pay-outs to Pleural Plaques Victims Restored ASBESTOS UPDATE: Namibia Capital's Water Supply Pipes Contaminated ASBESTOS UPDATE: Contaminants Raise Costs to Landmark Renovation ASBESTOS UPDATE: A.W. Chesterton et al. Facing Lawsuit ASBESTOS UPDATE: Legal Win Saves 20T Future Claims v James Hardie ASBESTOS UPDATE: Union Stages Protest Against UBS Contractor ASBESTOS UPDATE: EPA Found to Violate Own Rules to Save Money ASBESTOS UPDATE: Harper's Avid Support to Chrysotile Trade Noted ASBESTOS UPDATE: Sea-Land Service to Pay $1.45M to Former Crew ASBESTOS UPDATE: Affordable Hazards Gets Decorah School Project ASBESTOS UPDATE: East Providence School Project Waits Cash Release ASBESTOS UPDATE: England, Wales Snubs Pleural Plaques Payout Issue ASBESTOS UPDATE: Abatement, Renovation Affect School Opening Date ASBESTOS UPDATE: Madison Court Told to Reform Docket System ASBESTOS UPDATE: ADAO Announces 2012 Annual Conference Honorees ASBESTOS UPDATE: EPA Questions Use of "Wet Method" in Joplin Ops ASBESTOS UPDATE: Signs at Waterfront Apts Abatement Alarm Tenants ASBESTOS UPDATE: Children of Mesothelioma Victim Seek Justice ASBESTOS UPDATE: Employee Fined CA$1,000 Over Work Safety Protocol ASBESTOS UPDATE: Avondale Shipyards et al. Face Mesothelioma Suit ASBESTOS UPDATE: Modified Cold Virus Helps Fight Mesothelioma ASBESTOS UPDATE: High Level of HazMat Found at NYFD Lackawanna HQ ASBESTOS UPDATE: Garbage Tycoon Blames Violation to Bad Employees ASBESTOS UPDATE: Ex-Drax Power Station Crew Dies of Mesothelioma ASBESTOS UPDATE: Hazmat Find Delays Work At Paramount Blvd Bridge ASBESTOS UPDATE: Eternit Case to Close on EUR18 Million Settlement ASBESTOS UPDATE: "Wet" Demolition Method May Have Exposed Workers ASBESTOS UPDATE: Former Worker at SGIO Diagnosed with Mesothelioma ASBESTOS UPDATE: Coroner Passes Final Verdict On Misdiagnosed Man ASBESTOS UPDATE: Widow Calls Out to Husband's Former Co-Workers ASBESTOS UPDATE: Fiber Exposure of 16 Hours Could Be Fatal ASBESTOS UPDATE: Eagle Recycling Faces $600,000 Fine ASBESTOS UPDATE: Lawyers Slam ATRF Report on Steep Settlements ASBESTOS UPDATE: Children of Former Employee Sue Chevron USA ASBESTOS UPDATE: Historic Niagara and Contractor Co Plead Guilty ASBESTOS UPDATE: 3M, AO Smith Directed to Pay Document Costs ASBESTOS UPDATE: Ala. Ct. Says Suit Can Proceed Despite Bankruptcy ASBESTOS UPDATE: NY Ct. Directs Georgia-Pacific to Produce Docs ASBESTOS UPDATE: Dist. Ct. Allows Disclosure of Doctors' Reports ASBESTOS UPDATE: Del. Ct. Remands Suit for Award Determination ASBESTOS UPDATE: Cabot Reserves $11MM at Sept. 30 for Liabilities ASBESTOS UPDATE: JC Penney Estimates $27MM Liabilities at Oct. 29 ASBESTOS UPDATE: Met-Pro Has 137 Pending Cases at Dec. 8 ASBESTOS UPDATE: Mangis's Claims vs. Copart Voluntarily Dismissed ASBESTOS UPDATE: Harbinger Group Still Faces Exposure Suits ASBESTOS UPDATE: Rentech Estimates Liability at East Dubuque Site ASBESTOS UPDATE: 90 Cases vs. LaBour Pump Remain Open at Sept. 30 ASBESTOS UPDATE: American Locker Still Party to 39 Exposure Suits ASBESTOS UPDATE: Andrea Electronics Still Defends "Edwards" Suit ASBESTOS UPDATE: Colonial Unit Still Faces Asbestos-Related Suit ASBESTOS UPDATE: Discovery Ongoing in "Jansen" Suit vs. Chase ASBESTOS UPDATE: Exposure Suits vs. Kaanapali Land Still Pending ASBESTOS UPDATE: Imperial Industries Still Faces Exposure Suits ASBESTOS UPDATE: IntriCon Continues to Defend Exposure Suits ASBESTOS UPDATE: Katy Asked to Indemnify Sterling in 2,915 Suits ASBESTOS UPDATE: Katy Still Defends 11 Exposure Suits in Alabama ASBESTOS UPDATE: McJunkin Faces 989 Exposure Claims at Sept. 30 ASBESTOS UPDATE: Pacific Office Posts $600,000 ARO at Sept. 30 ASBESTOS UPDATE: Park-Ohio Continues to Defend 300 Exposure Suits ASBESTOS UPDATE: Personal Injury Suits vs. Global Power Pending ASBESTOS UPDATE: Rockwell Automation Still Defends Exposure Suits ASBESTOS UPDATE: "Scott" Suit vs. Chase Corp. Remains Inactive ASBESTOS UPDATE: Two Exposure Suits vs. Thermon Group Pending ASBESTOS UPDATE: WABTEC and Units Still Face Exposure Claims ASBESTOS UPDATE: Magnetek Continues to Pursue Dismissal of Suits ASBESTOS UPDATE: Tyco Int'l. Defends 4,500 Suits at Sept. 30 ASBESTOS UPDATE: Tyco Records $82MM Net Liability at Sept. 30 ASBESTOS UPDATE: ITT to Indemnify Xylem for Potential Claims ASBESTOS UPDATE: Maremont Pegs Pending & Future Claims at $73MM ASBESTOS UPDATE: Meritor's Pegs Rockwell-Related Claims at $19MM ASBESTOS UPDATE: Meritor's Appeal From $4.5MM Damages Pending ASBESTOS UPDATE: Ashland & Hercules Still Exposed to PI Suits ASBESTOS UPDATE: 11,700 Cases Pending v. Mallinckrodt at Sept. 30 ASBESTOS UPDATE: Rock-Tenn Still Asserts Asbestos Is Contained ASBESTOS UPDATE: Scotts Miracle-Gro Still Exposed to PI Suits ********* BARNES & NOBLE: Date to Seek Dismissal of eBooks Suit Extended -------------------------------------------------------------- Barnes & Noble, Inc.'s date to file a motion to dismiss a complaint alleging horizontal price fixing of eBooks has been extended until after a consolidated amended complaint is filed, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 29, 2011. On August 12, 2011, a purported class action complaint captioned Rhonda Burstein v. Hachette Book Group, Inc., et al., was filed against Hachette Book Group, Inc., Harper Collins Publishers, Inc., Macmillan Publishers, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., Random House, Inc., (collectively, the Publisher Defendants) and Apple, Inc., Amazon.Com, Inc., and Barnes & Noble, Inc. (collectively with the Publisher Defendants, the Defendants) in the United States District Court for the Southern District of New York on behalf of purchasers of eBooks of Publisher Defendants through Apple, Amazon, Barnes & Noble and other eBook retailers. The complaint generally alleges a horizontal price fixing and a vertical conspiracy among the Defendants to restrain trade in the consumer retail market of eBooks in the United States in violation of Section 1 of the Sherman Act, 15 U.S.C. Section 1 and Section 2 of the Sherman Act, 15 U.S.C. Section 2. The complaint generally seeks treble damages in an undetermined amount sustained pursuant to Section 4 of the Clayton Act 15 U.S.C. Section 15, costs and fees, and injunctive relief. Other complaints have been filed against the Publisher Defendants, Apple and/or Amazon that do not name the Company as a defendant resulting in a petition to the U.S. Judicial Panel on Multidistrict Litigation (MDL Panel) to coordinate these cases, including the Burstein action, and consolidate them for pretrial purposes in the Southern District of New York or the Northern District of California. The MDL Panel held a hearing on December 1, 2011. The Company's date to file a motion to dismiss the Complaint has been extended until after a consolidated amended complaint is filed in the jurisdiction chosen by the MDL Panel. The Company denies liability and intends to vigorously defend its interests. BARNES & NOBLE: Final Hearing on "Minor" Suit Deal on March 1 ------------------------------------------------------------- A hearing to consider final approval of a settlement of a lawsuit captioned Minor v. Barnes & Noble Booksellers, Inc. et al., is set for March 1, 2012, according to Barnes & Noble, Inc.'s December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 29, 2011. On May 1, 2009, a purported class action complaint captioned Minor v. Barnes & Noble Booksellers, Inc. et al., was filed against B&N Booksellers, Inc. (B&N Booksellers) in the Superior Court for the State of California alleging wage payments by instruments in a form that did not comply with the requirements of the California Labor Code, allegedly resulting in impermissible wage payment reductions and calling for imposition of statutory penalties. The complaint also alleges a violation of the California Labor Code's Private Attorneys General Act and seeks restitution of such allegedly unpaid wages under California's unfair competition law, and an injunction compelling compliance with the California Labor Code. The complaint alleges two subclasses of 500 and 200 employees, respectively (there may be overlap among the subclasses), but contains no allegations concerning the number of alleged violations or the amount of recovery sought on behalf of the purported class. On June 3, 2009, B&N Booksellers filed an answer denying all claims. Discovery concerning purported class member payroll checks and related information is ongoing. On August 19, 2010, B&N Booksellers filed a motion to dismiss the case for lack of a class representative when the named plaintiff advised she did not wish to continue to serve in that role. On October 15, 2010, the Court issued an order denying B&N Bookseller's motion to dismiss. The Court further ruled that Ms. Minor could not serve as a class representative. The Court also granted Plaintiff's Motion to Compel Further Responses to previously-served discovery seeking contact information for the putative class. B&N Booksellers provided that information on October 15, 2010. The previously scheduled Case Management Conference was continued to January 27, 2011. Plaintiff's counsel filed an amended complaint on January 26, 2011, adding two new named Plaintiffs, Jacob Allum and Cesar Caminiero. At the Case Management Conference held on January 27, 2011, the Court ordered the parties to complete mediation by May 6, 2011. The parties held a mediation on April 11, 2011. The parties have reached a tentative settlement of this matter. On August 29, 2011, the Court continued a hearing to consider granting preliminary approval of the settlement. On November 10, 2011, the parties appeared before the Court for the hearing on preliminary approval. At the Court's request, the parties subsequently submitted supplemental papers to address outstanding issues raised by the Court at the hearing. The Court granted preliminary approval of the settlement on November 22, 2011, and set March 1, 2012, for the final approval hearing. BARNES & NOBLE: "Strugala" Suit Remains Pending in New York ----------------------------------------------------------- The putative shareholder class action lawsuit captioned Stephen Strugala v. Leonard Riggio, et al., remains pending in New York, according to Barnes & Noble, Inc.'s December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 29, 2011. On December 21, 2010, a complaint captioned Stephen Strugala v. Leonard Riggio, et al., was filed in the United States District Court for the Southern District of New York against the Company's current directors and former directors Lawrence Zilavy and Michael Del Giudice. The complaint is purportedly brought both directly, on behalf of a putative class of shareholders, and derivatively, on behalf of the Company. The complaint generally alleges breaches of fiduciary duties, waste and unjust enrichment in connection with the Company's acquisition of Barnes & Noble College Booksellers, the adoption of the Shareholder Rights Plan, and other unspecified instances of alleged mismanagement and alleged wrongful conduct. The complaint also generally alleges violations of Section 14(a) of the 1934 Act in connection with the issuance of various proxy statements by the Company. The complaint generally seeks declaratory and equitable relief, including injunctive relief, and costs and fees. On January 19, 2011, the Court granted the parties' Stipulation and Order. On February 18, 2011, the plaintiff filed a Notice of Voluntary Dismissal of Claim, dismissing without prejudice his putative class claim for violations of Section 14(a) of the 1934 Act. On March 8, 2011, defendants filed a motion to dismiss all claims in the litigation. On October 4, 2011, the Court granted defendants' motion to dismiss, but also granted plaintiff leave to replead within 30 days. On November 3, 2011, plaintiff requested a pre-motion conference with the Court to discuss an anticipated motion to substitute a new plaintiff, Ms. Whitney Parker, for Mr. Strugala. The Court has scheduled that pre-motion conference for December 9, 2011. CAREONE: Public Citizen Opposes Class Action Settlement ------------------------------------------------------- Truman Lewis, writing for ConsumerAffairs.com, reports that a proposed class-action settlement between a debt-adjustment law firm and its clients should be rejected, Public Citizen said in a brief filed in Tampa on behalf of an objecting class member. A class of more than 120,000 people alleges that the law firm and an affiliated credit counseling company, CareOne, offered to help consumers settle their debts with their creditors but instead took large fees from the consumers. "I entered the debt management program at CareOne for the express purpose of lowering my interest rate and consolidating my payments. My cards were not late, my credit is in good standing," Teresa of Illinois told ConsumerAffairs.com. "CareOne didn't send my payment in a timely manner to my Citi accounts and after 3 months of 're-negotiating, Citi has now dropped those accounts from my consolidation, leaving me with late fees, a penalty 29% interest and late payments." Additionally, the law firms are alleged to have misrepresented their debt-settlement services, failed to assist their clients and discouraged their clients from responding to creditors even when the consumers were sued. Often in settlements in cases against debt-adjustment firms, the plaintiffs recover most or all of the money they paid to the debt adjustor. But under the proposed settlement, wronged members of the class would give up their right to take legal action against the defendants but get nothing in return. The defendant law firms and affiliated credit counseling company would make a payment to the American Bar Foundation ($100,000), to the settling attorneys (up to $300,000) and to the named plaintiff in the class action ($5,000), and would be responsible for the costs of administering the settlement. The more than 120,000 other consumers in the class would be forced to surrender any claims that they have against the defendants but not get a penny. "The release under the proposed settlement is of staggering breadth," said Michael Kirkpatrick, the Public Citizen attorney representing a member of the class who objects to the proposed settlement. "The release sweeps far beyond the conduct at issue in this lawsuit to grant defendants blanket immunity for any type of claim. The settlement is unfair because in exchange for giving up their legal rights, class members get nothing in return. A settlement that provides no value to the class should be rejected." "Class counsel and the representative plaintiff should not be rewarded for selling out the class," said Scott Michelman, another Public Citizen attorney working on the case. In addition to the problem of class members getting nothing in this settlement, Public Citizen argues that the proposed payment to the American Bar Foundation is improper because the foundation has no connection to the interests of the class and so would not benefit class members even indirectly. The defendant law firm involved in the settlement is Persels & Associates, LLC; also named as defendants are its associated and predecessor entities Ruther & Associates, LLC and Legal Advice Line, LCC, along with Persels & Associates attorneys Jimmy M. Persels, Neil Ruther, Robyn R. Freedman. The other defendant is an affiliated debt management company, CareOne Services, Inc. CASEY'S GENERAL STORES: Still Defends "Hot Fuel" Class Suits ------------------------------------------------------------ Casey's General Stores, Inc. is named as a defendant in four lawsuits ("hot fuel" cases) brought in the federal courts in Kansas and Missouri against a variety of gasoline retailers. The complaints generally allege that the Company, along with numerous other retailers, has misrepresented gasoline volumes dispensed at its pumps by failing to compensate for expansion that occurs when fuel is sold at temperatures above 60 F. Fuel is measured at 60 F in wholesale purchase transactions and computation of motor fuel taxes in Kansas and Missouri. The complaints all seek certification as class actions on behalf of gasoline consumers within those two states, and one of the complaints also seeks certification for a class consisting of gasoline consumers in all states. The actions generally seek recovery for alleged violations of state consumer protection or unfair merchandising practices statutes, negligent and fraudulent misrepresentation, unjust enrichment, civil conspiracy, and violation of the duty of good faith and fair dealing; several seek injunctive relief and punitive damages. The amounts sought are not quantified. These actions are among a total of 45 similar lawsuits that have been filed since November 2006 in 27 jurisdictions, including 25 states, the District of Columbia, and Guam against a wide range of defendants that produce, refine, distribute and/or market gasoline products in the United States. On June 18, 2007, the Federal Judicial Panel on Multidistrict Litigation ordered that all of the pending hot fuel cases (officially, the "Motor Fuel Temperature Sales Practices Litigation") be transferred to the U.S. District Court for the District of Kansas in Kansas City, Kansas, for coordinated or consolidated pretrial proceedings, including rulings on discovery matters, various pretrial motions, and class certification. Discovery efforts by both sides were substantially completed during the ensuing months, and the plaintiffs filed motions for class certification in each of the pending lawsuits. In a Memorandum and Order entered on May 28, 2010, the Court ruled on the Plaintiffs' Motion for Class Certification in two cases originally filed in the U.S. District Court for the District of Kansas, American Fiber & Cabling, LLC v. BP West Coast Products, LLC, et. al., Case No. 07-2053, and Wilson v. Ampride, Inc., et. al., Case No. 06-2582, in which the Company is a named Defendant. The Court determined that it could not certify a class as to claims against the Company in the American Fiber & Cabling case, having decided that the named Plaintiff had no standing to assert such claims. However, in the Wilson case the Court certified a class as to the liability and injunctive aspects of the Plaintiff's claims for unjust enrichment and violation of the Kansas Consumer Protection Act (KCPA) against the Company and several other Defendants. With respect to claims for unjust enrichment, the class certified consists of all individuals and entities (except employees or affiliates of the Defendants) that, at any time between January 1, 2001, and the present, purchased motor fuel at retail at a temperature greater than 60 F, in the state of Kansas, from a gas station owned, operated, or controlled by one or more of the Defendants. As to claims for violation of the KCPA, the class certified is limited to all individuals, sole proprietors and family partnerships (excluding employees or affiliates of Defendants) that made such purchases. The Court also ordered the parties to show cause in writing why the Wilson case and the American Fiber & Cabling case should not be consolidated for all purposes. The matter is now under consideration by the Court. The court has scheduled the trial to commence on May 17, 2012. No further updates were reported in the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. The Company says its management cannot estimate or quantify the relief sought nor the amount of possible loss or potential range of loss related to these actions. Management does not believe the Company is liable to the Plaintiffs for the conduct complained of, and intends to contest the matter vigorously. CITIBANK INC: Sued in Calif. Over Collection of Overdraft Fees -------------------------------------------------------------- Ronald S. Arendas, as an individual and on behalf of all others similarly situated v. Citibank Inc., Citibank (West) FSB, Citibank, N.A. and Citibank FSB, and Does 1 through 125, Case No. 4:11-cv-06462 (N.D. Calif., December 19, 2011) is a civil action seeking monetary damages, restitution and declaratory relief from Citibank, N.A., arising from its unfair and unconscionable assessment and collection of overdraft fees in violation of its contractual terms with the customers in which the contract affirmatively states: "That there is no Citibank fee charged for POS transactions." The Plaintiff alleges that Citibank imposed on customers overdraft fees in certain prescribed circumstances known only to Citibank, charging its customers an overdraft fee of as much as $34 per transaction -- even when the transaction was for only a few dollars. He accuses Citibank of intentionally designing this automatic, fee-based overdraft scheme to maximize overdraft fee revenue. He adds that Citibank misled customers to believe that, if a debit card transaction was approved, no overdraft fees would be due, and that Citibank never obtained the agreement of its customers to the imposition of overdraft fees in the context of debit card transactions. Mr. Arendas is a citizen of the state of California. Citibank, a national bank, provides retail banking services to millions of consumers, including Plaintiff and members of the putative Class, which include the issuance of debit cards for use by its customers in conjunction with their checking accounts. The Plaintiff is represented by: Richard D. McCune, Esq. Kristy M. Arevalo, Esq. Jae (Eddie) K. Kim, Esq. MCCUNEWRIGHT, LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA Telephone: (909) 557-1250 Facsimile: (909) 557-1275 E-mail: rdm@mccunewright.com kma@mccunewright.com jkk@mccunewright.com - and - Michael W. Sobol, Esq. Roger N. Heller, Esq. Jordan Elias, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN L.L.P. Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: msobol@lchb.com rheller@lchb.com jelias@lchb.com - and - Aaron S. Podhurst, Esq. Robert C. Josefsberg, Esq. Steven C. Marks, Esq. Peter Prieto, Esq. Stephen F. Rosenthal, Esq. John Gravante, III, Esq. PODHURST ORSECK, P.A. City National Bank Building 25 W. Flagler Street, Suite 800 Miami, FL 33130-1780 Telephone: (305) 358-2800 Facsimile: (305) 358-2382 E-mail: apodhurst@podhurst.com rjosefsberg@podhurst.com smarks@podhurst.com pprieto@podhurst.com srosenthal@podhurst.com jgravante@podhurst.com - and - Robert C. Gilbert, Esq. Stuart Z. Grossman, Esq. David Buckner, Esq. Seth E. Miles, Esq. GROSSMAN ROTH, P.A. 2525 Ponce de Leon Boulevard, Eleventh Floor Coral Gables, FL 33134 Telephone: (305) 442-8666 Facsimile: (305) 779-9596 E-mail: rcg@grossmanroth.com szg@grossmanroth.com dbu@grossmanroth.com sem@grossmanroth.com - and - Ted E. Trief, Esq. Barbara E. Oik, Esq. TRIEF & OLK 150 E. 58th Street, 34th Floor New York, NY 10155 Telephone: (212) 486-6060 Facsimile: (212) 317-2946 E-mail: ttrief@triefandolk.com bolk@triefandolk.com - and - Bruce S. Rogow, Esq. BRUCE S. ROGOW, P.A. Broward Financial Center 500 East Broward Boulevard, Suite 1930 Fort Lauderdale, FL 33394 Telephone: (954) 767-8909 Facsimile: (954) 764-1530 E-mail: brogow@rogowlaw.com - and - E. Adam Webb, Esq. Matthew C. Klase, Esq. G. Franklin Lemond, Jr., Esq. WEBB, KLASE & LEMOND, L.L.C. 1900 The Exchange, S.E., Suite 480 Atlanta, GA 30339 Telephone: (770) 444-9325 Facsimile: (770) 444-0271 E-mail: Adam@WebbLLC.com Matt@WebbLLC.com FLemond@WebbLLC.com - and - David S. Stellings, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN L.L.P. 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 E-mail: dstellings@lchb.com - and - Russell W. Budd, Esq. Bruce W. Steckler, Esq. Mazin A. Sbaiti, Esq. BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Telephone: (214) 521-3605 Facsimile: (214) 520-1181 E-mail: rbudd@baronbudd.com bsteckler@baronbudd.com msbaiti@baronbudd.com - and - Ruben Honik, Esq. Kenneth J. Grunfeld, Esq. GOLOMB & HONIK, P.C. 1515 Market Street, Suite 1100 Philadelphia, PA 19102 Telephone: (215) 985-9177 Facsimile: (215) 985-4169 E-mail: rhonik@golombhonik.com kgrunfeld@golombhonik.com CPI INTERNATIONAL: Awaits Final Okay of Merger-Related Suit Deal ---------------------------------------------------------------- CPI International Holding Corp. is awaiting final approval of its settlement of a merger-related class action lawsuit, according to the Company's December 8, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2011. On February 11, 2011, CPI International LLC (formerly, CPI International, Inc., "Predecessor"), then a Delaware corporation and publicly traded company, completed its merger with Catalyst Acquisition, Inc. ("Merger Sub"), a Delaware corporation and wholly owned subsidiary of CPII (formerly, CPI International Acquisition, Inc.), a Delaware corporation, whereby Merger Sub merged with and into Predecessor (the "Merger"), with Predecessor continuing as the surviving corporation and a wholly owned subsidiary of CPII. The Merger was effected pursuant to the Agreement and Plan of Merger, dated as of November 24, 2010, among Predecessor, CPII and Merger Sub (the "Merger Agreement"). Immediately following the consummation of the Merger and related transactions, Predecessor was converted into a limited liability company and liquidated, and CPI International Acquisition, Inc. changed its name to CPI International, Inc. On July 1, 2010, a putative stockholder class action complaint was filed against Predecessor, the members of Predecessor's board of directors, and Comtech in the California Superior Court for the County of Santa Clara, entitled Continuum Capital v. Michael Targoff, et al. (Case No. 110CV175940). The lawsuit concerned the proposed merger between Predecessor and Comtech, and generally asserted claims alleging, among other things, that each member of Predecessor's board of directors breached his fiduciary duties by agreeing to the terms of the previously proposed merger and by failing to provide stockholders with allegedly material information related to the proposed merger, and that Comtech aided and abetted the breaches of fiduciary duty allegedly committed by the members of Predecessor's board of directors. The lawsuit sought, among other things, class action certification and monetary relief. On July 28, 2010, the plaintiff filed an amended complaint, making generally the same claims against the same defendants, and seeking the same relief. In addition, the amended complaint generally alleged that the consideration that would have been paid to Predecessor's stockholders under the terms of the proposed merger was inadequate. On September 7, 2010, Predecessor terminated the Comtech sale agreement. On November 24, 2010, Predecessor entered in an agreement and plan of merger with CPII and Merger Sub, which are affiliates of the Veritas Fund. On December 15, 2010, the plaintiff filed a second amended complaint, which removed Comtech as a defendant, added allegations related to the Merger and to Veritas Capital, and added a claim for attorneys' fees. On December 23, 2010, after Predecessor filed its preliminary proxy statement relating to a special meeting in connection with the approval of the Merger, the plaintiff filed a third amended complaint, adding allegations related to the disclosures in the preliminary proxy statement. The third amended complaint sought, among other things, class action certification and monetary relief. Predecessor believes the action is without merit; however, to avoid the cost and uncertainty of litigation and to complete the proposed Merger without delay, the defendants entered into a Memorandum of Understanding concerning settlement with the plaintiff, followed by a Stipulation of Settlement dated as of March 29, 2011 ("Stipulation"). The settlement and any attorneys' fees award are subject to Court approval. On October 7, 2011, the Court preliminarily approved the settlement, directed that notice be mailed to settlement class members, and scheduled a final approval hearing for December 16, 2011. Pursuant to the Stipulation and upon final Court approval, among other things, the defendants will receive a release of claims and the plaintiff will dismiss the third amended complaint with prejudice in exchange for, among other agreements, an agreement by Predecessor to make certain additional disclosures concerning the Merger, which disclosures were included in a definitive proxy statement filed by Predecessor on January 11, 2011. The Stipulation also provides that, upon final Court approval and dismissal of the action, Predecessor, its insurers or its successor in interest will cause to be paid to the plaintiff's counsel approximately $0.6 million in full settlement of any claim for attorneys' fees and all expenses. The Company expects $0.4 million of this payment to be borne by its insurers. The $0.6 million full settlement and the $0.4 million insurance reimbursement are included in accrued liabilities and prepaid and other current assets, respectively, in the accompanying consolidated balance sheet as of September 30, 2011. CREIG NORTHROP: Faces Class Action Over Mortgage Fraud ------------------------------------------------------ Jamie Smith Hopkins, writing for The Baltimore Sun, reports that several Baltimore-area homeowners are suing the largest residential real estate team in the state, alleging a "scheme of fraud and misrepresentations" involving home purchases, sales and financing. The suit, a proposed class action, names the Creig Northrop Team, Long & Foster and several mortgage firms -- including Long & Foster's Prosperity Mortgage Co. -- as defendants. A similar lawsuit brought against the Northrop team by a Howard County couple was settled in March. The new suit was filed Dec. 9. It alleges that the defendants used a complex scheme to get clients to buy new homes without first selling their old ones, requiring two new loans rather than one and netting more fees and commissions for the companies. The defendants fabricated documents to make these deals possible, the lawsuit also alleges. A Long & Foster spokeswoman said on Dec. 19 that the company could not comment on pending litigation. Creig Northrop said he had not been served with the lawsuit and had no idea he was being sued until he was asked for comment Dec. 19. Northrop's team -- which has offices in Howard, Carroll and Montgomery counties and is part of Long & Foster -- handled a higher volume of home purchase and sale transactions than any other real estate team in the country last year, according to a ranking prepared for industry analyst REAL Trends. In the complaint, lawyers for Frank and Catherine Larocca of Mount Airy, Mehdi Nafisi and Forough Iranpour of Clarksville, and Kenneth and Angela Pfeifer of Sykesville say each couple went to the Northrop team for help selling their homes and buying new ones. The homeowners were seeking to move in 2006 and 2007, a period when sales activity was falling off. But agents with the team persuaded them to sign contracts for new homes without contingencies that would have allowed them to back out if they couldn't sell their old homes, according to the complaint. The agents told each couple that they could finance the down payment on the new home by taking out a "bridge loan," the lawsuit alleges. "No such bridge loans were actually available to the Plaintiffs, and the Defendants knew this fact," the lawsuit alleges. Instead, Prosperity Mortgage put together applications for a home equity line of credit on the old homes and sent the applications to a competing mortgage company without the homeowners' knowledge, the lawsuit alleges. The Northrop team delayed listing the homeowners' current homes for sale until after the line of credit was approved because they wouldn't have qualified if it were clear they were trying to sell, according to the lawsuit. Then Prosperity Mortgage processed applications for mortgages on the new homes, the lawsuit says. To get the homeowners to qualify despite a now-high debt load, Prosperity Mortgage manufactured fake leases to make it appear that the old homes were being rented out, the lawsuit alleges. The homeowners were unaware of these maneuvers, according to the complaint. "Defendants forged the Plaintiffs' signatures," the lawsuit alleges. These deals, according to the complaint, left each couple with three loans -- mortgages on both homes plus the equity line of credit. They were not able to easily sell their original homes for the amount the Northrop team led them to believe they could, and their agents "pressured" them to lower their asking prices, "typically well below the market values initially provided to the Plaintiffs by the Defendants," the lawsuit alleges. In the earlier lawsuit that settled in March, a Fulton couple said they were victimized by a similar buy-now-sell-later scheme. G. Russell Donaldson, who represented them and is one of the attorneys involved in the new suit, said the settlement terms were confidential. DE BEERS: Court Affirms 2006 Antitrust Class Action Settlement -------------------------------------------------------------- Rob Bates, writing for JCK, reports that on Dec. 20, the En Banc Panel of the Court of Appeals of the Third Circuit affirmed the $300 million De Beers settlement reached in 2006. The panel's decision overturns an earlier court ruling that put the settlement in limbo. The only remaining option for the objectors, Jewelers Vigilance Committee president and CEO Cecilia Gardner tells JCK, is to ask for a rehearing, or appeal to the Supreme Court. But one objecting lawyer says that isn't likely. "As the court recognized, this was a tremendous victory for all purchasers of diamonds," says New York University professor Samuel Issacharoff, one of the appellant attorneys. "I think this litigation is finally behind us all." Class action attorney Jared Stamell agrees that "based on this decision, we expect no further litigation." "I'm glad this is finally affirmed," he says. "We can begin now to put the machinery of distributing money into place. We hope to complete this in a manner of months." He noted that the original $300 million has been sitting in escrow for six years and has gained interest. "[Class members] will get a little more money with the interest," he says. "But with interest rates so low, I don't know." Ms. Gardner cautions that any payouts likely won't be a big sum for most class members in the jewelry business -- "enough to take your staff out to lunch," she says. She adds that the period of time to file claims has expired. FINISAR CORP: Appeal From Securities Suit Dismissal Pending ----------------------------------------------------------- An appeal from a final judgment approving a settlement and dismissing a securities class action lawsuit remains pending, according to Finisar Corporation's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 30, 2011. A securities class action lawsuit was filed on November 30, 2001, in the United States District Court for the Southern District of New York, purportedly on behalf of all persons who purchased the Company's common stock from November 17, 1999, through December 6, 2000. The complaint named as defendants the Company, Jerry S. Rawls, its Chairman of the Board and formerly its President and Chief Executive Officer, Frank H. Levinson, its former Chairman of the Board and Chief Technical Officer, Stephen K. Workman, its former Senior Vice President and Chief Financial Officer, and an investment banking firm that served as an underwriter for the Company's initial public offering in November 1999 and a secondary offering in April 2000. The complaint, as subsequently amended, alleges violations of Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(b) of the Securities Exchange Act of 1934, on the grounds that the prospectuses incorporated in the registration statements for the offerings failed to disclose, among other things, that (i) the underwriter had solicited and received excessive and undisclosed commissions from certain investors in exchange for which the underwriter allocated to those investors material portions of the shares of the Company's stock sold in the offerings and (ii) the underwriter had entered into agreements with customers whereby the underwriter agreed to allocate shares of the Company's stock sold in the offerings to those customers in exchange for which the customers agreed to purchase additional shares of the Company's stock in the after market at pre-determined prices. No specific damages are claimed. Similar allegations have been made in lawsuits relating to more than 300 other initial public offerings conducted in 1999 and 2000, which were consolidated for pretrial purposes. In October 2002, all claims against the individual defendants were dismissed without prejudice. On February 19, 2003, the Court denied defendants' motion to dismiss the complaint. In February 2009, the parties reached an understanding regarding the principal elements of a settlement, subject to formal documentation and Court approval. Under the settlement, the underwriter defendants will pay a total of $486 million, and the issuer defendants and their insurers will pay a total of $100 million to settle all of the cases. On August 25, 2009, the Company funded approximately $327,000 with respect to its pro rata share of the issuers' contribution to the settlement and certain costs. This amount was accrued in the Company's consolidated financial statements during the first quarter of fiscal 2010. On October 2, 2009, the Court granted approval of the settlement and on November 19, 2009, the Court entered final judgment. The judgment has been appealed by certain individual class members. FINISAR CORP: Defends Suit Over March 8 Earnings Announcement ------------------------------------------------------------- Finisar Corporation continues to defend a consolidated securities class action arising from its March 8, 2011 earnings announcement, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 30, 2011. Several securities class action lawsuits related to the Company's March 8, 2011 earnings announcement alleging claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 have been filed on behalf of a purported class of persons who purchased stock between December 1 or 2, 2010, through March 8, 2011. The named defendants are the Company and its Chairman of the Board, Chief Executive Officer and Chief Financial Officer. To date, no specific amount of damages has been alleged. The cases have been consolidated and lead plaintiffs have been appointed to file a consolidated complaint. GENESCO INC: Defends Calif. Labor Code-Violation Suit vs. Unit -------------------------------------------------------------- Genesco Inc. continues to defend its subsidiary against a class action lawsuit alleging various violations of the California Labor Code, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 29, 2011. On June 22, 2011, the Company removed to the U.S. District Court for the Eastern District of California the case Overton v. Hat World, Inc., a putative class action against its subsidiary, Hat World, Inc., alleging various violations of the California Labor Code, including failure to comply with certain itemized wage statement requirements, failure to reimburse expenses, forced patronization, and failure to provide adequate seats to employees. The plaintiff seeks injunctive relief, reimbursement of allegedly unpaid business expenses, statutory penalties, restitution, interest, and attorney fees. The Company says it intends to defend the action. GENESCO INC: Settles Two Song-Beverly Act Violation Suits --------------------------------------------------------- Genesco Inc. has reached an agreement in principle to settle two class action lawsuits alleging that its retail stores violated the California Song-Beverly Credit Card Act of 1971, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 29, 2011. On March 3, 2011, there was filed in the U.S. District Court for the Eastern District of California a putative class action styled Fraser v. Genesco Inc. On March 4, 2011, there was filed in the Superior Court of California for the County of San Francisco a putative class action styled Pabst v. Genesco Inc. et al. The Pabst action was removed to the U.S. District Court for the Northern District of California on April 1, 2011. Both complaints allege that the Company's retail stores in California violated the California Song-Beverly Credit Card Act of 1971 and other California law through customer information collection practices, and both seek civil penalties, damages, restitution, injunctive and declaratory relief, attorneys' fees, and other relief. The Company and plaintiffs' counsel have reached an agreement in principle to settle both actions, subject to documentation and court approval. The Company expects that the proposed settlement will not have a material effect on its financial condition or results of operations. LOUISIANA CITIZENS: Court Reinstates $92.8-Mil. Claims Judgment --------------------------------------------------------------- Rebecca Mowbray, writing for The Times-Picayune, reports that a divided Louisiana Supreme Court reinstated a $92.8 million lower court judgment by a 4-3 vote on Dec. 16 against Louisiana Citizens Property Insurance Corp. for slow adjustment of claims after Hurricanes Katrina and Rita, likely becoming the largest insurance verdict after the 2005 hurricanes. The Louisiana Supreme Court agreed with the lower court ruling that Citizens Insurance was too slow in paying claims after Hurricanes Katrina and Rita, in violation of state law. In the original March 2009 judgment, Judge Henry Sullivan of the 24th Judicial District Court in Jefferson Parish awarded 18,573 homeowners in the class-action case, Geraldine R. Oubre et al. v. Louisiana Citizens Fair Plan, $5,000 each because Citizens' own records proved that the state-sponsored insurer of last resort waited more than 30 days to begin adjusting hurricane claims, violating state law. While the case was on appeal, another $11 million in interest was added to the judgment, bringing the total to about $103.8 million. "We're very pleased for our clients," said plaintiff attorney Fred Herman. "It demonstrates the utter and abject failure of Citizens to perform their statutory and contractual obligations to their insureds." Because the law dealing with the timely adjustment of claims does not provide for attorneys' fees, they will have to come out of the settlement and will probably be about one-third of the ultimate award, leaving about $69.2 million for claimants. Insurance Commissioner Jim Donelon blasted the ruling, saying that it was unfair that Citizens will have to pay when class actions in federal court against big insurers didn't survive because the rules are tougher. "I think it's unconscionable. It's legally and morally deficient," Mr. Donelon said. Mr. Donelon was set to hold a news conference on Dec. 20 in Baton Rouge to expand what he sees as the legal flaws in the case. He said he also plans to reintroduce legislation next spring that would ban the filing of class actions against Louisiana Citizens Louisiana Citizens' chief executive, Richard Robertson, said the Citizens board will consider its options at its next meeting on Jan. 12. It will likely ask for the state supreme court to reconsider the case, and it could ask the U.S. Supreme Court to review the case. "We are at this point looking at our options," said Mr. Robertson, who began working at Citizens in 2010 after the case began. Risk of assessments The Supreme Court opinion is great news for Citizens policyholders, many of whom had to wait for months to begin the adjustment process while their damage festered, but it creates the risk that all owners of insured property in Louisiana could have to chip in to cover the cost of future hurricanes. As the state-sponsored insurer of last resort, Louisiana Citizens has the power to tack assessments onto all property insurance bills if it doesn't have enough money on hand to pay claims, and it did so after Hurricane Katrina. Those obligations are then transferred from property owners to taxpayers at large, because the state allows people to take a credit on their income taxes for Citizens assessments. Mr. Donelon said the authority that allowed Citizens to assess property owners around the state from Katrina and Rita has now expired, so no assessments will be levied. And Citizens probably does have enough cash on hand to pay the judgment. But Mr. Donelon said the cost of the judgment is real. If Citizens uses most of its free cash to satisfy the judgment, it won't be able to afford to buy reinsurance, or coverage to cover a portion of any catastrophe claims, with a low deductible, increasing the risk of assessments if a hurricane were to strike next season. "We would have no virtually no money for the coming hurricane season," he said. Meanwhile, Citizens faces other class actions that could ultimately cost the insurer money. One is "legitimate" in Mr. Donelon's view; it deals with the proper disclosure of charges on Citizens policy materials. Another is Toni Swain Orrill et al. v. Louisiana Citizens Fair Plan et., a class action unfolding in Orleans Parish court that deals with timely adjustment issues similar to the Oubre case. Citizens tried to settle that case in fall 2008 for $35 million, and it said that it believed the deal would encompass the claims in the rival Oubre case. But a state appeals court threw out the Orrill settlement in April 2010, saying that the parties had made an improper "end run" around the other case to try to settle it on the cheap. The controversy between the Oubre and Orrill cases became so heated that, in December 2008, an attorney for the Orrill case and Oubre attorney J. Robert Ates got into a brawl in court. Meanwhile, the costs of the Oubre case could grow. Judge Sullivan has before him a motion from the Oubre case to compensate another 7,000 to 10,000 homeowners who say that Citizens initiated the adjustment of hurricane claims too slowly. That motion had been put on hold, but now that the Supreme Court has rendered its opinion, it could be reactivated. If Judge Sullivan were to find in that those other Oubre claims also were adjusted too slowly, Citizens could have to pay another $35 million to $50 million. But Mr. Herman said he doesn't feel sorry for Citizens, because the company had an opportunity to settle the case for less money, and failed to do so. While the Oubre case was pending in spring 2009, attorneys for Citizens and the plaintiffs met with a mediator and came up with a proposed $50 million settlement. The agreement would have settled all claims dealing with the timeliness of adjustments for $50 million, including attorneys' fees, to be collected over time on a payment plan, with provisions to extend the time period if Citizens faced claims from another hurricane. Although attorneys for Citizens recommended taking the deal, the Citizens board refused to act on it, exposing the insurer to the risk of a judgment. At the time, Mr. Donelon and the Citizens board said they believed they could resolve the timeliness of adjustment claims through the rival Orrill case in Orleans Parish. Instead, when the Orrill deal was thrown out April 2010, Citizens was left with potential exposure in both the Oubre and Orrill cases. "It's incredible to me that they could be so callous, so devoid of analysis and property valuation to turn their backs on what their lawyers and their executives at the time had recommended to them. Those are the types of things that people need to understand when they're re-electing them," Mr. Herman said. The Citizens board is made up of a representative of the state insurance commissioner, the state treasurer, the chairman of the House committee on insurance and the chairman of the Senate committee on insurance, plus appointees by the Governor and insurance commissioner from various insurance trade groups. Mr. Donelon said he doesn't remember the details of the mediation, but it didn't strike him as a good deal. Citizens would have had to pay $50 million in Oubre, plus the $18 million that the Orrill case had been whittled down to at the time. "I don't remember the details of the outcome of that mediation, but I am convinced that it never could have been settled for less than $80 or $90 million," Mr. Donelon said. The Supreme Court opinion was written by Justice Jeannette The riot Knoll. In separate opinions, justices Jeffrey Victory, John Weimer and Greg Guidry dissented. When the Oubre judgment is finalized, it will become the largest insurance award by a court after Hurricane Katrina. Until now, that distinction had been held by Robert Fresh Market, which won $21 million plus interest from Lafayette Insurance Co. in June 2008. MERICLE CONSTRUCTION: Juveniles to Get Portion of Settlement ------------------------------------------------------------ Zack Needles, writing for The Legal Intelligencer, reports that the largest single portion of the $17.75 million settlement developer Robert K. Mericle agreed to on Dec. 16 will be reserved for juvenile victims who suffered physical or psychological harm as the result of being sent to detention centers by former Luzerne County Common Pleas Court Judge Mark A. Ciavarella Jr. Mr. Mericle, the builder of two juvenile detention facilities who allegedly paid millions in "finder's fees" to Judge Ciavarella and former Luzerne County Judge Michael T. Conahan, has agreed to settle his portion of a civil suit brought by a class of juvenile plaintiffs for $17.75 million, with the possibility of an additional $1.75 million. Under the settlement, up to 30% of that initial $17.75 million -- about $5.3 million -- will go toward attorney fees. After that, more than $8 million -- plus any money left over after the rest of the payments are allocated -- will be reserved for class members with "unique specified situations," such as physical injury or illness, psychological harm or suicide. Those payments will be made in addition to money allocated to juvenile class members according to which facilities Judge Ciavarella sent them to. Class members whom Judge Judge Ciavarella sent to either of the two Mericle-built facilities -- PA Child Care and Western PA Child Care -- will each receive $5,000, while those who were sent to other facilities will receive $1,000 each and those who were never detained will receive $500 each. The class action stems from the "kids-for-cash" scandal in Luzerne County. Mr. Mericle's attorneys, along with counsel for the plaintiffs, filed the settlement agreement in the U.S. District Court for the Middle District of Pennsylvania on Dec. 16. It now awaits approval by a judge. Under the agreement in Wallace v. Powell, according to court documents, Mr. Mericle and his company, Mericle Construction Inc., would pay $17.75 million into the settlement fund with no admission of liability, resolving all claims against them. The settlement provides for an additional $1.75 million payment to the plaintiffs if Mericle is successful in a separate suit against his insurer, according to court documents. After attorney fees, according to the settlement, class members who appeared before Judge Ciavarella but were not sent to a juvenile detention facility between Jan. 1, 2003, and May 28, 2008, will receive $500 from the $410,000 "Probation Benefit Fund." Each class member whom Judge Ciavarella sent to a detention facility other than PA Child Care or Western PA Child Care during that period will receive $1,000 from the $820,000 "Non-PACC/WPACC Benefit Fund." Class members whom Judge Ciavarella sent to either PA Child Care or Western PA Child Care will receive $5,000 from the $3.65 million "PACC/WPACC Benefit Fund." Meanwhile, class members who are parents or guardians of juveniles that either had to make payments to or had wages garnished by Luzerne County as a result of Judge Ciavarella's adjudications will be reimbursed those amounts from the $500,000 "Parent and/or Natural Guardian Benefit Fund." Under the settlement, leftover money from any of those funds will be transferred to the "Enhanced Benefit Fund," which will go toward juveniles "with specified unique situations." That fund will be at least $8.035 million. Under the settlement, the factors for determining whether a class member is eligible to receive payment from the Enhanced Benefit Fund include age, number of juvenile petitions and number of days spent at PA Child Care, Western PA Child Care or another detention facility. Class members who became physically injured or ill, as well as those who suffered psychological harm or educational difficulties as a result of detainment ordered by Judge Ciavarella, may also be eligible for payment from the Enhanced Benefit Fund. Situations where a juvenile committed suicide as a result of detainment ordered by Judge Ciavarella may also warrant payment from the Enhanced Benefit Fund. The payments will be managed by a claims committee consisting of one attorney each from four of the firms representing plaintiffs in the class action: Hangley Aronchick Segal Pudlin & Schiller, Anapol Schwartz and the Juvenile Law Center in Philadelphia, along with Pittsburgh-based Caroselli Beachler McTiernan & Conboy. With Mr. Mericle out, the remaining defendants in the suit are Judge Ciavarella and Judge Conahan, as well as Robert Powell, the former co-owner of PA Child Care who admitted to paying millions in kickbacks to the two judges. Additional defendants include the two detention facilities -- PA Child Care and Western PA Child Care -- as well as Mid-Atlantic Youth Services, the company that operated the facilities, and Sandra Brulo, the former deputy director of forensic programs of the county's department of probation. The consolidated suits in Wallace allege that Judge Conahan and Judge Ciavarella conspired with the other defendants and used their influence as judicial officers to select PA Child Care and Western PA Child Care as detention facilities, and that they intentionally filled those facilities with juveniles to earn the conspirators excessive profits. According to the complaint, one juvenile plaintiff, B.W., was 14 years old when she was charged with multiple criminal offenses including making terroristic threats after an argument on Myspace. Before she appeared in Judge Ciavarella's courtroom, B.W. was told that if she admitted guilt she would receive only three to six months of probation, according to the complaint. But the complaint alleged that at the adjudication hearing, Judge Ciavarella instead ordered that she be removed from the courtroom in shackles and incarcerated pending a psychological evaluation. When B.W.'s mother, plaintiff Florence Wallace, protested, Judge Ciavarella told her to "shut up or be held in contempt." B.W. was initially held at a juvenile detention facility called Camp Adams because there were no beds available at PA Child Care, according to the complaint. The complaint alleged that B.W. was eventually transferred to PA Child Care, unnecessarily delaying her psychological evaluation. In February, a federal jury in Scranton found Judge Ciavarella guilty of 12 of the 39 counts of corruption filed against him, including racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges. He is now serving 28 years in an Illinois federal prison. During his sentencing hearing in August, Judge Ciavarella refused to apologize for his behavior as a juvenile judge. "My courtroom was always conducted in a fair manner," he said, adding that he "didn't do anything different than any other judge" in Luzerne County. Judge Conahan pleaded guilty in 2010 to one count of racketeering and is currently serving a 17.5-year federal prison sentence in Florida. In a June 2009 plea agreement, Powell pleaded guilty to failing to report a felony to federal authorities and with being an accessory after the fact to a tax conspiracy, but alleged his involvement in the scheme escalated as the judges forced his hand. On Dec. 27, he will begin serving an 18-month sentence in a federal prison in Florida. Mr. Mericle has also entered a guilty plea but has yet to be sentenced. Eric Kraeutler of Morgan Lewis & Bockius in Philadelphia, lead counsel for Mr. Mericle in the civil suit, said in a press release issued Dec. 16 that he and his client were pleased to bring their involvement in the litigation to an end. Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, was quoted in the release as saying Mr. Mericle "approached the settlement process in an open and honest way and we are pleased that this settlement will address the needs of the children affected by this matter." Daniel Segal of Hangley Aronchick said in a statement that he and his clients are "very pleased with the Mericle settlement and delighted that it will address the needs of the children affected by this matter." MYSPACE: Confirms Request for SEC Racketeering Violation Probe -------------------------------------------------------------- MySpace Founder Brad Greenspan confirmed on Dec. 20 that on December 16, 2011, in the wake of the resignation by The New York Times Company CEO Janet L. Robinson, 61, president and chief executive officer since 2004, a formal complaint and request for a full investigation was made in November to the Board of Directors. In addition, the Securities & Exchange Commission (SEC) has confirmed to the MySpace Founder the agency has received evidence submitted on November 23, 2011 and forwarded such complaint to the Office of Investor Education and Advocacy (OIEA) to review potential violations by the NYT CEO or other executives of Sarbanes Oxley Statue 802 and/or Federal Racketeering Violations including Obstruction of Justice under File # HO-00178048-HO. Mr. Greenspan is also the largest shareholder in Brown v. Brewer a current 6 year Class Action Federal Securities Fraud and Antitrust case against News Corp and Intermix related to the 2005 Acquisition of Myspace.com. The Class Action case 2:06-cv-03731 is ongoing in Federal Central District in Los Angeles before the Honorable Judge George King. Most recently, Mr. Greenspan has filed for 25+ summary judgment counts on behalf of the Class of over 5000 public shareholders after winning an initial Summary Judgment ruling in June 2010. The MySpace Founder has also filed a Rule 701 Damage Valuation that establishes damages of over $32 billion dollars for Security Fraud and over $96 billion with antitrust claims including both a Clayton Act Section Eight Violation for Interlocking Directors and 2 Sherman Act Violation claims. "Its incredibly important to have publicly traded media companies follow Federal laws including Sarbanes-Oxley statues," said the MySpace Founder "Equally important is an unfettered and uncorrupted free press in America that does not collude against Whistleblowers. I am hopeful and fully expect the Directors of the New York Times to report out on their internal investigation into the matter including working with the SEC if appropriate to bring to light any corruption or improper arrangements with other media companies which may have existed under the former CEO Janet Robinson." According to court documents, the MySpace Founder initiated contact with both The New York Times Company Directors and SEC providing significant evidence of an unusual suppression of certain story topics including cutting off coverage of the Brown v. Brewer Federal Class Action case after the New York Times Newspaper reported out on the case in July 2010 after an article was written by Gretchen Morgenson titled "Bidder Beware" covering Judge King's June 2010 Summary Judgment. The New York Times also refused to contact The MySpace Founder after being supplied evidence that Mr. Greenspan was a victim of Computer Hacking/Intrusion by News Corporation which can be viewed in the pleadings before Judge King including the Motion of Summary Judgment, Motion for 60(b) Fraud upon the Court, & Motion for Intervention viewable at below link: http://www.scribd.com/doc/74858285/December-5-2011-Motion- Approval-96-Billion-Damage-Report-Consideration-on-60b4-Motion- Void The latest Brown v. Brewer Court docket can be seen here: http://www.scribd.com/doc/75578171/News-Corp-AntiTrustSecurities- Fraud-Docket-RPT-12-8-11-California-Central-District The Rule 701 Damage Valuation Report can be viewed at below link: http://www.scribd.com/doc/74858285/December-5-2011-Motion- Approval-96-Billion-Damage-Report-Consideration-on-60b4-Motion- Void Judge George King's June 2010 Summary Judgment Ruling can be viewed at below link: http://www.scribd.com/doc/33263784/2010-6-17-Federal-Judge-George- King-Rules-against-defendants-who-sold-Myspace-to-fox About The New York Times Company The New York Times Company is a media company with 2010 revenues of $2.4 billion, includes The New York Times, the International Herald Tribune, The Boston Globe, 15 other daily newspapers and more than 50 Web sites, including NYTimes.com, BostonGlobe.com, Boston.com and About.com. About Brad Greenspan Brad Greenspan is an Internet entrepreneur and investor. He is the Founder of MySpace and he is regarded as one of the pioneers of the social networking sector. Mr. Greenspan's portfolio of start up and early stage companies has covered a broad range of sectors including: Big Fish Games (gaming), Borba Corporation (neutracuticals), Fluid Music (music), Draths (clean technology),BroadwebAsia, (Asian focused online entertainment), and Live Universe (online entertainment). NATURALIZER: Recalls 6,800 Women's Dress Shoes Due to Fall Hazard ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission and Health Canada, in cooperation with retailer, Naturalizer, of St. Louis, Missouri, and distributor, Brown Shoe Company, Inc., of St. Louis, Missouri, announced a voluntary recall of about 6,100 pairs of Naturalizer "Dare" Women's Dress Shoes in the United States and 700 pairs in Canada. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The heels of the shoes can lean to either side, posing a fall hazard when worn by consumers. The firm has received one report of a consumer in Canada who received a minor leg injury when she fell while wearing the shoes. This recall involves women's faux patent leather dress shoes with the style name "Dare." They have a three-inch heel, open toes and a decorative faux patent leather bow across the front. The shoes were sold in sizes 5M to 10M, 11M, 7W to 9W and in gray, nude, scarlet and black colors. "Naturalizer" is printed inside and on the bottom of the shoe. The following stock numbers are printed inside the shoes below the size number: A3279S1020 Dare (gray), A3279S1250 Dare (nude), A3279S1600 Dare (scarlet) and A3279S2001 Dare (black). Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12061.html The recalled products were manufactured in China and sold exclusively by Naturalizer stores nationwide from July 2011 through November 2011 for between $25 and $50. Consumers should immediately stop wearing the shoes and return them to any Naturalizer store for a full refund. For additional information, contact the firm toll-free at (888) 443-2019 anytime, visit the firm's Web site at http://www.naturalizer.com/,or e- mail the firm at NaturalizerDare@BrownShoe.com O'FALLON: Faces Class Action Over Excessive Towing Fees ------------------------------------------------------- Kelly Holleran, writing for The Madison St. Clair Record, reports that a putative class action lawsuit has been filed against O'Fallon, alleging the city overcharged for towing fees after arresting drivers accused of driving under the influence. Rogelio Saladrigas alleges the city charged him hundreds of dollars in fees to retrieve his towed vehicle. Mr. Saladrigas was accused of driving under the influence and claims he was forced to pay excessive fees because of his citations. However, if a car is towed under any other circumstances, the cities charge "a fraction of that amount," according to the complaint filed Dec. 6 in St. Clair County Circuit Court. On the same day in Madison County Circuit Court, four other plaintiffs filed nearly identical lawsuits against the cities of Edwardsville, Collinsville, Granite City and Alton. In his complaint, Mr. Saladrigas claims he was cited and arrested on Oct. 8. As a result, his car was towed. When Mr. Saladrigas attempted to reclaim his vehicle from O'Fallon, he was required to pay a level one administrative fee to O'Fallon of $500, the suit states. After paying the fee, Mr. Saladrigas was given a receipt, which he was then allowed to use to retrieve his vehicle, the complaint says. "The fees required under the above ordinances have no rational basis in accomplishing the means as stated by the ordinance," Mr. Saladrigas's suit states. "There is no rational justification for imposing $500 administrative fee upon a motorist to merely issue that person a receipt stating they have paid $500." In his complaint, Mr. Saladrigas is seeking a refund for the administrative fee he was forced to pay, plus costs and other relief the court deems just. Eric D. Holland and Steven L. Groves of Holland, Groves, Schneller and Stolze in St. Louis and Brian L. Polinske of Polinske and Associates in Edwardsville will be representing him. St. Clair County Circuit Court case numbers: 11-L-666. OPFM CORP: Couple Ordered to Pay Restitution in Class Action ------------------------------------------------------------ Larry Alexander, writing for Lancaster Online, reports that a Lancaster County couple is among eight mortgage consultants ordered to pay restitution as a result of a $28 million class action lawsuit. Cheryl Ann and Kenneth Roger Bennetch of 180 N. Cocalico Road, Denver, were among the employees of the former OPFM Corp., a Berks County-based financial consulting firm that the Pennsylvania Attorney General's office said was engaged in a Ponzi-style scheme that bilked borrowers and investors of about $36 million. These acts allegedly included creating false monthly statements, making false promises and blocking documents, sent by other companies, that might have tipped off customers that something was amiss. Following a lengthy nonjury trial in Berks County, a judgment for restitution in the amount of $241,163 was entered against Cheryl Bennetch, who served as bookkeeper and office manager, and a judgment of $257,628 was filed against Kenneth Bennetch. Other individuals and restitution judgments were: * Jacquelyn Hepford-Rennie, of Lansdale, Montgomery County, $455,762. * Julie Ann Musser, of Sinking Springs, Berks County, $214,566. * Susan Louise Hunt, of Reading, $195,331. * Amy Lou Styer, of Birdsboro, Berks County, $127,697. All also are banned from working in the mortgage or financial investment field through Aug. 29, 2013. OPFM company president Wesley Snyder and his wife, Sydney, were ordered to pay $28,675,731 in restitution. Mr. Snyder is serving a prison sentence after pleading guilty to one count of mail fraud. The mortgage consultants, said the court ruling favoring the victims, failed to properly inform consumers of the possible risks in this scheme. According to the lawsuit, Mr. Snyder and his co-defendants encouraged customers to borrow more than was necessary to purchase their homes or refinance their mortgages. Consumers agreed to the larger loans based on the promise that the surplus borrowings would be invested by Snyder in order to reduce their interest rates and/or pay off their loans earlier than scheduled. However, the attorney generals office said much of the money supported company operating expenses and concealed millions of dollars in losses of Snyder's other enterprises. PACIFIC SUNWEAR: Awaits Ruling in Coordinated Wage and Hour Suit ---------------------------------------------------------------- Pacific Sunwear of California, Inc. is awaiting a court decision on its motion for judgment on the pleadings with respect to several causes of action in each of the three wage and hour lawsuits pending in California, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 29, 2011. On January 13, 2011, the plaintiff in Charles Pfeiffer, individually and on behalf of other aggrieved employees vs. Pacific Sunwear of California, Inc. and Pacific Sunwear Stores Corp., Superior Court of California, County of Riverside, Case No. 1100527, filed a lawsuit against the Company alleging violations of California's wage and hour, overtime, meal break and rest break rules and regulations, among other things. The complaint seeks an unspecified amount of damages and penalties. The Company has filed an answer denying all allegations regarding the plaintiff's claims and asserting various defenses. As the ultimate outcome of this matter is uncertain, no amounts have been accrued by the Company as of the date of this report. Depending on the actual outcome of this case, provisions could be recorded in the future which may have an adverse effect on the Company's operating results and cash flows. On March 21, 2011, the plaintiff in Phillip Gleason, on behalf of himself and others similarly situated vs. Pacific Sunwear of California, Inc., Superior Court of California, County of Los Angeles, Case No. 457654, filed a putative class action lawsuit against the Company alleging violations of California's wage and hour, overtime, meal break and rest break rules and regulations, among other things. The complaint seeks class certification, the appointment of the plaintiff as class representative, and an unspecified amount of damages and penalties. The Company has filed an answer denying all allegations regarding the plaintiff's claims and asserting various defenses. As the ultimate outcome of this matter is uncertain, no amounts have been accrued by the Company as of the date of this report. Depending on the actual outcome of this case, provisions could be recorded in the future which may have an adverse effect on the Company's operating results and cash flows. On March 18, 2011, the plaintiff in Tamara Beeney, individually and on behalf of other members of the general public similarly situated vs. Pacific Sunwear of California, Inc. and Pacific Sunwear Stores Corporation, Superior Court of California, County of Orange, Case No. 30-2011-00459346-CU-OE-CXC, filed a putative class action lawsuit against the Company alleging violations of California's wage and hour, overtime, meal break and rest break rules and regulations, among other things. The complaint seeks class certification, the appointment of the plaintiff as class representative, and an unspecified amount of damages and penalties. The Company has filed an answer denying all allegations regarding the plaintiff's claims and asserting various defenses. As the ultimate outcome of this matter is uncertain, no amounts have been accrued by the Company as of the date of this report. Depending on the actual outcome of this case, provisions could be recorded in the future which may have an adverse effect on the Company's operating results and cash flows. Since the allegations in both all three of the cases are substantially similar, the Company filed a motion to coordinate the cases in the Los Angeles Superior Court on April 20, 2011. That motion was granted on June 15, 2011. On October 14, 2011, the Company filed a motion for judgment on the pleadings with respect to several causes of action in each of the cases. A hearing on such motion was scheduled for December 9, 2011. PAMPERED CHEF: Recalls 20,000 Ice Cream Dippers ----------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with distributor, The Pampered Chef, of Addison, Illinois, and manufacturer, The Zeroll Company, of Fort Pierce, Florida, announced a voluntary recall of about 20,000 ice cream dippers. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. When the liquid-filled ice cream scoop is exposed to warm water, the cap and seal at the end of the scoop handle can fly off with substantial force, posing an impact injury hazard to nearby consumers. The Pampered Chef has received 16 reports including damage to kitchen items and six reports of personal injuries including lacerations, bruises and redness caused by caps coming off the base of the handle. The dippers are metallic gray aluminum with a plastic dome-shaped cap on the base of the handle. "Pampered Chef" is imprinted in the cap. The ice cream dippers measure around seven inches in length. A non-toxic liquid is sealed inside the handle of the product which conducts the heat of your hand to more easily scoop hard ice cream. Picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12062.html The recalled products were manufactured in the United States of America and sold by Pampered Chef consultants and online at http://www.pamperedchef.com/from July 2010 through September 2010 for about $15. Consumers should immediately stop using the recalled ice cream dippers and contact The Pampered Chef for instructions on obtaining a replacement or refund. Consumers can also contact their Pampered Chef consultant for replacement and refund information. For additional information, contact The Pampered Chef toll-free at (877) 917-2433 between 7:00 a.m. and 11:00 p.m. Central Time Monday through Friday and between 8:30 a.m. and 4:30 p.m. Central Time on Saturday or visit the firm's Web site at http://www.pamperedchef.com/recall/custinfo collection.jsp. Consumers can also e-mail The Pampered Chef at productalert@pamperedchef.com RCMP: May Face Class Action Over Sexual Harassment -------------------------------------------------- CBC News reports that A Thunder Bay, Ont. lawyer says he's close to filing a class-action lawsuit against the RCMP on behalf of current and former members who allege they've been victims of harassment and bullying by colleagues. Alexander Zaitzeff says a team of lawyers is working full time to prepare the lawsuit, and a statement of claim could be filed as early as Dec. 20. "My firm has been taking calls from across Canada . . . from members that have had a lifetime of harassment, bullying, and gender-based discrimination in the RCMP," said Mr. Zaitzeff, speaking publicly for the first time about the suit. He said the calls started with Thunder Bay resident Heli Kijanen, a former RCMP constable who contacted him after watching other women tell their stories on CBC News. "The types of harassment range anywhere from plain and ordinary bullying, if there's such a thing, all the way to sexual assault." Mr. Zaitzeff said. He has teamed up with a Vancouver lawyer to lead the lawsuit, which will name Attorney-General Rob Nicholson as the defendant. Mr. Zaitzeff wouldn't reveal how many women have signed on to the action so far but said the number grows daily and there could be hundreds in the end. Damages sought in the action could add up to hundreds of millions of dollars, he said. "They want to see fairness in the workplace. They hope for redress." Current and former Mounties began coming forward after Cpl. Catherine Galliford, a B.C. Mountie, told CBC News in early November that she suffered post-traumatic stress disorder after years of sexual harassment. SAIC INC: Facing Class Suits Over Loss of Computer Backup Tapes --------------------------------------------------------------- SAIC, Inc. is facing four purported class action lawsuits following the theft of computer backup tapes from a vehicle of an employee, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. The Company is a defendant in the following four purported class action lawsuits filed in October through December 2011: Richardson, et al. v. TRICARE Management Activity (TRICARE), Science Applications International Corporation, the U.S. Department of Defense, et al. in U.S. District Court in the District of Columbia; Adcock, et al. v. Science Applications International Corporation in the U.S. District Court for the Northern District of Florida; Arrellano, et al. v. Science Applications International Corporation in the U.S. District Court for the Western District of Texas; and Biggerman, et al. v. TRICARE, Science Applications International Corporation, U.S. Department of Defense, et al. in U.S. District Court in the District of Columbia. The lawsuits were filed following the theft of computer backup tapes from a vehicle of a Company employee. The employee was transporting the backup tapes between federal facilities under an IT services contract the Company was performing in support of TRICARE, the health care program for members of the military, retirees and their families. The tapes contained personally identifiable and protected health information of approximately five million military clinic and hospital patients. There is no evidence that any of the data on the backup tapes has actually been accessed or viewed by an unauthorized person. In order for an unauthorized person to access or view the data on the backup tapes, it would require knowledge of and access to specific hardware and software and knowledge of the system and data structure. The Company has notified potentially impacted persons by letter and is offering one year of credit monitoring services to those who request these services and in certain circumstances, one year of identity restoration services. The complaints in the four lawsuits vary in their allegations and causes of action against the Company and include allegations of negligence, breach of contract, implied breach of contract, invasion of privacy by public disclosure of private facts and statutory violations of the Fair Credit Reporting Act, the Federal Administrative Procedure Act and the Privacy Act of 1974. The complaints seek monetary relief, including unspecified actual damages, punitive damages, statutory damages of up to $1,000 for each class member and attorney's fees, as well as injunctive and declaratory relief. In the case filed in the U.S. District Court for the Northern District of Florida, the Company filed a motion to dismiss the lawsuit, which is pending before the court. The Company currently intends to file motions to dismiss the other three lawsuits. The Company has been informed that the Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS) is investigating the incident. OCR is the division of HHS charged with enforcement of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA) and the privacy, security and data breach rules which implement HIPAA (HIPAA Rules). OCR may, among other things, require a corrective action plan and impose civil monetary penalties against the data owner (Department of Defense) and, in certain situations, against the data owners' contractors, such as the Company. The Company says it intends to vigorously defend itself against the claims made in the class action lawsuits. The Company is cooperating with TRICARE in responding to the OCR investigation. At this time, the Company believes that a loss related to these lawsuits or the OCR investigation is reasonably possible, but the Company cannot reasonably estimate the range of potential loss that may result from these lawsuits or the investigation in light of the fact that these proceedings are in their early stages. As the proceedings progress, many factors will affect the ultimate amount of the potential loss if the Company is not successful in its defense in these proceedings, including the outcome of the Company's motions to dismiss, the results of discovery, if any, the outcome of any pretrial motions, the court's rulings on certain legal issues and OCR's review of compliance with HIPAA and the HIPAA Rules. An adverse outcome in these proceedings could have a material adverse effect on the Company's consolidated financial position, results of operations and cash flows. SHAKE-N-GO: Sued in N.Y. Over False Claims on Hair Extensions ------------------------------------------------------------- Courthouse News Service reports that a class action claims Shake- N-Go Fashion's hair extensions labeled as "100% human hair" "are not made entirely, if at all, of human hair." A copy of the Complaint in dela Cruz v. Shake-N-Go Fashion, Inc., Index No. 21758/2011E (N.Y. Sup. Ct., Bronx Cty.), is available at: http://www.courthousenews.com/2011/12/20/Wigged.pdf The Plaintiff is represented by: Catherine E. Anderson, Esq. Oren Giskan, Esq. GISKAN SOLOTAROFF ANDERSON & STEWART LLP 11 Broadway, Suite 2150 New York, NY 10004 Telephone: (212) 847-8315 - and - Chinsok (Young) Kim, Esq. THE LAW OFFICES OF CHINSOK KIM 163-10 Northern Boulevard, Suite 303 Flushing, NY 11358 Telephone: (718) 886-7811 SMITH & WESSON: Appeal From Class Suit Dismissal Remains Pending ---------------------------------------------------------------- An appeal from the dismissal of a consolidated securities class action lawsuit remains pending, according to Smith & Wesson Holding Corporation's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. The case known as In re Smith & Wesson Holding Corp. Securities Litigation is a consolidation of the following three cases: William Hwang v. Smith & Wesson Holding Corp., et al.; Joe Cranford v. Smith & Wesson Holding Corp., et al.; and Joanne Trudelle v. Smith & Wesson Holding Corp., et al. It was filed in the United States District Court for the District of Massachusetts (Springfield), and is a purported securities class action lawsuit brought individually and on behalf of all persons who purchased the securities of the Company between June 15, 2007, and December 6, 2007. The putative plaintiffs seek unspecified damages against the Company, certain of its officers, and the Company's directors for alleged violations of Sections 10(b) and 20(a) of the Exchange Act. The Oklahoma Firefighters Pension and Retirement System was appointed Lead Plaintiff of the putative class. On May 30, 2008, Lead Plaintiff filed a Consolidated Class Action Complaint seeking unspecified damages against the Company and several officers and directors for alleged violations of Sections 10(b) and 20(a) of the Exchange Act. On August 28, 2008, the Company and the named officers and directors moved to dismiss the Consolidated Amended Complaint because it failed to state a claim under the federal securities laws and the Private Securities Litigation Reform Act of 1995. The putative class Lead Plaintiff submitted its Opposition to the Company's motion on October 28, 2008. On March 26, 2009, the Company's motion was granted as to Mr. Monheit and denied as to the remaining defendants. On May 11, 2010, the court certified the consolidated action as consisting of a class of persons who purchased securities of the Company between June 15, 2007, and December 6, 2007, and suffered damage as a result. Court scheduled discovery concerning the facts of this action ended on May 28, 2010. Examination of any experts put forth by the parties ended on October 1, 2010. On October 29, 2010, the Company moved for summary disposition of the case. Lead Plaintiff opposed the Company's motion on November 22, 2010, and cross-moved for partial summary judgment. A hearing of this matter was held for December 20, 2010. On March 25, 2011, the court granted the Company's Motion for Summary Judgment as to all remaining defendants, and dismissed the consolidated actions with prejudice. The Lead Plaintiff filed its Notice of Appeal of that dismissal on April 21, 2011. The Lead Plaintiff has not appealed Mr. Monheit's dismissal and the time for such an appeal has now past. The Lead Plaintiff filed its Appellant Brief on July 5, 2011. The Company filed its Opposition to Appellant's Brief on August 22, 2011. On November 7, 2011, an appellate argument was heard before the First Circuit Court of Appeals. No decision has been issued. SOUTHSTAR ENERGY: Settles Class Action Over Price Plans ------------------------------------------------------- Plaintiffs Charles Ellison and Susan Bresler have reached an agreement with SouthStar Energy Services d/b/a Georgia Natural Gas (GNG) to settle a 2008 class action lawsuit filed in the Superior Court of Fulton County on behalf of themselves and current and former GNG customers. The settlement addresses issues related to specific price plans offered by GNG in 2006. The settlement agreement was preliminarily approved by the Court on Dec. 20. Affected GNG customers will receive information regarding their rights under the settlement. Qualified customers will receive a credit or payment of between $5 and $22.83 based on the price plan they were on, the length of time they were on the plan and whether they have outstanding balances on their GNG account. "We believe that this settlement is very good for Georgia consumers, and we worked very hard to ensure that the claims process is as simple as possible," said Jason R. Doss and Anne Lewis, lead counsel for the plaintiffs. While GNG expressly denies that it violated any Georgia law or regulation, GNG lead counsel Robert B. Remar said the company has agreed to the settlement in order to avoid the further expense and inconvenience of litigation. "GNG remains committed to providing its customers with safe, reliable natural gas service," said Mr. Remar. Mr. Doss is with The Doss Firm, LLC, and Lewis is with Strickland Brockington Lewis LLP. Mr. Remar is with Rogers & Hardin LLP. STUBHUB INC: Sued for Violating California Ticket Resale Law ------------------------------------------------------------ Matt Reynolds at Courthouse News Service reports that a New Jersey man filed a $5 million class action against StubHub, claiming he was denied admission to a Stone Temple Pilots show after buying a ticket through the online retailer's Web site. In his federal complaint, Joseph Fabozzi claims the San Francisco- based company violated California ticket resale law. He say he paid about $50 for his ticket and traveled to the Stone Pony in Asbury Park, N.J., to find that his ticket had been used by another fan. "Even though StubHub makes numerous 'guarantees' on its Web site that a ticket purchased by a buyer will be 'authentic' and 'valid for entry,' in reality, StubHub does not guarantee the fact that a ticket will be 'authentic' and 'valid for entry' at all," the complaint states. It continues: "The fine print in StubHub's FanProtect Guarantee reveals that StubHub does not guarantee that the tickets sold on its Web site will be 'authentic' and 'valid for entry' -- StubHub only guarantees that if a ticket is not honored by the venue, StubHub will refund the buyer cost of the ticket(s), including service fees and shipping and handling charges." Mr. Fabozzi says he paid $40 to an "unknown seller" through StubHub's online marketplace, plus almost $10 in fees. "On July 26, 2011, the plaintiff traveled to the Stone Pony and presented the ticket he purchased on StubHub to a ticket agent. However, the plaintiff was refused entry into concert because the ticket had already been used by another patron. "The plaintiff called StubHub while at the Stone Pony. StubHub advised the plaintiff that they could not provide him with another ticket to the event because they did not have any additional tickets to the event. "Subsequent to July 26, 2011, StubHub refunded the $49.95 that the plaintiff paid for the ticket," the complaint states. But Mr. Fabozzi says that class members are "entitled to damages equal to two times the contracted price of the ticket, in addition to any sum expended by them in nonrefundable expenses for attending or attempting to attend the event in good faith reliance on seat or space availability, and reasonable attorney's fees and court costs." He seeks damages for violations of the California Business and Professions Code. A copy of the Complaint in Fabozzi v. StubHub, Inc., Case No. 11- cv-06387 (N.D. Calif.), is available at: http://www.courthousenews.com/2011/12/20/StubHub.pdf The Plaintiff is represented by: Randall S. Newman, Esq. RANDALL S. NEWMAN, P.C. 37 Wall Street, Penthouse D New York, NY 10005 Telephone: (212) 797-3737 E-mail: rsn@randallnewman.net TALBOTS INC: Awaits Order on Bid to Dismiss "Washtenaw" Complaint ----------------------------------------------------------------- The Talbots, Inc. is awaiting a court decision on its and other defendants' motion to dismiss an amended complaint in the putative class action lawsuit commenced by Washtenaw County Employees' Retirement System, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 29, 2011. On February 3, 2011, a purported Talbots shareholder filed a putative class action captioned Washtenaw County Employees' Retirement System v. The Talbots, Inc. et al., Case No. 1:11-cv- 10186-NMG, in the United States District Court for the District of Massachusetts against Talbots and certain of its officers. The complaint, purportedly brought on behalf of all purchasers of Talbots common stock from December 8, 2009, through and including January 11, 2011, asserted claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder and sought, among other things, damages and costs and expenses. On July 27, 2011, the lead plaintiff filed an amended complaint which continues to assert claims under Sections 10(b) and 20(a) alleging certain false and misleading statements and alleged omissions related to Talbots' financial condition, inventory management and business prospects. The amended complaint alleges that these actions artificially inflated the market price of Talbots common stock during the class period, thus purportedly harming investors. On October 17, 2011, the Company and the remaining defendants filed a motion to dismiss all of the claims asserted in the amended complaint pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995. The Company believes that these claims are without merit and intends to defend against them vigorously. At this time, the Company cannot reasonably predict the outcome of these proceedings or an estimate of damages, if any. TIVO INC: Appeal in Consolidated IPO Class Suit Remains Pending --------------------------------------------------------------- An appeal relating to a settlement agreement in the consolidated securities class action lawsuit involving TiVo Inc. remains pending, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. On June 12, 2001, the Company and certain of its officers and directors ("TiVo defendants") were originally named as defendants in a consolidated securities class action lawsuit filed in the United States District Court for the Southern District of New York. This action, which is captioned Wercberger v. TiVo et al., also names several of the underwriters involved in the Company's initial public offering ("IPO") as defendants. This class action is brought on behalf of a purported class of purchasers of the Company's common stock from the time of the Company's IPO (October 31, 1999) through December 6, 2000. The central allegation in this action is that the underwriters in the Company's IPO solicited and received undisclosed commissions from, and entered into undisclosed arrangements with, certain investors who purchased the Company's stock in the IPO and the after-market, and that the TiVo defendants violated the federal securities laws by failing to disclose in the IPO prospectus that the underwriters had engaged in these allegedly undisclosed arrangements. More than 300 issuers have been named in similar lawsuits. In February 2003, after the issuer defendants (including the TiVo defendants) filed an omnibus motion to dismiss, the Court dismissed the Section 10(b) claim as to the Company, but denied the motion to dismiss the Section 11 claim as to the Company and virtually all of the other issuer defendants. On October 8, 2002, the Company's executive officers who were named as defendants in this action were dismissed without prejudice. On June 26, 2003, the plaintiffs in the lawsuit announced a proposed settlement with the Company and the other issuer defendants. This proposed settlement was terminated on June 25, 2007, following the ruling by the United States Court of Appeals for the Second Circuit on December 5, 2006, reversing the District Court's granting of class certification in the six focus cases currently being litigated in this proceeding. The proposed settlement had provided that the insurers of all settling issuers would guarantee that the plaintiffs recover damages from non-settling defendants, including the investment banks who acted as underwriters in those offerings. On August 14, 2007, the plaintiffs filed Amended Master Allegations. On September 27, 2007, the Plaintiffs filed a Motion for Class Certification, which was subsequently withdrawn without prejudice by the plaintiffs. Defendants filed a Motion to Dismiss the focus cases on November 9, 2007. On March 26, 2008, the Court ruled on the Motion to Dismiss, holding that the plaintiffs had adequately pleaded their Section 10(b) claims against the Issuer Defendants and the Underwriter Defendants in the focus cases. As to the Section 11 claim, the Court dismissed the claims brought by those plaintiffs who sold their securities for a price in excess of the initial offering price, on the grounds that they could not show cognizable damages, and by those who purchased outside the previously certified class period, on the grounds that those claims were time barred. This ruling, while not binding on the Company's case, provides guidance to all of the parties involved in this litigation. On April 2, 2009, the parties lodged with the Court a motion for preliminary approval of a proposed settlement between all parties to the consolidated action, including the Company and its former officers and directors, as well as numerous other companies and their officers and directors. Any direct financial impact of the proposed settlement is expected to be borne by the Company's insurers. The proposed settlement also provides for full releases for the defendants, including the Company and its former officers and directors. On June 12, 2009, the Federal District Court granted preliminary approval of the proposed settlement. On September 10, 2009, the Federal District Court held the fairness hearing for final approval of the settlement. On October 6, 2009, the District Court issued an order granting class certification and final approval of the settlement. Several individuals or groups of individuals have filed petitions to appeal and/or notices of appeal with the United States Court of Appeals for the Second Circuit. On May 17, 2011, the Second Circuit Court of Appeals dismissed the appeals of all but one objector to the settlement, whose matter was remanded to the District Court. On August 25, 2011, the District Court held on remand that the remaining objector was not a member of the settlement class. On September 23, 2011, the remaining objector appealed the District Court's August 25, 2011 ruling to the Second Circuit Court of Appeals. The Company says there can be no assurance that the District Court's approval of the settlement and exclusion of the remaining objector from the class will not be overturned by the Second Circuit Court of Appeals. The Company may incur expenses in connection with this litigation that may become material in the future. No loss is considered probable or estimable at this time. UNITED STATES: Immigration Detainees Get Class-Action Status ------------------------------------------------------------ A federal court in California has granted class-action status to a group of unrepresented immigration detainees with mental disabilities, an important step in helping ensure they get access to legal counsel. The ruling comes in response to a lawsuit filed last year on behalf of a group of detainees, including Jose Antonio Franco Gonzales, a Mexican immigrant with moderate mental retardation who was detained in federal immigration facilities for over four years without a hearing. Judge Dolly Gee of the U.S. District Court for the Central District of California found that the problems identified in the lawsuit are systemic, and there is no mechanism for evaluating whether immigration detainees with mental disabilities are able to represent themselves. Ahilan Arulanantham, deputy legal director of the ACLU of Southern California, said: "The sad fact is that the government refuses to systematically track the many detainees with mental disabilities who are lost in immigration detention centers, unable to represent themselves or even to understand why they're there. [Tues]day's ruling will allow us to shed light on this most vulnerable population within our broken immigration detention system." About 33,000 immigrants are detained daily and government estimates indicate that over 1,000 of them have mental disabilities. The government has no procedure to resolve their cases, including for individuals who are unable to understand the proceedings against them due to severe mental disabilities. The ruling, which was unsealed by the judge on Dec. 20, applies to cases in Arizona, California and Washington. "Immigration detainees should not be languishing in custody merely because they are unable to represent themselves," said Judy Rabinovitz, deputy director of the ACLU Immigrants' Rights Project. "Thanks to this ruling, thousands of immigration detainees with mental disabilities who have been forced to defend themselves will finally have a chance to obtain their day in court." Public Counsel Law Center staff attorney Talia Inlender, who is representing Mr. Franco in his immigration proceedings, said: "Imagine being held in jail, sometimes for years, without even a basic understanding of why you are there. That's the reality for too many immigrants with severe mental disabilities. [Tues]day, we move a step closer to providing these immigrants and their families with the due process that our law requires and that our conscience demands." Michael H. Steinberg, of Sullivan & Cromwell LLP, who argued the motion before Judge Gee, said: "It is profoundly disturbing that the government continues to pretend that this helpless population needs no assistance. With a class now certified, it will be much more difficult for the Department of Justice and the Department of Homeland Security to avoid what is clearly a problem that must be addressed." The ACLU of San Diego & Imperial Counties, the ACLU of Arizona, the Northwest Immigrant Rights Project and Mental Health Advocacy Services have also been involved in the case and represent the class. USP LABS: Faces Class Action for Selling Adulterated Drugs ---------------------------------------------------------- Courthouse News Service reports that a federal class action claims USP Labs sells dangerous, illegal and adulterated drugs under the names Jack3d and OxyElite Pro. Similar class actions challenge Maximum Human Performance dba Xero Limits drug Novatest, and LG Sciences' Methyl 1-D. A copy of the Complaint in Pacheco v. USPLabs, LLC, et al., Case No. 11-cv-02015 (C.D. Calif.), is available at: http://www.courthousenews.com/2011/12/20/DietSuppLead.pdf The Plaintiff is represented by: Scott J. Ferrell, Esq. James B. Hardin, Esq. Ryan M. Ferrell, Esq. NEWPORT TRIAL GROUP 895 Dove Street, Suite 425 Newport Beach, CA 92660 Telephone: (949) 706-6464 E-mail: sferrell@trialnewport.com jhardin@trialnewport.com rferrell@trialnewport.com WALGREEN CO: Faces Class Action Over Illegal Health Record Fees --------------------------------------------------------------- Joe Harris at Courthouse News Service reports that Walgreens charges an illegal $55 flat fee for copies of health-care provider records, an unhappy customer claims in a class action. A copy of the Complaint in Griggs v. Walgreen Co., Case No. 11L685 (Ill. Cir. Ct., St. Clair Cty.), is available at: http://www.courthousenews.com/2011/12/20/Walgreen.pdf The Plaintiff is represented by: Corey D. Sullivan, Esq. John J. Carey, Esq. Francis J. "Casey" Flynn, Jr., Esq. Tifanny M. Yiatris, Esq. CAREY, DANIS & LOWE 8235 Forsyth Boulevard, Suite 1100 Saint Louis, MO 63105-1643 Telephone: (314) 725-7700 E-mail: csullivan@careydanis.com jcrey@careydanis.com casey@jefflowepc.com tyiatras@careydanis.com WAL-MART STORES: Defends New Gender Discrimination Suit in Texas ---------------------------------------------------------------- Wal-Mart Stores, Inc., is defending a new gender discrimination lawsuit in Texas, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. The Company is a defendant in Dukes v. Wal-Mart Stores, Inc., USDC, Northern Dist. of CA, San Francisco Div., 6/19/01; 9th Circuit Ct. of Appeals, San Francisco, CA, 8/26/04; US Supreme Court, Washington DC, 8/25/10, which was commenced as a class- action lawsuit in June 2001 in the United States District Court for the Northern District of California, asserting that the Company had engaged in a pattern and practice of discriminating against women in promotions, pay, training, and job assignments, and seeking, among other things, injunctive relief, front pay, back pay, punitive damages, and attorneys' fees. On June 21, 2004, the district court issued an order granting in part and denying in part the plaintiffs' motion for class certification. As defined by the district court, the class included "[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices." The Company appealed the order to the Ninth Circuit Court of Appeals and subsequently to the United States Supreme Court. On June 20, 2011, the Supreme Court issued an opinion decertifying the class and remanding the case to the district court. On October 27, 2011, the plaintiffs' attorneys filed an amended complaint proposing a statewide class of current and former female associates at the Company's retail facilities in California. On October 28, 2011, the plaintiffs' attorneys filed a complaint in the United States District Court for the Northern District of Texas entitled Odle v. Wal-Mart Stores, Inc., USDC, Northern Dist. of TX, Dallas Div., 10/27/11, asserting that the Company had engaged in a pattern and practice of discriminating against women in promotions, training, and job assignments, and proposing a class of current and former female associates at Texas retail facilities. While management cannot predict the ultimate outcome of these matters, management does not believe the outcome will have a material effect on the Company's financial condition or results of operations. WAL-MART STORES: Petition in "Braun/Hummel" Suit Remains Pending ---------------------------------------------------------------- Wal-Mart Stores, Inc.'s petition for allowance of appeal in the "Braun/Hummel" class action lawsuit remains pending in Pennsylvania, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. The Company is a defendant in Braun/Hummel v. Wal-Mart Stores, Inc., Ct. of Common Pleas, Philadelphia County, PA, 3/20/02 & 8/30/04; Superior Ct. of PA, Eastern Dist., Philadelphia, PA, 12/07/07; Supreme Court of PA, Harrisburg, PA, 10/09/11, a class action lawsuit commenced in March 2002 in the Court of Common Pleas in Philadelphia, Pennsylvania. The plaintiffs allege that the Company failed to pay class members for all hours worked and prevented class members from taking their full meal and rest breaks. On October 13, 2006, a jury awarded back-pay damages to the plaintiffs of approximately $78 million on their claims for off-the-clock work and missed rest breaks. The jury found in favor of the Company on the plaintiffs' meal-period claims. On November 14, 2007, the trial judge entered a final judgment in the approximate amount of $188 million, which included the jury's back-pay award plus statutory penalties, prejudgment interest and attorneys' fees. By operation of law, post-judgment interest accrues on the judgment amount at the rate of six percent per annum from the date of entry of the judgment, which was November 14, 2007, until the judgment is paid, unless the judgment is set aside on appeal. The Company believes it has substantial factual and legal defenses to the claims at issue, and on December 7, 2007, the Company filed its Notice of Appeal. The Company filed its opening appellate brief on February 17, 2009, plaintiffs filed their response brief on April 20, 2009, and the Company filed its reply brief on June 5, 2009. Oral argument was held before the Superior Court of Appeals on August 19, 2009. On June 10, 2011, the Superior Court of Appeals issued an opinion upholding the trial court's certification of the class, the jury's back pay award, and the awards of statutory penalties and prejudgment interest, but reversing the award of attorneys' fees and remanding it back to the trial court for a downward adjustment. On July 10, 2011, the Company filed an Application for Rehearing En Banc with regard to the portions of the opinion that held in favor of the plaintiffs, which was denied on August 11, 2011. On September 9, 2011, the Company filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. The plaintiffs filed a response on September 23, 2011, and the Company filed a reply brief on September 30, 2011. The Company believes it has substantial factual and legal defenses to the claims at issue, and plans to continue pursuing appellate review. WAL-MART: Faces Class Action Over Unpaid Overtime Wages ------------------------------------------------------- Courthouse News Service reports that a Los Angeles Superior Court class action claims Wal-Mart stiffs workers for overtime and for regular hours and fails to itemize pay statements. WARNER MUSIC: Digital Music Pricing Suit Remains Pending in N.Y. ---------------------------------------------------------------- On December 20, 2005, and February 3, 2006, the Attorney General of the State of New York served Warner Music Group Corp. with requests for information in connection with an industry-wide investigation as to the pricing of digital music downloads. On February 28, 2006, the Antitrust Division of the U.S. Department of Justice served the Company with a Civil Investigative Demand, also seeking information relating to the pricing of digitally downloaded music. Both investigations were ultimately closed, but subsequent to the announcements of the investigations, more than thirty putative class action lawsuits were filed concerning the pricing of digital music downloads. The lawsuits were consolidated in the Southern District of New York. The consolidated amended complaint, filed on April 13, 2007, alleges conspiracy among record companies to delay the release of their content for digital distribution, inflate their pricing of CDs and fix prices for digital downloads. The complaint seeks unspecified compensatory, statutory and treble damages. On October 9, 2008, the District Court issued an order dismissing the case as to all defendants, including the Company. However, on January 12, 2010, the Second Circuit vacated the judgment of the District Court and remanded the case for further proceedings and on January 10, 2011, the Supreme Court denied the defendants' petition for Certiorari. Upon remand to the District Court, all defendants, including the Company, filed a renewed motion to dismiss challenging, among other things, plaintiffs' state law claims and standing to bring certain claims. The renewed motion was based mainly on arguments made in defendants' original motion to dismiss, but not addressed by the District Court. On July 18, 2011, the District Court granted defendants' motion in part, and denied it in part. The case will proceed into discovery, based on a schedule to be determined by the District Court. No further updates were reported in the Company's December 8, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2011. The Company says it intends to defend against these lawsuits vigorously, but is unable to predict the outcome of these lawsuits. Regardless of the merits of the claims, this and any related litigation could continue to be costly, and divert the time and resources of management. WESTPAC BANKING: To Defend Class Action Over Late Payment Fees -------------------------------------------------------------- Westpac Banking Corp. on Dec. 20 said it has received a legal claim alleging that some of the fees it charged customers prior to October 2009 were unlawful. Australia's second-biggest bank by market value said it does not accept the claims and intends to defend the proceedings. It said it received the statement of claim on Dec. 20 in proceedings that commenced in Australia's Federal Court last month. "The claim against Westpac is one of a series of class actions against Australian banks announced by the litigation funding company IMF (Australia) Ltd. in May 2010," the bank said in a statement. "Westpac does not accept the claims that are set out in the Statement of Claim received [Tues]day, and intends to defend the proceedings." An Australian Federal Court judge earlier this month found late payment fees charged by Australia & New Zealand Banking Group Ltd. could be considered penalties, paving the way for customers to pursue a possible class action against the bank and other lenders. Attorneys representing about 34,000 ANZ customers have argued a variety of exception fees charged by the bank were excessive and should be repaid. WILL COUNTY: Sued Over Time-Consuming Security Lines ---------------------------------------------------- Jack Bouboushian at Courthouse News Service reports that an out- of-county attorney sick of watching members of the Will County Bar stroll into a courthouse, while he and other nonmembers wait in "long, time-consuming security lines with the general public," filed a federal class action against the Will County Sheriff and the county Bar Association. Gary Peterlin, of LaSalle County -- two counties west of Will -- says the defendant Will County Sherriff's Office recently began requiring attorneys who are not a member of the Will County Bar Association to "wait in long, time-consuming security lines with the general public and pass through metal detection equipment subjecting the attorneys to a search of their person and belongings." Mr. Peterlin, who says the new rule violates the Equal Protection Clause of the 14th Amendment, seeks a return to better days. For many years, lawyers could enter the Will County Courthouse without going through security by displaying a card issued by the Attorney Registration and Disciplinary Commission, he says. Now, alas, out-of-county attorneys must go through screening, while Will County Bar Association members "have the freedom and privilege to access the courthouse through a separate, exclusive entrance and bypass security for no other reason than they have paid expensive membership dues, a mandatory legal aid assessment and an optional bar association identification care fee," Mr. Peterlin says. One time, Mr. Peterlin says, after waiting in line, he was turned away from the courthouse "because he had a mobile phone that contained a camera component. Upon his return, he proceeded in the security line all over again." Mr. Peterlin claims that he and several other attorneys "have been forced to purchase membership in the Will County Bar Association, an organization they would not otherwise join, to their expense and financial detriment just for the privilege of bypassing the security procedures of the Will County Courthouse." Upon joining, he says, the Will County Bar Association told him "that he could benefit from other privileges not conferred upon the disfavored group of attorneys, including the ability to bring recording devices, cell phones, and cameras into the courthouse." Mr. Peterlin insists that "the distinctions between the two groups of lawyers bear no rational relationship to promoting and securing courthouse safety or any other legitimate governmental purpose, leading the policies and procedures of the defendants to violate the Equal Protection Clause." He asks the court to enjoin the Will County Sheriff's Department from enforcing the discriminatory policy. Will County's seat is Joliet. A copy of the Complaint in Peterlin v. Will County Sheriff's Office, et al., Case No. 11-cv-8922 (N.D. Ill.), is available at: http://www.courthousenews.com/2011/12/20/WillCtyLawyer.pdf The Plaintiff is represented by: Morgan C. Pytynia-Klein, Esq. LAW OFFICES OF PETER F. FERRACUTI, P.C. 110 East Main Street Ottawa, IL 61350 Telephone: (815) 434-3535 ZALE CORP: Plaintiffs' Appeal in Consolidated Suit Pending ---------------------------------------------------------- Plaintiffs have appealed the dismissal of their consolidated class action lawsuit against Zale Corporation, the Company disclosed on its December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. In November 2009, the Company and four former officers, Neal L. Goldberg, Rodney Carter, Mary E. Burton and Cynthia T. Gordon, were named as defendants in two purported class-action lawsuits filed in the United States District Court for the Northern District of Texas. On August 9, 2010, the two lawsuits were consolidated into one consolidated lawsuit, which alleged various violations of securities laws arising from the financial statement errors that led to the restatement completed by the Company as part of its Annual Report on Form 10-K for the fiscal year ended July 31, 2009. The lawsuit requests unspecified damages and costs. On August 1, 2011, the Court dismissed the lawsuit with prejudice. The plaintiffs have appealed the decision. The Company says it intends to vigorously defend the dismissal, however, the Company cannot predict the outcome of the lawsuit and cannot estimate the damages, if any, that the Company may incur in connection with this matter. Asbestos Litigation ASBESTOS UPDATE: Red Cross Will Decide on Chadha in January ----------------------------------------------------------- The Mesothelioma Center reports that amid mounting pressure, the Canadian Red Cross likely will ask for the resignation of executive board member Roshi Chadha next month because of her strong link to the asbestos industry. Chadha is an executive for Seja Trade Ltd, a shipping company that exports raw asbestos from Quebec. Seja Trade also is a subsidiary of Balcorp., which is awaiting a controversial, $58 million government loan guarantee to re-open an asbestos mine in Jeffrey. The president of Balcorp is Baljit Chadha, the husband of Roshi. "It's really hypocritical of her to be on the board of the Red Cross, which is a wonderful organization. If she doesn't resign, they should remove her," anti-asbestos advocate Stacy Cattran told The Mesothelioma Center. "I think the Red Cross will do the right thing." The Red Cross is considered the world's leading humanitarian organization, providing much-needed disaster relief both at home and abroad, often to developing countries where the asbestos is being shipped. The Red Cross also has been assisting victims of mesothelioma in Canada, including the father of Cattran, who died in 2008, just three months after being diagnosed. Her father died at age 72 after working much of his career as an electrician, where he was exposed to asbestos for many years. "Having someone on the board who supports the export of asbestos just flays in the face of their mission," Cattran said. "They support saving lives, not ending them with asbestos." Although the use of asbestos has been restricted dramatically in both the United States and Canada, Balcorp is hoping to capitalize on the growing demand for it in India and Asia. The last two asbestos mines in Canada were temporarily closed in November, although Balcorp is making plans to reopen at least one of them again. Much of the asbestos production in the world now comes from Russia, Kazakhstan, China and Brazil. Canadian asbestos often has been viewed as a higher quality than that coming from other countries. The mining of asbestos stopped in the United States in 2002, but 820 metric tons were imported in the first half of 2010, according to the U.S. Geological Survey, and much of it came from Canada. Cattran is a co-founder of Canadian Voices of Asbestos Victims, which joined with the U.S.-based Asbestos-Disease Awareness Group to present an official Declaration to both President Barack Obama and Prime Minister Stephen Harper to support a North America ban on asbestos. Christopher Hilton, a spokesman for the Canadian Red Cross, told the Vancouver Sun that his organization will consider the concerns raised by anti-asbestos activists at a board meeting in January. "It's a matter for the board," Hilton said. "I'm not going to presuppose what the board is going to do." According to the Sun, Chadha was elected to the Red Cross Board of Directors in 2008. She is one of four at-large members on the 16- person board. She also is on the board of directors for St. Mary's Hospital Foundation and at McGill University Health Centre. The asbestos issue in Canada generates considerable more debate than it does in the United States, at least partially because the Conservative Party has supported it with subsidies. The Canadian government also blocked the listing of chrysotile asbestos on the Hazardous Materials list of the Rotterdam Convention this summer in Geneva, Switzerland. Putting asbestos on that list would have made it more difficult to export, allowing importing counties to refuse acceptance of it if they thought the asbestos could not be handled safely. ASBESTOS UPDATE: Law Firm Reports Hike in Mesothelioma Cases ------------------------------------------------------------ The head of an Australian lobby group recently warned that the number of victims of asbestos-related diseases within that country could rise in coming years. The same problem exists in the U.S., said New York mesothelioma lawyer Joseph W. Belluck. Belluck is a partner with the New York personal injury law firm of Belluck & Fox, LLP. The firm represents victims of mesothelioma, a fatal cancer that has been directly linked to asbestos exposure. "The reality is that asbestos-related diseases such as mesothelioma can take 20-40 years or longer to develop after the victim's first exposure to this toxic mineral," Belluck said. "Asbestos was widely used in the U.S. and around the globe in the military, construction and manufacturing, and many current mesothelioma sufferers may have been exposed during that period," he continued. The head of Australia's Asbestos Disease Foundation, Barry Robson, issued a warning against becoming "complacent" toward diseases such as mesothelioma prior to the country's Asbestos Awareness Day, according to Sydney's 9 News. "Ask most Aussies and they'll tell you that asbestos-related disease in this country must be on the decline," Robson said. "Unfortunately, most Australians would be dead wrong." Because the history of asbestos use in the U.S. is similar to that of countries such as Australia, the same situation exists in this country, Belluck said. He pointed to a 2005 report by the U.S. Centers for Disease Control and Prevention. The CDC found that more than 18,000 mesothelioma deaths had occurred in the U.S. between 1999 and 2005 -- a rate of roughly 3,000 per year. The CDC noted that "the annual number of mesothelioma deaths is still increasing, and future cases will continue to reflect the extensive past use of asbestos." "What's important to know is that if you or a family member has a disease that was caused by asbestos exposure, you do have legal options available to you," Belluck said. Belluck said it is important for people to contact a New York mesothelioma lawyer if they believe that they or a family member has been diagnosed with mesothelioma. Compensation is often available to victims of mesothelioma who file claims, he said, and there are legal remedies to help mesothelioma sufferers pay for their medical bills and treatments. About Belluck & Fox Belluck & Fox, LLP, is a nationally recognized law firm that represents individuals with asbestos and mesothelioma claims, as well as victims of crime, motorcycle crashes, lead paint and other serious injuries. The firm provides personalized and professional representation and has won over $400 million in compensation for clients and their families. Partner Joseph W. Belluck is AV-rated by Martindale-Hubbell and is listed in Best Lawyers in America, New York Magazine's "Best Lawyers in the New York Area" and in Super Lawyers. Mr. Belluck has won numerous cases involving injuries from asbestos, defective medical products, tobacco and lead paint, including a recent asbestos case that settled for more than $12 million. Partner Jordan Fox is a well-known asbestos and mesothelioma attorney who has been named to the Best Lawyers in America, New York Magazine's "Best Lawyers in the New York Area" and to Super Lawyers. On two separate occasions his verdicts were featured as the National Law Journal's Largest Verdict of the Year. He recently secured verdicts of $32 million and more than $19 million on behalf of individuals who had contracted mesothelioma from asbestos exposure. In September, Belluck & Fox, LLP, won a coveted spot on a list of America's best law firms, which was published jointly by U.S. News & World Report and Best Lawyers magazine. The listing showcased 8,782 different law firms ranked in one or more of 81 major practice areas. ASBESTOS UPDATE: Ex-James Hardie Units Pay AU$300,000 to Ex-Worker ------------------------------------------------------------------ The Australian Associated Press reports that a James Hardie asbestos victim will receive more than AU$300,000 compensation, after the High Court dismissed an appeal against the award. In 2008, the Dust Diseases Tribunal ruled that John Booth was exposed to white asbestos from brake pads while working as a mechanic for two former James Hardie companies, now known as Amaca Pty Ltd. and Amaba Pty Ltd. Mr. Booth, 74, now suffers from malignant pleural mesothelioma. He argued that Amaca and Amaba were responsible for his illness because they failed to warn about the dangers of their brake linings. The Dust Diseases Tribunal awarded him compensation of AU$326,640. Amaca and Amaba unsuccessfully appealed that decision in the NSW Court of Appeal, before taking the case to the High Court. The companies argued that because Mr. Booth had three brief exposures to asbestos as a child it was not possible to pinpoint the exposure that caused the mesothelioma. However, the High Court ruled there was sufficient evidence to uphold the original verdict that brake linings containing asbestos manufactured by Amaca and Amaba caused Mr. Booth's illness. The compensation will be taken from a Special Purpose Fund set up by James Hardie in 2005 to cover asbestos claims against Amaca and Amaba. ASBESTOS UPDATE: Judge Crowder to Return Campaign Donations ----------------------------------------------------------- The Associated Press reports on the Chicago Tribune News that a judge says she'll return $30,000 in campaign donations that caused her to be removed from her assignment hearing all of the asbestos cases in her southwestern Illinois county. Madison County Circuit Judge Barbara Crowder denies there's any link between the contributions made by asbestos law firms and her decisions as the asbestos judge. But the Belleville News-Democrat reports -- http://bit.ly/rWhoS4 -- that Crowder acknowledged in a statement on Dec. 14 that the "unfortunate timing could provoke some to suspect that something inappropriate had occurred." Judge Crowder was relieved of the asbestos cases on Dec. 13, and her cases were given to Associate Judge Clarence Harrison. The county's chief judge, Ann Callis, says she transferred the cases away from Crowder, in consultation with circuit judges, "to maintain the public trust in a fair and unbiased judiciary." ASBESTOS UPDATE: Judge Replaced After Receiving Contributions ------------------------------------------------------------- Kevin Bersett at News-Democrat, reporting on BND.Com, relates that Madison County Circuit Judge Barbara Crowder was dropped on Dec. 13 from hearing all asbestos cases less than a week after her campaign committee received $30,000 in contributions from three metro-east asbestos law firms. On Dec. 1, Crowder, the county's sole asbestos judge, signed a preliminary order that gave the three firms the majority of the trial slots for the 2013 asbestos docket. Four days later, two lawyers each from Gori, Julian and Associates and the Goldenberg, Heller, Antognoli and Rowland law firms contributed $5,000 to Friends of Barbara Crowder. On Dec. 6, 10 lawyers from the Simmons Law Firm each made $1,000 contributions, according to the Illinois State Elections Board. Crowder and Lawrence Taliana, her husband and campaign committee chairman, could not be reached for comment. Representatives of the law firms, all of which represent plaintiffs in asbestos- exposure cases, could not be reached for comment. Chief Judge Ann Callis, in an order signed on Dec. 13, assigned all asbestos cases to Associate Judge Clarence Harrison. "A situation was brought to my attention, and following consultation with the circuit judges we unanimously decided to change some civil assignments to maintain the public trust in a fair and unbiased judiciary," Callis said. Callis would not comment further on the case or whether a complaint has been filed with the Illinois Judicial Inquiry Board. The board investigates cases of judicial misconduct, which become public only when the board files a complaint with the Courts Commission. Ed Murnane, president of the Illinois Civil Justice Leage, a business-backed interest group, said: "Without knowing all the details, it is exactly the kind of conduct that causes citizens to lose faith in the judicial system and their judges." Mr. Murnane said plaintiff lawyers use the trial slots as a national marketing tool. "You can sell the fact to a prospective client that you already have time in a courtroom," he said. Madison County has repeatedly made the list of a pro-business group's annual compilation of the nation's "Judicial Hellholes," mostly for accepting a high number of asbestos cases, many of which, critics claim, are filed by plaintiffs with no connection to Illinois. Crowder has been reassigned to hear all chancery, miscellaneous remedies and eminent domain cases. She had been the asbestos judge since July 2010 when she replaced former Circuit Judge Daniel Stack in that role. Judge Crowder, a Democrat, has been a circuit judge since 2006 and is up for retention in November. The Illinois Judicial Conduct Code does not explicitly prohibit judges' campaign committees from accepting contributions from legal firms. The code does state, however, that judges should conduct themselves "in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Mr. Murnane said common sense should have told Crowder that she should not take contributions from asbestos plaintiff attorneys. "The court of common sense, the court of fairness would suggest this was a terrible blunder on the part of Judge Crowder," Murnane said. ASBESTOS UPDATE: Red Flagged Abatement Co. Violates Again --------------------------------------------------------- Vivian Luk of The Province reports that a New Westminster resident is angry that an asbestos-laden house was demolished near his apartment with no apparent concern for public safety. Randy Tkach said he woke up to the sounds of a house being torn down on Nov. 30. When he looked outside, he saw a man demolishing a home with a backhoe. Dust was shooting everywhere, there were no barricades, and the man was working alone, said Tkach. "It was just a guy with a machine, ripping a house apart," he said. "I immediately thought of a lot of things, particularly asbestos." Tkach, 35, said the house that was being demolished was built in the 1950s or '60s and is surrounded by newer apartments, commercial buildings and restaurants. He said he notified WorkSafe B.C., but by the time inspectors came the next day, the construction worker had already demolished another house. WorkSafe B.C. spokeswoman Megan Johnston said the work site, which included three houses in the 300-block Ward Street was shut down. One of four samples taken from the site tested positive for asbestos. The demolition contractor, Taha & Sons Site Services Ltd. based in Richmond, was served orders to produce a safety assessment. "The site's going to remain closed until the safety issue is addressed," Johnston said. "There has to be an acceptable hazardous material survey before work can proceed, and this employer has not provided that to WorkSafeBC." Taha & Sons could not be reached for comment. According to B.C. Online, the company is "not in good standing." Its last annual report was filed in 2010. In 2010, the operator of an asbestos and drywall removal company was found in contempt for defying a court order to stop his business. WorkSafe B.C. found that Arthur Moore had employed 14- year-old recovering addicts to demolish asbestos-laden houses without protective gear. Moore operated in Richmond, Surrey and Delta. WorkSafe B.C. lawyers are currently seeking a jail sentence. Asbestos was the biggest cause of work-related deaths in B.C. in 2009, according to WorkSafe B.C. Mr. Tkach, a safety officer, knows this well. "What really bothered me is I got a nine-month pregnant wife, and we're supposed to have a baby sleeping right off the back [of the house] where this is happening," he said. "Until this is resolved, we're going to be taking the baby somewhere else to sleep." ASBESTOS UPDATE: Mesothelioma Law Firm Sends Warning to Mechanics ----------------------------------------------------------------- Mesothelioma attorneys Clapper Patti Schweizer & Mason have recently updated the asbestos containing products section of their Web site, and send out a warning to both commercial and home mechanics to be aware of the dangers of being exposed to asbestos during repairs or parts replacement. CPSM wants mechanics to be aware of three things that could literally save their lives. First, did you know that in the United States alone, more than 150,000 mechanics have been exposed to asbestos during repair or replacement of automotive brakes and clutches? Second, because asbestos was so heat and fire resistant as well as affordable, it was added to many of the following automotive parts: -- Brake linings, gaskets, and disk pads -- Clutches -- Heat seals and valve rings -- Hood linings -- Car body filters -- Car exhaust systems Many of the cars worked on today still have brakes and clutches that contain asbestos. During repair of brakes or clutches, the risk of disturbing intact asbestos products is very high. Once disturbed, microscopic asbestos fibers can be released into the air. If inhaled or ingested, the fibers can lodge into the lining of the body's internal organs and decades later develop into mesothelioma and other fatal asbestos related diseases. Third, there are recommended safe practices for both commercial and home mechanics to follow in order to avoid dangerous exposure to asbestos. The Environmental Protection Agency released a booklet in 2007, Current Best Practices for Preventing Asbestos Exposure Among Brake and Clutch Repair Workers, which lists OSHA's recommendations of how to safely work on cars that contain asbestos parts. The recommendations for commercial shops vary depending on the number of brake and clutch jobs performed each week. There are separate suggestions for home mechanics and auto enthusiasts. Lastly, if you are a brake mechanic and have been diagnosed with mesothelioma, you have a right to file an asbestos lawsuit and receive compensation from the manufacturers of the products responsible for your illness. For over 30 years, the mesothelioma lawyers at Clapper Patti Schweizer & Mason have represented mechanics who are suffering from mesothelioma and won significant settlements on their behalf. Call today for a free case evaluation or visit our Web site for a full list of products containing asbestos. About Clapper Patti Schweizer & Mason CPSM is one of the leading mesothelioma law firms in the nation and unique in its exclusive focus and years of experience in asbestos litigation. For over three decades, CPSM has consistently and repeatedly won hundreds of millions of dollars for their clients who have been exposed to and injured by asbestos. ASBESTOS UPDATE: Violations Listed in Central Bank Abatement ------------------------------------------------------------ Dennis Carcamo of the Philippine Star reports that a labor group called on the Department of Labor and Employment to order the immediate removal and disposal of cancerous asbestos and asbestos- containing materials at the Banko Sentral ng Pilipinas building in Manila. The Associated Labor Unions said the continuous exposure of the BSP employees to asbestos can be hazardous to their health. "This is to bring to your attention and immediate intervention on the possible exposure of asbestos disposal workers and the thousands of employees of Bangko Sentral ng Pilipinas in Manila for improper removal of asbestos from its building," ALU national vice president Gerard Seno said in his letter to Secretary Rosalinda Baldoz and BSP governor Amando Tetangco, Jr. dated Dec. 12, 2011. Seno also cited witnesses accounts, photos and video of workers on-site taken during BSP renovation and repair work, showing the alleged blatant safety removal and disposal protocol violations by Safeco Environmental Services Inc. Some of the health and safety violations were: (1) workers doing actual removal and disposal work are not wearing proper and sufficient personal, protective equipment which would protect them from primary and secondary exposure to asbestos dust, (2) the two sites in which abatement activities are being done were devoid of enclosures and air devices that ensures asbestos dusts are confined within, (3) the plastic container and vacuum cleaner used in the procedure are improper and sub-standard, and (4) the labeling of asbestos and asbestos-containing debris is deplorable. Seno said the contractor must be held liable for this serious safety lapses that endangers the lives of BSP employees, Safeco workers, and to BSP's highly populated surrounding neighborhood, Seno added. Around 100 Safeco workers worked on rotation since the renovation began on January this year while there about 4,000 regular and contractual BSP employees. Asbestos in BSP are located in ceilings as insulators against changing weather. It is also used to coat pipes and steel trusses. Primary symptoms of asbestos-related diseases includes shortness of breath, wheezing, persistent cough that gets worse over time, blood in the sputum coughed up from the lungs, pain or tightening in the chest, difficulty swallowing, swelling of the neck or face, loss of appetite, weight loss, fatigue, and anemia. These are apparent 10 to 30 years later after exposure, Seno said. ASBESTOS UPDATE: Pay-outs to Pleural Plaques Victims Restored ------------------------------------------------------------- The Belfast Telegraph reports that victims of an asbestos-related condition will again be able to claim compensation after the Assembly reversed a decision to end payouts. The Assembly has passed The Damages (Asbestos Related Conditions) Bill NI which restores the right to claim compensation for pleural plaques, caused by asbestos. It could result in sufferers claiming up to GBP15,000 in damages. The right to claim compensation for pleural plaques was ended by the House of Lords in 2007. The reinstated right to claim damages for the condition will affect people in Northern Ireland, who have been diagnosed with pleural plaques and who regard the condition as a physical marker of irreversible asbestos-induced damage to their lungs. Pleural plaques seldom cause symptoms, but many with the condition worry that they may develop a fatal illness. Derek Kane -- enquiries@thompsons.law.co.uk -- from solicitors, Thompsons McClure, said: "This is the moment pleural plaques sufferers and asbestos campaigners in Northern Ireland have been waiting for. "The decision to deny them compensation was unjust. Pleural plaques are scars on the lining of the lung caused by asbestos. It is only right that [sufferers] receive compensation." ASBESTOS UPDATE: Namibia Capital's Water Supply Pipes Contaminated ------------------------------------------------------------------ Edson Haufiku of the Informante reports that the City of Windhoek, Namibia's bulk and waste water management division came under fire after Informante discovered that most underground freshwater supply pipes in the capital are made from asbestos, a deadly material known for causing cancer. Almost all residents in the capital and a quarter of the Namibian population could be at risk of contracting various forms of cancer through the pipes that deliver drinking water to their households. Already one single microscopic asbestos fiber can cause cancer. According to Wikipedia and other sources, asbestos is a set of six naturally silicate minerals used commercially for their desirable physical properties. The inhalation of asbestos fibers can cause serious illnesses, including malignant lung cancer, mesothelioma, a formerly rare cancer strongly associated with exposure to amphibole asbestos, and asbestosis, a type of pneumoconiosis. The European Union has enforced bans on the use of most forms of asbestos since 2008. Only six African countries -- Algeria, Egypt, Gabon, Mozambique, Seychelles and South Africa -- have banned the usage of asbestos in such forms. Namibia has not yet passed a law forbidding the use of asbestos. According to Fred Brinkmann of the City of Windhoek's bulk and waste water department, the use of asbestos is not recommended because of the health hazards associated with it. "All the asbestos water pipes currently in usage in the capital have been there for more than 20 years. In case of a pipe burst we exchange asbestos water pipes with plastic pipes. The process will take a long time to complete and, so far, we are busy rehabilitating most pipes in the suburbs with the exception of Katutura and Khomasdal which have already been rehabilitated," says Brinkmann. Cecil Khoeseb from the capital's water interruption division confirmed that the asbestos freshwater pipes are only being replaced step by step with unplasticised polyvinyl chloride (UPVC) ones that do not pose any health risk. A local water expert who spoke to Informante on condition of anonymity said Namibia has no clear guidelines on the usage of asbestos but at the same time disagreed with the perception that asbestos water pipes would pose a significant risk to human life. "Never in Namibia did I attend a meeting where the dangers of asbestos pipes were discussed. Those pipes have a strong protective layer that is not easily damaged. I therefore don't see the need to panic," says the expert. However, with hundreds of kilometers of asbestos pipes still in the underground and only replaced in the case of damage, the question remains as to how long it may take until the country's asbestos network is rehabilitated. It took almost 20 years to accordingly replace the cancerous pipes in the capital's suburbs of Katutura and Khomasdal alone. The area of Windhoek, for example, measures an estimated 30 square kilometers. The number or length of asbestos pipes snaking through Namibia could not be reliably established. Both Brinkmann and Khoeseb could not provide a definite answer on the anticipated time frame but pointed out that the replacement of the potentially cancerous water supply network is one of their priorities. ASBESTOS UPDATE: Contaminants Raise Costs to Landmark Renovation ---------------------------------------------------------------- Paul Fallon of the Charleston Daily Mail reports that mold, lead paint and asbestos issues at a historic East End landmark could make renovating the building much more expensive than officials expected, Charleston Urban Renewal Authority board members learned on Dec. 14. The authority is hoping to rehabilitate the historic Chamberlain Court on Lewis Street and recently contacted the local chapter of Habitat for Humanity to see if the group would be interested in doing the work. But a host of environmental issues would mean that Habitat could not use volunteers for the project, Urban Renewal Authority Executive Director Jim Edwards told board members at a meeting. This will significantly increase the cost of saving the building, he said. Nevertheless, board members continue to explore other options for rehabilitating the building. They discussed sending out formal requests for proposals to private companies to see if any are interested in the work. Before the requests for proposals are sent, Edwards will contact the State Historic Preservation Office to see if grants are available to offset the cost of dealing with the environmental issues. He also will look to other agencies as possible funding sources. "I'll be reaching out to the state office sometime this week," Edwards said. Previously, the urban renewal authority had turned the property over to the Kanawha-Charleston Housing Authority for renovation or demolition. But, during a previous meeting in September, Housing Authority Director Mark Taylor told board members the property would be too expensive to rehabilitate. Taylor said it would cost about $1.29 million to fix the six units but only about $952,000 to demolish the structure and build eight smaller apartments. During that meeting, Charleston Mayor Danny Jones asked the board to explore finding other entities to rehabilitate the building. He and others have said saving the building is important in keeping the neighborhood's historic character intact. "So let's give it one more shot and try to find a party by going through the formal RFP (request for proposals) process," Edwards said. Edwards said the board would have to demolish the building if interested parties are not found, but said demolition is a "last resort." Edwards will ready the request for proposals in case the board can secure funding from the state historic preservation office or another entity, he said. ASBESTOS UPDATE: A.W. Chesterton et al. Facing Lawsuit ------------------------------------------------------ Kyla Asbury of The West Virginia Record reports that a Ravenswood couple is suing 69 companies they claim are responsible for a lung cancer diagnosis. On Oct. 19, Marcine Law was diagnosed with lung cancer, according to a complaint filed Nov. 15 in Kanawha Circuit Court. Law and his wife, Mary Law, claim the 69 defendants are responsible for the lung cancer because the defendants failed to warn them of the dangers of asbestos exposure. The defendants are being sued based upon theories of negligence, contaminated buildings, breach of expressed/implied warranty, strict liability, intentional tort, conspiracy, misrepresentations and post-sale duty to warn, according to the suit. The Laws are seeking a jury trial to resolve all issues involved. They are being represented by Thomas P. Maroney, at Maroney Williams Weaver & Pancake, and Victoria Antion -- vantion@motleyrice.com -- at Motley Rice. The case has been assigned to a visiting judge. The 69 defendants named in the suit are A.W. Chesterton Company; Atlas Industries, Inc.; Aurora Pump Company; BWIP, Inc.; Catalytic Construction Company; Caterpillar, Inc.; Clark Equipment Company; Cleaver-Brooks Company, Inc.; Columbus McKinnon Corporation; Copes-Vulcan, Inc.; Crane Company; Crown, Cork & Seal Co., Inc.; DeZurik, Inc.; Dravo Corporation; Eaton Electrical, Inc.; F.B. Wright Company; Flowserve US, Inc. F/K/A Durco International, Inc.; Flowserve US, Inc. F/K/A Flowserve FSD Corporation; FMC Corporation; Foster Wheeler Energy Corporation; General Electric Company; George V. Hamilton, Inc.; Goulds Pumps, Inc.; Grinnell Corporation; Hercules, Inc.; Honeywell International F/K/A Allied Signal, Inc.; Honeywell, Inc.; Howden Buffalo, Inc.; I.U. North America, Inc.; IMO Industries, Inc.; Inductotherm Industries, Inc.; Industrial Holdings Corporation; Ingersoll-Rand Company; ITT Corporation; Joy Technologies, Inc.; Lockheed Martin Corporation; McJunkin Corporation; Metropolitan Life Insurance Company; Morgan Engineering Systems; Ohio Valley Insulating Company, Inc.; Owens- Illinois, Inc.; P&H Mining Equipment, Inc.; Pettibone/Traverse Lift, LLC; Pneumo Abex Corporation; PPG Industries, Inc.; Premier Refractories, Inc.; Reading Crane and Engineering Company; Riley Power, Inc.; Rockwell Automation, Inc.; Rust Constructors, Inc.; Rust Engineering & Construction, Inc.; Schneider Electric USA, Inc.; State Electric Supply Company; Sterling Fluid Systems, LLC; Sunbeam Corporation; Surface Combustion, Inc.; Swindell Dressler International Company; Tasco Insulations, Inc.; the Alliance Machine Company; the Gage Company; UB West Virginia, Inc.; United Engineers & Constructors and Washington Group International; Viacom, Inc.; Viking Pump, Inc.; Vimasco Corporation; West Virginia Electric Supply; Yale Materials Handling Corporation; Yarway Corporation; and Zurn Industries, Inc. ASBESTOS UPDATE: Legal Win Saves 20T Future Claims v James Hardie ----------------------------------------------------------------- Louis Andrews of The Canberra Times reports that a legal win for a man who contracted cancer from asbestos brake linings has saved as many as 20,000 future claims against manufacturer James Hardie, the sick man's lawyer says. The High Court dismissed appeals against mesothelioma-sufferer John William Booth's $326,000 payout, bringing to an end a three- year legal battle. And Mr. Booth's solicitor Gerard McMahon -- gam@turnerfreeman.com.au -- partner in the firm Turner Freeman Lawyers, which has handled a number of mesothelioma cases, said the court win secured compensation funding for as-yet-undiagnosed patients. "The case has got fairly huge ramifications, probably for what it stopped as opposed to what it established," the solicitor said. Mr. Booth, who lives in northern NSW, was diagnosed with the disease in early 2008. His legal team alleged the former mechanic contracted the illness from asbestos fibers in brake linings between the early 1960s and 1983. The brake linings were manufactured by Amaca and Amaba for then-parent company James Hardie, which in 2005 set up an asbestos compensation fund. But in Mr. Booth's case lawyers for the appellants, the former Hardie subsidiaries, argued everyday exposures to fibers might have contributed to the man's illness. Mr. McMahon said an estimated 20,000 sufferers were expected to emerge before 2040, but their chance of payouts could have been jeopardized by a finding against his client. "Now if Hardie were successful in the High Court in the Booth case those [people] kiss goodbye to compensation," he said. The court heard Mr. Booth was exposed to fibers during home renovations as a child in the 1940s, again helping his dad build a garage in the 1950s and in 1959, for 20 minutes, while working as a truckie. The appellants' claim fell short first at the NSW Dust Diseases Tribunal, again at the NSW Court of Appeal and finally in the High Court. Chief Justice Robert French and three judicial colleagues ruled the appeal should be dismissed and awarded costs to Mr. Booth. "The brief, isolated exposures [during renovations and as a truck driver] were dwarfed by Mr. Booth's occupational exposure to asbestos in brake linings during his career as a motor mechanic," the Chief Justice noted. But Justice John Heydon, in dissenting, found in favor of the subsidiaries and said there was no evidence at trial to prove "but for" the man's exposure to the brake linings he would not have contracted mesothelioma. Mr. Booth, now 74, has had several bouts of chemotherapy this year and been hospitalized on at least one occasion. But his solicitor described his staying power as remarkable. "His health is generally good but I think his spirits were elevated today by the news I was able to give him a bit earlier," Mr. McMahon said. ASBESTOS UPDATE: Union Stages Protest Against UBS Contractor ------------------------------------------------------------ Anthony Buzzeo at The Daily Fairfield relates that asbestos poses many risks if not properly removed, and Asbestos, Lead & Hazardous Waste Laborers' Union Local 78 made that point clear on Dec. 14 with a display set up at UBS in Stamford of two coffins bearing signs that say, "Asbestos Kills." In addition to the two coffins, a union member was handing out fliers saying the international investment bank is not properly handling asbestos removal. The fliers say New York Insulation, a company hired by UBS, is substandard and has a history of violating laws that keep people, including its own workers, safe from asbestos. The flier also gives examples of how the company has violated the law. The New York-based union also encourages people to call UBS Chief Executive Officer Bob McCann to protest the hiring of the company. "Tell him what every first-grader knows: People's health is more important than the bottom line," the flier says. The protest is an appeal to the public, not a threat to stop work or deliveries, the flier said. ASBESTOS UPDATE: EPA Found to Violate Own Rules to Save Money ------------------------------------------------------------- Jim Morris and Chris Hamby at The Center for Public Integrity report that the Environmental Protection Agency has allowed the use of unapproved methods to demolish buildings containing asbestos, threatening public health and possibly violating worker safety rules, the EPA's inspector general has concluded. In an "early warning report" to EPA Administrator Lisa Jackson that speaks to the urgency of the matter, Inspector General Arthur A. Elkins, Jr., noted that asbestos is a human carcinogen "with no safe level of exposure." Nonetheless, Elkins found, the agency allowed its own employees and contract workers to be exposed to the toxic, fire-resistant mineral -- widely used in buildings after World War II -- during tests in Texas and Arkansas in 2006 and 2007. Elkins said his office's preliminary research showed that the unsafe demolition methods -- designed to save time and money -- have been used more recently at the Hanford Superfund Site near Richland, Wash., a former Department of Energy nuclear weapons production site, and are under consideration at a DOE-owned uranium enrichment facility in Paducah, Ky. The EPA should "immediately and clearly communicate" to its various offices that only approved methods should be used during the demolition of asbestos-containing buildings, the Inspector General said. The agency should retract all approvals -- such as the one given at Hanford -- that deviate from long-established practices designed to protect workers and the public from microscopic asbestos fibers, which can lodge in the lungs and cause cancer and other serious diseases, Elkins wrote. The Inspector General's finding means that the EPA is "finally shutting down an experiment that was based on shoddy science," said Jim Hecker --jhecker@publicjustice.net--, a lawyer at Public Justice, a public-interest law firm whose criticism dissuaded the EPA from using the shortcut at an abandoned motel in Fort Worth, Texas, in 2004. "For over seven years, [some EPA officials] have been pushing an asbestos removal method that endangers people and doesn't work." The Inspector General's report "means that the alternative method is now dead," Hecker said. "It's been exposed for what it is, which is a dangerous method." An EPA spokesman declined to comment, saying he had not read the report. Under a 1973 EPA rule, asbestos must be removed by specially trained technicians in protective gear before buildings are demolished, and meticulous efforts must be made to contain the fibers so they don't leave the work site and threaten the public. Beginning in 1999, the inspector general found, the EPA began studying alternative methods that were quicker and cheaper. During tests in Fort Worth and at Fort Chaffee, Ark., a former Army base, workers were given permission to circumvent the 1973 rule and demolish buildings with asbestos still in them, "potentially releasing asbestos fibers into the environment and endangering public health," Elkins wrote. The buildings were hosed down prior to demolition. But there is no evidence that this lessened the danger, the Inspector General found: there were "demonstrated asbestos fiber releases" at both sites. In Fort Worth, where the test was performed on the office of an abandoned apartment complex, "people were living right across the street," Hecker said. "That was the one that really ticked us off." Public Justice and an environmental group, the Natural Resources Defense Council, sought to expose the EPA's own doubts about the so-called wet method of asbestos removal by filing a Freedom of Information Act request with the agency in June 2010. Unhappy with the EPA's response, the groups sued earlier this year. Last month they obtained more than 26,000 pages of documents, one of which shows that respiratory protection requirements for workers weren't met and warning signs weren't posted, as required by the Occupational Safety and Health Administration. An OSHA spokesman declined to comment. Terry Lynch, international vice president of the International Association of Heat and Frost Insulators and Allied Workers union, said the EPA developed the unapproved demolition technique "to cut corners and save money" on urban renewal projects. An EPA document summarizing one of the Fort Chaffee tests concluded that the approved asbestos removal method was nearly twice as expensive as the wet method. ASBESTOS UPDATE: Harper's Avid Support to Chrysotile Trade Noted ---------------------------------------------------------------- Kathleen Ruff, author and senior human rights adviser for the Rideau Institute, writes on thestar.com that the Harper government is negotiating a free-trade agreement (Comprehensive Economic Partnership Agreement) with India, which would advantage Canada's asbestos industry by removing the 10% tariff on exports to its biggest customer, India. This issue might seem academic, since asbestos mining has ceased in Canada. The Jeffrey mine at Asbestos, Que., (the biggest open pit asbestos mine in the world) closed two years ago and Canada's last operating asbestos mine -- LAB Chrysotile's mine at Thetford Mines, Que. -- closed in November this year. These last two asbestos mines were facing financial and environmental disasters. Both were forced to seek bankruptcy protection several years ago, slashing wages and pensions. From being the world's biggest exporter of asbestos, the asbestos industry represented only 0.1% of Quebec exports in 2010. By 2011, after 130 years, Quebec asbestos mining finally stopped altogether. Other asbestos mines in British Columbia, Newfoundland and Ontario closed years ago. One would think this was the end of a sorry chapter of Canadian history. But one would be wrong. Undeterred, both Jeffrey Mine Inc. and LAB Chrysotile Ltd. are aggressively seeking financial and political assistance from the Quebec and Canadian governments to restart the asbestos disaster all over again. When it comes to promoting the interests of the asbestos industry, Prime Minister Stephen Harper is no sluggard. In the weeks prior to the May 2 general election, the 14,000 citizens of Asbestos were treated to not just one, but two visits by the Prime Minister, who proclaimed his commitment to fight "discrimination" against the asbestos industry. Harper's courting of the citizens of Asbestos did not produce the desired result. The Bloc held the seat by a hair's breadth over the NDP, with the Conservative candidate coming a humiliating third. Harper's dedication to the asbestos trade continued unabated, however, as evidenced by his sabotage of the UN Rotterdam Convention Conference in Geneva earlier this year to prevent chrysotile asbestos (100% of the global asbestos trade) from being put on the convention's list of hazardous substances, thus ensuring continued uncontrolled sale of asbestos. Asbestos can only be sold if there are no safety controls. Safety measures are complex and costly, as Canadians well know, and are required for the whole life cycle of asbestos, thus pricing it out of the market. Even its biggest fan, Industry Minister Christian Paradis, admits this. Chrysotile asbestos is listed under Canada's Hazardous Substances Act but, according to the Canadian government, is not hazardous for people overseas. Around the world, Canada's conduct was bitterly condemned as a despicable double standard. When it comes to the Comprehensive Economic Partnership Agreement (CEPA) with India, Harper is likewise employing a double standard. He will not tolerate "discrimination" against the asbestos industry, but is undisturbed by discrimination favoring the asbestos industry. While working to eliminate tariffs on asbestos, Harper is conspicuously silent over the $58 million subsidy that the Quebec government has offered to the consortium of "free enterprise" investors to cover 70% of the cost of the underground Jeffrey asbestos mine they want to open in Asbestos. Under free trade rules, such subsidies are prohibited and the Canadian government has responsibility for ensuring their elimination. LAB Chrysotile will also receive a $58 million subsidy from the Quebec government, according to Thetford Mines Mayor Luc Berthold, who states that Quebec Minister of Municipal Affairs Laurent Lessard has agreed to offer LAB the same subsidy as offered to the Jeffrey mine investors. Paradis, Harper's Quebec lieutenant, is the MP for Thetford Mines and a powerful political ally of LAB Chrysotile. He has pledged the Harper government's full support for the plan to restart mining asbestos. Since taking power, the Harper government has given $1.5 million to the asbestos industry's lobby group, the Chrysotile Institute. Conservative MPs say the Harper government has cut the funding, but the institute's president, Clement Godbout, says that federal government funding continues. The Canadian Cancer Society has criticized this financing as promoting deceptive industry propaganda that will cause loss of life. The financing also clashes with CEPA. In Quebec, Minister of Economic Development Sam Hamad is in charge of the $58 million loan guarantee to the asbestos investors. In 2003, Hamad gave the global asbestos industry a priceless PR gift. He recommended replacing "asbestos" with the word "chrysotile" in order "to give the industry nobility and growth." Harper and Quebec Premier Jean Charest refuse appeals to respect science and protect health. Perhaps, ironically, the free trade deal with India will succeed where scientific evidence and human compassion have failed: an end to taxpayer subsidies to the deadly asbestos industry. ASBESTOS UPDATE: Sea-Land Service to Pay $1.45M to Former Crew -------------------------------------------------------------- A King County jury, on Dec. 15, awarded a Vashon, Wash., man and his wife $1.45 million after he was diagnosed with mesothelioma caused by exposure to asbestos during his maritime career on a ship owned and operated by the defendant, Residual Holdings, successor to Sea-Land Service, Inc. Roger E. Hammett, Jr., 84, served as a messman aboard the SS SEATTLE for 67 days in 1966 and was exposed to asbestos fibers from pipe insulation that was being stripped from steam pipes during the voyage. Due to his exposure, he developed mesothelioma, a rare cancer in the lining of protective tissue around the lungs. Sea-Land was found liable for negligence for allowing Hammett to work in conditions that exposed him to asbestos, which had been linked to several deadly diseases by 1966, including mesothelioma. Labor and health regulations and standards at the time advised employers to close off construction areas, ventilate the site or at least provide respirators and protective clothing to employees. Sea-Land failed to do so much as warn employees of the danger. "This was a very hard-fought, bitter case, and one of Roger's deepest wishes was to live to see the day when those responsible would be held accountable for their negligence and lack of concern for the safety of employees," said Hammett's attorney, Matthew Bergman -- matt@bergmanlegal.com -- of Bergman, Draper & Frockt. "Sea-Land had only offered $5,000 before the trial, and we didn't think that was a fair settlement for Roger and his family. He and his wife feel relieved and vindicated by the jury's decision." Hammett originally brought suit against several shipping companies and the Washington State Ferries in March 2011 and was granted an expedited trial date due to his terminal condition. The claims against other shipping companies were dismissed for jurisdictional reasons, and the Washington State Ferries settled for a confidential amount. Hammett is undergoing palliative care to treat mesothelioma and is currently in the terminal stages of the disease. He was diagnosed in September 2010 and has been undergoing treatment ever since. Once diagnosed, patients often have only months to live. According to Bergman, Hammett's injury is not uncommon, with King County reporting the fourth-highest rate of asbestos-related deaths in the nation. "The truly unfortunate reality is that we will see more and more of these cases," he added. "Mesothelioma can take 30 or even 50 years to become symptomatic after exposure, and the Puget Sound was central to our nation's shipping industry during the time when asbestos was commonly used." Hammett was awarded damages for pain, suffering, disability and loss of enjoyment of life. He has five children and eight grandchildren. "There is nothing we can do to return what Sea-Land took from Roger and his family," said Bergman. "But we hope this verdict helps ease their pain and sends a very strong message to employers everywhere that employee safety and health should not take a backseat to anything." About Bergman, Draper & Frockt Bergman, Draper & Frockt is a Seattle-based law firm that focuses on representing individuals and families who have been harmed by more powerful interests. The firm built its reputation on serious asbestos disease claims and is expanding its practice to benzene and predatory lending cases. Matthew Bergman is the firm's managing partner and one of seven lawyers across the nation who negotiated a $4 billion national settlement with the Halliburton Corporation for its asbestos liabilities, approximately $30 million of which went to Bergman, Draper & Frockt clients residing primarily in the Pacific Northwest. ASBESTOS UPDATE: Affordable Hazards Gets Decorah School Project --------------------------------------------------------------- Laura Goetzinger at The Decorah Newspapers reports that Affordable Hazards Inc. will remove asbestos from the Decorah High School roof areas over winter break, the School Board decided at its Dec. 12 meeting. Affordable Hazards Inc., of Monticello, had the low bid for the work, at $10,308. The company has won all the asbestos removal bids for the high school renovation and remodeling project. The District has been satisfied with their work, said Superintendent Mike Haluska. Affordable Hazards Inc. will remove asbestos from the roof of the first-floor language arts classrooms and hallway as well as two coaches' offices. The first and second floor will then be at the same stage for the summer when parts of the roof are being replaced, Haluska said. Other bidders were Advanced Environmental of Waterloo ($11,709) and Environmental Management Service of Iowa of Dubuque ($14,286). The mild weather has helped work progress on schedule at the high school, said Greg Schaller, director of building and grounds. ASBESTOS UPDATE: East Providence School Project Waits Cash Release ------------------------------------------------------------------ Abigail Crocker of the East Providence Patch reports that the Rhode Island Department of Health wants to see a plan of action. To ensure the air within the walls of East Providence High School is asbestos-free, officials are seeking assurance that progress is being made to update the dilapidated facility. Farrar & Associates is the firm overseeing future construction work at the school. According to James Farrar, principal and owner, asbestos tiles throughout the building will be removed as crews fix a swath of issues, including ceiling problems and faulty pipes. An environmental consultant will be collaborating with the firm to make sure the asbestos is properly disposed of. Air tests were conducted at the high school prior to its opening in late August; 22 samples came out negative for asbestos, Farrar said. "Bottom line [DOH] is looking for a plan of action -- that people are continuing to be proactive of the removal of any of that type of materials," Farrar said. However, engineering and architectural work can only continue once bond money is secured by the school department. About $6 million of the allocated $15 million has been allocated -- they are waiting for about $9 million to be released. "That's what we're looking for, the release of the final monies," Farrar said, noting he hopes work will be completed by the end next summer. According to East Providence School Committee Chairman Charles Tsonos, the East Providence High School will not be shut down in the immediate future due to ongoing talks with DOH. Asbestos testing will be conducted over winter break. ASBESTOS UPDATE: England, Wales Snubs Pleural Plaques Payout Issue ------------------------------------------------------------------ Terry Kelly at Jarrow & Hebburn Gazette reports that a new twist in the battle for justice by asbestos victims in South Tyneside was blasted on Dec. 15 as "totally unfair." People in Northern Ireland with the asbestos-related condition pleural plaques can claim compensation. But ex-shipyard workers and those who worked with asbestos in heavy industry on Tyneside and the rest of England still cannot claim. Pleural plaques victim Bob Cusworth said: "I think this is totally unfair. "This means that people in Scotland, and now Northern Ireland, can claim for compensation, but not those lads in Tyneside and the rest of the country who are living with pleural plaques -- but we are the area where asbestos was used more than anywhere else. "At the end of the day, I think this is all about money, and insurance companies not wanting to pay out." A condition creating scarring of the lungs, caused by exposure to asbestos, pleural plaques can develop into the killer disease mesothelioma. But even when it does not become terminal, pleural plaques victims suffer breathlessness, problems in walking long distances and anxiety. Former shipyard worker Mr. Cusworth, 74, of Ribble Walk, Jarrow, who was awarded GBP5,000 compensation under a limited scheme agreed by the Ministry of Justice -- but only for those who claimed before October 2007 -- added: "Tony Blair wrote a book called A Journey, but asbestos victims have been on an even longer journey for justice. "I think we need to get Jarrow MP Stephen Hepburn and others involved again, because I believe 90% of the victims of asbestos are from the North East." Belfast solicitors Thompsons McClure, who have worked with unions in campaigning for compensation entitlement, welcomed the Northern Ireland's Assembly's decision. The Assembly has passed a bill restoring the right to claim compensation for pleural plaques, which could see sufferers claiming up to GBP15,000 in damages. But the right for English and Welsh sufferers to claim compensation for pleural plaques was removed by the House of Lords in 2007. Since then, both the Northern Ireland Assembly and the Scottish Parliament have passed bills restoring the right to claim. Ian McFall, head of asbestos policy at Thompsons McClure's sister- company Thompsons Solicitors, which has offices in South Shields and Newcastle, said: "This change in the law is sympathetic recognition by the Northern Ireland Assembly of the reality facing those suffering from asbestos-related pleural plaques. "A similar stance was taken in Scotland, which leaves only the Government in England and Wales stubbornly refusing to accept what was, until very recently, regarded as the legal norm." ASBESTOS UPDATE: Abatement, Renovation Affect School Opening Date ----------------------------------------------------------------- David Kilby at The Cranbury Press reports that the Monroe Board of Education awarded a bid for asbestos removal at Applegarth School at its meeting on Dec. 14, but removing the asbestos in the school is only the first step toward getting it reopened by next September, and there is concern the school won't be ready in time. The Monroe Township Board of Education publicly advertised and solicited competitive bids for asbestos removal at the Applegarth School, and Dec. 7, the board received, opened and publicly read bids at a special public meeting. The board is required to award contracts to the lowest responsible bidder, but the lowest bidder, VMC Company Inc. contained a nonconforming bid bond and did not comply with applicable law and the bid specifications for the project. The second lowest bid was submitted by Two Brothers Contracting Inc., and the contract was awarded to the company for $44,800. At the meeting, there was some disagreement about opening Applegarth School in September 2012. Aside from the asbestos, there was concern the two boilers in the school are not safe. Michael Gorski, business administrator, said the boilers are "on, operational and functioning fine." Dr. Jeff Gorman, assistant superintendent of schools, who said he worked at the Applegarth School from 1996 to 2008, added, "Being one who knows all of the ins and outs of that building, I say its solid." But Louis Masters, board member, said he has mixed emotions about opening the school next September. He said the board basically has three options. It can open the school on schedule, delay the opening one or more years or demolish all or part of the school and rebuild. "I'm starting to get nervous about the timeframe and the amount of stuff we need to get done," Mr. Masters said. "I have a problem when we talk about compliance per a certain date. If I had my way, I would fix the school completely. Why do these kids have to make do with something that's just adequate?" He added students from other schools are getting the best the township has to offer. "We're kind of playing fast and free with this," he said. "It'll get done. I'm nervous about the timeframe." Board member Amy Antelis said the 1936 part of the building is beautiful and just needs to be repainted and have the steps fixed. "It's probably built better than some of the schools we have today," she said, adding that if the board closes the school another year, it's basically telling the public the district doesn't need the school. Ms. Antelis said if the district keeps Applegarth School closed, it also should close Barclay Brook School as well. "That has actually been discussed at the buildings and grounds meetings," Mr. Masters said. Board member John Leary said the board should consider a referendum for renovations to Applegarth School. "East Brunswick passed a referendum of up to $100 million to get their schools up to snuff," he said. "This board and administration would never put children in a school that is not safe for students and staff," said Kathy Kolupanowich, board president. She said the district initiated a spending freeze at its Nov. 23 meeting, which could save the district between $500,000 and $700,000. "We could use that money to advance work being done at Applegarth School," Ms. Kolupanowich added. She said the plan to open Applegarth School is a work in progress because throughout the process, priorities change throughout the district. But the board made it clear something must be done for Applegarth School because it has been somewhat neglected compared to the district's other schools. Board member Mark Klein said the older parts of the school should be easy to clean up. "I'm not afraid to open up the school. It is highly certified. It will be safe for everyone," he said. ASBESTOS UPDATE: Madison Court Told to Reform Docket System ----------------------------------------------------------- Sue Reisinger of Corporate Counsel reports that a judge's campaign contribution flap in the Madison County, Illinois, circuit court has led the U.S. Chamber of Commerce's Institute for Legal Reform to urge major changes in how the court handles asbestos cases. Lisa Rickard, president of the Chamber's legal arm, on Dec. 14, issued a statement calling on the court "to fix the fundamental flaw of Madison County's asbestos docket calendar system that in effect puts court time up for sale." The flap began when it was discovered that attorneys from three plaintiffs' law firms donated $30,000 in early December to the campaign fund of Judge Barbara Crowder, who oversaw the docketing of asbestos cases. Just a few days before the contributions, the three firms had received a majority of highly sought-after asbestos trial dates. On Dec. 12, chief judge Ann Callis removed Crowder from overseeing the asbestos docket. The court presides over litigation involving one-sixth of America's cases involving plaintiffs with mesothelioma, a lung disease blamed on asbestos contamination. In Madison County, the asbestos docket judge awards trial slots to law firms in advance of actual cases. The law firms use the slots to attract mesothelioma plaintiffs from around the country. Critics say the unusual process confers a substantial economic benefit on trial lawyers receiving the most dates. Callis declined to discuss Crowder's reassignment, but made public her order announcing the switch, along with this statement: "A situation was brought to my attention, and following consultation with the circuit judges, we unanimously decided to change some civil assignments to maintain the public trust in a fair and unbiased judiciary," according to the St. Louis Post Dispatch. Crowder was then assigned other duties in the civil division, including chancery and eminent domain cases. She is seeking retention of her judgeship, as Madison County judges do every six years. That means she needs 60% approval on a ballot question asking if she should be retained. The newspaper said the $30,000 was her fund's first new money in more than four years. Crowder issued this statement on Dec. 14: "Unfortunately, the timing of some campaign donations and the entry of a scheduling order have led some to speculate that there might be some relation between them." She added, "Nothing could be further from the truth." Crowder also said her husband, Lawrence Taliana, would resign as her campaign manager. The Chamber's Rickard, however, went on to say: "For at least a decade, the Madison County asbestos docket calendar has assigned case slots to plaintiffs' lawyers without actual court cases, creating a type of asbestos lawsuit futures market of immense value to those plaintiffs' firms who have been assigned court slots. "It is this compromised system that is the root of the cash-for- trials scandal which caused judge Crowder's reassignment. When judge Crowder inherited the Madison County asbestos docket last year, many were hopeful that she would clean up this warped system. That didn't happen." So Rickard urged the court to make the changes now. The Chamber's legal arm has criticized Madison County for years for being too plaintiff-friendly. The Chamber, which lists Madison County as one of the country's "judicial hellholes" for corporate suits, also skewered the court's asbestos practices in a white paper last year. Over 2,000 asbestos cases are pending in the county court. Meanwhile, news reports, including from the ABA Journal, said the donating lawyers came from the Madison County-area law firms Gori Julian & Associates; Goldenberg, Heller, Antognoli & Rowland; and the Simmons Law Firm. Elizabeth Heller -- elizabeth@ghalaw.com -- of the Goldenberg Heller firm, who made a $5,000 contribution, called Crowder "hard- working and unbiased" and said, "We're very disappointed that she's stepping down," according to the St. Louis newspaper. Michael J. Angelides -- mangelides@simmonsfirm.com -- managing partner of the Simmons firm, told the newspaper his firm has a history of supporting Democrats, including Crowder. He called the asbestos docket "a fair and efficient forum for plaintiffs and defendants to have their cases heard." ASBESTOS UPDATE: ADAO Announces 2012 Annual Conference Honorees --------------------------------------------------------------- The Asbestos Disease Awareness Organization (ADAO), which combines education, advocacy, and community initiatives as a leading asbestos victims' voice worldwide, announced its honorees and keynote speaker for the 8th Annual International Asbestos Awareness Conference, Asbestos: An International Public Health Crisis, to be held March 30 to April 1, 2012, in Los Angeles, Calif. The conference brings together renowned experts and asbestos victims in a united forum to enhance asbestos awareness, education, treatment, and collaboration. The conference is made possible with the partnership of the Environmental Information Association (EIA) and Independent Asbestos Training Providers (IATP). Matt Peacock, the 2012 ADAO International Asbestos Awareness Conference keynote speaker, is an award-winning reporter with the Australian Broadcasting Corporation, where he has worked for a wide range of TV and radio news programs. Matt first warned the public about the dangers of an Australian asbestos manufacturer's empire in an award-winning radio series in 1977. He has followed the tragic asbestos trail for more than 30 years: from the company's factories where workers had asbestos 'snowball' fights, to the mine where Aboriginal children played in the tailings, and into thousands of homes where asbestos now threatens home renovators, not just from their fibro walls and ceilings, but from the dust that still lurks under their carpets. Most recently, the Australian Broadcasting Corporation ran Matt's report on India's toxic asbestos trade. Each year, ADAO's conference recognizes outstanding individuals and organizations from around the world that serve as a voice for asbestos victims, raising awareness and advocating for a worldwide ban of asbestos. ADAO is delighted to announce this year's esteemed honorees. The 2012 Asbestos Disease Awareness Organization Honorees: U.S. Representative Steve Cohen will be presented with the Tribute of Hope Award for his steadfast commitment and determination to ban asbestos. Dr. Richard Lemen will be recognized with the Dr. Irving Selikoff Lifetime Achievement Award in honor of his tireless dedication to increasing asbestos awareness to eliminate diseases and unending support of the Asbestos Disease Awareness Organization. Dr. Arthur Frank will be recognized with the Dr. Irving Selikoff Lifetime Achievement Award in honor of his tireless dedication to increasing asbestos awareness to eliminate diseases and unending support of the Asbestos Disease Awareness Organization. Joel Shufro will be presented with the Tribute of Inspiration Award for his tireless efforts to protect workers' occupational safety and health, especially in regards to asbestos exposure. Associazione Familiari Vittime Amianto (AFEVA) will receive the Tribute of Unity Award for its relentless efforts, both nationally and internationally, to protect human rights and seek justice for victims and their families. Debbie Brewer, a mesothelioma patient, will be recognized with The Alan Reinstein Award for her commitment to education, advocacy, and support to countless patients and families. Larry Davis, a mesothelioma patient, will be recognized with The Alan Reinstein Award for his commitment to education, advocacy, and support to countless patients and families. "Our annual international conferences drive home the importance of the need for increased awareness, education, advocacy, and community support," stated Linda Reinstein, President/CEO and Co- Founder of the Asbestos Disease Awareness Organization. "We are again honored to have the opportunity to bring together some of the world's most renowned experts while recognizing some of the most influential leaders in the battle against asbestos exposure. Tragically, more than 107,000 people will die this year from asbestos-related diseases and prevention remains the only cure for deadly asbestos-caused diseases, but these true asbestos awareness heroes prove that together, change is possible." Conference presentations will include advances in diagnosing and treating asbestos-related diseases, preventing asbestos exposure in the home and workplace, patient resources, and a global advocacy session. Registration is available at http://www.adao.us/ About Asbestos Disease Awareness Organization Asbestos Disease Awareness Organization -- http://www.asbestosdiseaseawareness.org/-- was founded by asbestos victims and their families in 2004. ADAO seeks to give asbestos victims and concerned citizens a united voice to raise public awareness about the dangers of asbestos exposure. ADAO is an independent global organization dedicated to preventing asbestos-related diseases through education, advocacy and community. ASBESTOS UPDATE: EPA Questions Use of "Wet Method" in Joplin Ops ---------------------------------------------------------------- Kelsey Ryan at The Joplin Globe reports that a controversial method of asbestos removal and demolition that is being employed now at Irving Elementary School in Joplin has been called further into question by the Environmental Protection Agency's inspector general. But despite the report that cautions the method may be a danger to the public and is not approved to protect human health, authorities with the Missouri Department of Natural Resources and others continue to stand behind the use of the wet method at Irving because of an exemption for buildings that are structurally unsound. "The structure is damaged -- that's a huge distinction here," DNR communications director Renee Bungart said. "From the tornado, it's been totally demolished, and that makes it unsafe to try to stand on top and try to clear off debris. (The wet method) is the most effective way to protect the community and demolish the buildings when that structure is unstable." In the wet method, workers douse debris with water as it is demolished to, in theory, reduce the amount of asbestos- contaminated dust in the air. The preferred method is to remove all asbestos before demolition begins, but that can't always be done if a building is not structurally sound. "The safest route for us to go is that route that the DNR has set for us," said Joplin schools Superintendent C.J. Huff. In the EPA report, "Use of Unapproved Asbestos Demolition Methods May Threaten Public Health," Inspector General Arthur Elkins states regulated asbestos-containing material must be removed prior to demolition, but there is an exemption for when the building is "structurally unsound and in danger of imminent collapse." Irving Elementary, like several other schools in Joplin, was destroyed in the May 22 tornado. David Bryan, public affairs specialist for EPA's regional office in Kansas City, said the wet method "largely mitigates the release of fibers into the air," but prolonged exposure to the fibers in the air "can increase the amount of fibers deposited in the lung. Fibers embedded in the lung tissue over time may result in lung diseases such as asbestosis, lung cancer or mesothelioma." The report states the unapproved method may jeopardize public health and in tests done by the EPA, settled dust results from demolition testing sites showed releases of asbestos fibers. Jim Hecker -- jhecker@publicjustice.net -- environmental enforcement director for Public Justice, a public interest law firm based in Washington, D.C., said it's nearly impossible to see asbestos contamination with the naked eye and that using water doesn't stop asbestos contamination in dust. He said it's mostly invisible, but appears white in high concentrations. "Water has limited to no effect in preventing the release of asbestos, at least in the more aerosolized forms that can come off of these demolition sites," Hecker said. Ms. Bungart noted another risk with the method: "With the wet method, you don't know if you've gotten it all because everything is such a mess, and that's why they're doing the monitoring," she said. Ms. Bungart said that her DNR representative at the site told her that workers were wearing masks. She said the site has a fence around it and signs that warn of potential asbestos. So far, demolition at Irving has been shut down twice by the school district. Mr. Huff said the site was shut down because of precautions with asbestos contamination in the air and also through the tracking of mud into in the streets. "We're working with the DNR to make sure all demolition contractors are compliant," Huff said. "We don't want to de- obligate potential federal funding (by not complying). There are people on-site at each demolition location making sure we're being good neighbors and good to the community, and not making a mess of things in the process." Mike Johnson, district director of building, grounds and transportation who is overseeing the demolition operations, said that so far, there is no evidence of any contamination off-site from dust, and that air monitoring systems have been set up around Irving that are checked at daily intervals for contamination. Mr. Huff said that because the district is a public entity, it is held to higher standards for the demolition and asbestos removal. The DNR continues to oversee the demolition, Bungart said, and it gave the contractors suggestions on what to improve, including getting more water on-site to keep dust out of the air. Mr. Huff said he anticipates more shutdowns of the demolition sites across the district to ensure that "all the i's are dotted and t's are crossed." Rainy weather on Dec. 14 caused equipment to track mud into the street, and workers washed the tires of the vehicles before driving off-site and applied gravel to reduce tracking the mud. "I think we're probably going above and beyond what we need to do," Huff said. Instead of testing every site for asbestos, officials said the district assumes that the material is present in every building and is taking necessary precautions. Johnson said it is assumed all of the sites that will be demolished -- Joplin High School, Franklin Technology Center, East Middle School, Old South, Irving and Emerson -- have asbestos. "We're really staying on top of it," Johnson said. "If we see something that isn't exactly right, we're shutting them down. We're really being tough with them. But those are the rules of the job and we're holding them to it. We thoroughly investigated contractors, checked references, licenses and bonding." Demolition at Irving was contracted to Urban Metro, a company out of Atlanta. This is the first time the district has worked with the company and the Georgia Department of Natural Resources confirmed Urban Metro is licensed with the state for asbestos removal. The subcontractor for the work is JMC Construction of Wheaton, Mo. Ms. Bungart said Urban Metro is using Family Environmental out of Kansas City and Environmental Works to deal with the asbestos on- site. Although Urban Metro is not licensed to remove asbestos in Missouri, it is licensed in other states, she said. In a Nov. 9 meeting, the Joplin school board approved a bid of $139,260 to Urban Metro for demolition of Irving. The same company was awarded the contract to demolish Joplin High School for $155,322 and Old South Middle School for $134,230. Under the contracts with the demolition companies, Johnson said there was a flat fee dollar amount to take down the schools, but the contractors get salvaging rights to the buildings for things like bricks and scrap metal. He said that in the Joplin High School building alone there's an estimated $1.4 million to $2 million worth of steel. The salvaging part of the contract is what made the demolition costs so low. Johnson said that with all of the salvage at the schools slowing down the process, he expects the walls of JHS to come down the first week or two of January. The 60-workday window for demolition at all sites has begun, but there are provisions for weather and holidays that could make it longer. The district has created a timeline for rebuilding the destroyed schools, with the goal to have ribbon-cuttings for East Middle School, Emerson Elementary and Irving Elementary by December 2013 and Joplin High School and Franklin Technology Center by August 2014. ASBESTOS UPDATE: Signs at Waterfront Apts Abatement Alarm Tenants ----------------------------------------------------------------- Deidre Williams at The Buffalo News reports that asbestos-warning signs posted recently at Marine Drive Apartments without further explanation left many residents alarmed and wondering if their health was in danger. Housing Authority officials said a state mandate from the Office of Public Employee Safety and Health dictated when and where the signs were to be placed, which did not allow time to inform residents before they went up. Plans to hold a public informational meeting are in the works, they said. "We're not trying to inflame residents," said Dawn E. Sanders, executive director of the Buffalo Municipal Housing Authority, which owns and manages the Marine Drive complex. "We didn't have time before signs were put up to have a meeting with residents. The PESH report said we had to put up signs immediately, and that was the soonest we could have put them up. We didn't randomly pick where to put them." The notices read, "Danger. Asbestos Cancer and Lung Disease Hazard. Authorized Personnel Only." They were posted late last Friday afternoon at the elevators and the front and back doors of each of the seven buildings of the waterfront complex. Problems began in August, when seven workers at Marine Drive removed asbestos around eight water valves to address a leaking problem. A state agency investigation determined that the employees had not followed proper rules for dealing with asbestos, and the Housing Authority was handed 17 citations. One of the required corrections involved posting asbestos-warning signs in specific areas. The warnings also noted that confirmed or presumed asbestos- containing materials are present throughout the building, including floor tile, linoleum, plaster ceilings, heating pipes and all interior and exterior caulking. The information had some residents worried about whether the affected areas included their individual units. "I received a dozen calls and people coming to my door asking are they safe: 'What do I do now?' " said Joseph Mascia, a Marine Drive resident, who is one of two tenant-elected commissioners on the Housing Authority board. Only common areas, the boiler room and the maintenance room are affected, said Assistant Executive Director Modesto Candelario. But because the warnings went up late afternoon of Dec. 16 and offices were closed for the weekend, panicked residents were not able to have their concerns addressed or questions answered, "which is horrible on behalf of BMHA and Marine Drive Apartments office," said one tenant, who asked not to be identified for fear of backlash from the administration. "BMHA was cruel and irresponsible in posting these warning signs on a Friday evening without any further explanation about our health risks, safety," the tenant said. Housing Authority executives maintained that the way they handled the situation was mandatory. "We didn't want to be in violation of PESH," Candelario said. Informing residents of various issues usually follows a different process, but this case was exceptional, Sanders said. "Normally we would meet with residents before signs went up. In this instance, our first job was to comply with the report, which said immediately. Our second step was to tell the manager, and we're planning a meeting with residents," Ms. Sanders said. The building manager was told that the signs were going up, but she was not briefed fully enough to be able to meet with residents at the time, she added. Before such a meeting can happen, officials must meet with the manager again and with other staff who work at the complex to inform them of the specifics. "I can't have a manager who's not up to speed talking to residents because it only bothers them more," Sanders aid. Of the affected areas, much of the abatement was done immediately. "It had to be," Candelario said. A contract was awarded for the remaining removal work, which "probably will start soon." Residents will not have to be relocated, he added, because the abatement "won't be done in their apartments." ASBESTOS UPDATE: Children of Mesothelioma Victim Seek Justice ------------------------------------------------------------- Phil Coleman at News & Star (UK) reports that a Cumbrian man became the latest person in the county whose premature death has been put down as exposure to asbestos. Lawyers said that the family of James MacKenzie, who was just 59 when he died from mesothelioma, will continue to fight for justice. At an inquest in Carlisle, north and west Cumbria coroner David Roberts ruled that Mr. MacKenzie, of Hadrian's Avenue, Anthorn, near Wigton, died as a result of contracting an industrial disease after exposure to asbestos dust. Mr. MacKenzie's health problems came after working at a Carlisle building firm between 1969 and 1972. As an apprentice, he was exposed to dust from sheets of asbestos as it was cut. Mr. MacKenzie became ill in August last year and two months later, after further medical investigation, doctors diagnosed malignant mesothelioma, a cancer of the lining of the lung invariably caused by exposure to asbestos dust. Mr. MacKenzie died at the Cumberland Infirmary, the inquest heard. Before his death, Mr. MacKenzie recalled that during his apprenticeship asbestos was widely used for soffits on houses and in sheeting used for roofs and to line ceilings. He said that he would often have to help unload the material and would end up covered in asbestos dust. Mr. MacKenzie leaves his devastated children Cheryl, and John, both in their 30s. Commenting on his family's loss, John said this week: "Dad worked incredibly hard all his life and it seems so unfair that work he did so long ago took him from us. "We miss him terribly and to know that simple steps could have been taken to protect him is hard to bear." Roger Maddocks, an asbestos expert at Irwin Mitchell's Newcastle office, who is acting on behalf of the family said: "As result of this cruel illness, James's family have been robbed of their future together. "James was only 59 when he was snatched from his family due to mesothelioma cancer. "Today's inquest verdict confirms that James died as a direct result of being exposed to asbestos. On behalf of his family we are continuing the legal battle for justice." ASBESTOS UPDATE: Employee Fined CA$1,000 Over Work Safety Protocol ------------------------------------------------------------------ Cape Breton Post reports that an employee of the Cape Breton Island Regional Housing Authority was convicted and fined CA$1,000 for failing to take precautions to protect his own health and safety as well as that of other employees. Darryl Todd Routledge, 46, of Dominion Street, Glace Bay, was a maintenance supervisor for the housing authority in September 2005 when an employee reported concerns about insulation which he feared may contain asbestos. The employee and those working for a private contractor were doing work in a number of public housing units when the discovery was made. A sample from 3 Rose Terrace was sent for testing and a consultant confirmed it was vermiculite insulation which contained asbestos and advised that employees be notified that ceiling perimeters be sealed and attic hatches be locked. The authority's health and safety coordinator Jamie Della Valle hand-delivered a copy of the report to Routledge in October, 2005, that relayed the advice about notifying employees and sealing the hatches. Routledge was not the maintenance supervisor for the complex from which the sample was taken, but he managed similar buildings located in Whitney Pier. In his testimony at trial, Routledge said he couldn't recall the specifics of the conversation, but did not deny that it took place. He hadn't notified a supervisor or the joint occupation health and safety committee or take steps to ensure the recommended measures were completed. On March 31, 2006, Routledge gave a copy of the report to a contractor who had been asking about the presence of asbestos in the public housing units, which he said he had just found on his desk. Routledge was charged under the provincial Occupational Health and Safety Act. Judge Brian Williston said he found Routledge credible as a witness and acknowledged that Routledge at the time didn't know whether there was asbestos in his buildings. But Williston ruled that Routledge hadn't taken all reasonable steps to ensure his safety and that of employees. In passing sentence, Williston said the fine imposed should be sufficient enough to send a message to other supervisors who may find themselves in similar circumstances. Della Valle and another maintenance supervisor, Joseph Darrell McNeil, earlier received similar fines. ASBESTOS UPDATE: Avondale Shipyards et al. Face Mesothelioma Suit ----------------------------------------------------------------- Kyle Barnett at The Louisiana Record reports that a man is suing his former employer for exposure to asbestos that he says resulted in his diagnosis of mesothelioma 30 years after his period of employment. Harold P. Guarino filed suit on Dec. 8 in Orleans Parish Civil District Court against Avondale Shipyards, its executives and about a dozen other defendants including miners, manufacturers, sellers, users, distributors and/or suppliers of asbestos. Guarino claims he was exposed to asbestos and subsequently developed mesothelioma due to negligence by the defendants. The case states the plaintiff was exposed to hazardous levels of asbestos while working for Avondale Shipyards as tacker during two periods of employment, from 1969-70 and 1972-1980. In the lawsuit, the plaintiff says he was exposed to asbestos or asbestos-coated products where he breathed hazardous levels of airborne asbestos fibers. The defendants are charged with negligence for continuously exposing the plaintiff to asbestos without proper safeguards and an indifference to rights, safety and welfare of plaintiff. An unspecified amount in damages is sought to cover medical costs, lost earnings, mental suffering and anguish, pain and suffering, physical pain and suffering and loss of quality of life. The suit was filed on behalf of Guarino by Frank J. Swarr -- fswarr@landryswarr.com -- of New Orleans-based Landry and Swarr. Case number 2011-12740 has been assigned to Division G Judge Robin M. Giarrusso. ASBESTOS UPDATE: Modified Cold Virus Helps Fight Mesothelioma ------------------------------------------------------------- The Mesothelioma Center reports that researchers at the University of Pennsylvania reported promising results from a study which pinpointed a modified cold virus that triggers a body's own immune system to help fight off certain cancers, particularly mesothelioma. Nine mesothelioma patients were studied, and five of them reported either disease stability or tumor regression after having the virus injected. Only the four with the most advanced cases of mesothelioma showed no positive signs. Mesothelioma is the aggressive cancer caused by an exposure to asbestos. The report was published this week in the American Journal of Respiratory and Critical Care Medicine, providing a lift for immune-gene therapy research. Photodynamic therapy also took a step forward when the FDA approved the Orphan Drug Designation tag for PHOTOFRIN (porfimer sodium) for the manufacturer Pinnacle Biologics, Inc. Photodynamic therapy includes the injection of a photosensitive drug that takes hold in cancer cells, which then can be killed by a particular wavelength of light. PHOTOFRIN, which has been used against small cell lung and esophageal cancers, has shown to be more effective than some of the other drugs being used in this type of therapy. ASBESTOS UPDATE: High Level of HazMat Found at NYFD Lackawanna HQ ----------------------------------------------------------------- Rachel Kingston at WIVB.com reports that some of Lackawanna's bravest are worried that they've been exposed to asbestos while working on the job. N.Y.'s Lackawanna Fire House #3 has been under renovation, specifically for asbestos abatement for the last month. But since about Dec. 7, testing has shown unsafe levels of asbestos inside the Fire House. The recent test results were actually ordered by the firefighters who hired an independent lab to come in after they started noticing a large amount of dust in the building. The dust was mainly on the second floor but it was being trapped throughout the Fire House. The lab results show dangerous levels of asbestos in the that dust and raw building material that was left sitting on the ground, which is contrary to the air quality tests that have been going on in the Fire House. The latest test results came back Thursday, Dec. 8 but it wasn't until Dec. 17 that the City Engineer ordered firefighters to vacate the building until it can be cleaned up. The President of the Firefighter's union would have liked the City to react quicker. "A memo was published that we should avoid the second floor as best as possible. That was a less than appropriate response to the level of asbestos that was in the building", said Capt. Thomas Mendez. The contractor has told the Fire Department that it should only take 5 or 6 days to clean up all the dust and asbestos out of the building. The dispatch area is being worked on first to ensure that the dispatchers can return to work as soon as possible. ASBESTOS UPDATE: Garbage Tycoon Blames Violation to Bad Employees ----------------------------------------------------------------- Natalie O'Brien and Heath Aston at The Sun-Herald reports that Ian Malouf, the man who boasts he is opening the biggest landfill site in the southern hemisphere at Eastern Creek, acknowledges pollution lapses by his waste empire. But he blames them on rogue employees and waste transporters. Mr. Malouf, the self-made millionaire behind Dial a Dump, told The Sun-Herald that he runs a conscientious business and pollution offences this year arose from employees "breaching strict guidelines and procedures of which they were adequately aware." But it is not the first time. Companies linked to Mr. Malouf have been subject to five clean-up orders in the past five years, according to the Office of Environment and Heritage. In April this year, the OEH received numerous complaints about odors again coming from Mr. Malouf's Alexandra Landfill site. A surprise inspection found a pipe connected to infested leachate, which was pumping it into a stormwater drain. Then, in June, OEH inspectors again visited the site and found his wife Larissa's company, Boiling Pty Ltd, had 170,000-cubic-metre stockpiles of waste contaminated with asbestos. Other pollution breaches date back to 2002, when Mr. Malouf's company Alexandria Landfill Pty Ltd was ordered to clean up leachates after residents complained about a stench. In 2007, another property, at Marulan, was found with 1300 cubic meters of asbestos-contaminated soil. This property belongs to Mr. Malouf's mother-in-law, Kathleen Hopkins's company, Kathkin Pty Ltd, as trustee for his five children. A spokesman for the Premier, Barry O'Farrell, said he was made aware of the investigations by the OEH before attending the opening party for Mr. Malouf's new venture at the Eastern Creek landfill site on Dec. 8 -- a $500,000 celebration that featured 600 guests, acrobats, fireworks and a lion cub. Mr. O'Farrell's spokesman said: "That's why he went out of his way during his remarks at the opening to say that the NSW government has a strong independent environmental regulator and he expects all companies to comply or face the full force of the law." But inquiries by The Sun-Herald have revealed that Mr. Malouf -- who with his wife has donated almost $40,000 to the Liberal Party in recent years -- has not yet been granted a license to operate the landfill known as the Genesis facility. The application is with the OEH, which is considering it. Alexandria Landfill and Boiling are yet to complete the clean-up ordered at the Alexandria sites. Mr. Malouf said the property on Red Hills Road at Marulan was cleaned up at his own expense. He said it was inadvertently contaminated with asbestos after a delivery of landscaping materials to the family property. "Naturally I would not endanger the health and well being of my children intentionally," he said. Mr. Malouf said the companies had never been prosecuted and that he "would have preferred that these events necessitating clean-up notices had not occurred." In an emailed response to questions, he said: "As the CEO of the organization which has held environmental protection licenses for almost 25 years, it is understandable that during that period of time one or two incidents would be expected to occur. Those employees never get named but as a hands-on CEO I must carry that burden." Mr. Malouf lists his address as a mansion in Vaucluse which was traded last year for $15 million and was once owned by the Adler family. He is a law school dropout who decided that his future was in waste. After leaving school, he has said, he raised $700 cash to buy a truck and went door-to-door offering to take rubbish to the tip. He bought a tipper truck and a bobcat and his mother answered the phones while his father helped shovel loads of rubbish. Over the past two decades, he has built the Dial a Dump empire which stretches from skip bins to waste and recycling. Records show that Mr. Malouf bought the Alexandria Landfill site from Sydney City Council in 2000 and created a recycling facility. In 2002 he was issued with four clean-up notices after the OEH received complaints relating to odors. Inspectors found landfill leachate was causing the stench. Another clean-up notice was issued after failed attempts to fix the problem and complaints increased. In 2005 Mr. Malouf paid $143 million for the Eastern Creek site and he said he spent another $157 million developing it. It will boast state-of-the-art recycling technology. He has promised there will be no odors, and lining of the pit to stop leaching. Asked about the leachate at the Alexandria site, Mr. Malouf said: "We are not aware that it [pumping of leachates] has ever happened and the matter is currently being investigated by OEH. Management has conducted an internal voluntary environmental audit and believes it has isolated the identity of a person or persons who may have potentially breached the site's operational procedures." The OEH report said the asbestos "stockpiles" at the same site were believed to have been generated by the processing of waste. Mr. Malouf blamed a waste transporter for depositing the material. He said that transporter had now been banned. Mr. Malouf hit the headlines last year when photographed attending a $5000-a-head fund-raiser for the Liberal Party, also attended by Mr. O'Farrell, at the home of John Symonds. When it was revealed that Mr. Malouf, who is also a property developer, had been in attendance, the NSW Labor Party general secretary, Sam Dastyari, referred the $5000 donation to the Electoral Funding Authority for investigation. Labor is yet to learn the result and will ask for an update this week. Mr. O'Farrell's spokesman said the Premier was aware that Mr. Malouf was a Liberal Party supporter, having met him at the Symonds fund-raiser, but he would not have a clue about the level of his donations. ASBESTOS UPDATE: Ex-Drax Power Station Crew Dies of Mesothelioma ---------------------------------------------------------------- The Goole-Howden Courier reports a Selby man who worked in power stations for 27 years died from a lung disease after consistent exposure to asbestos, an inquest heard. Thomas Sinclair, of Woodville Terrace, died on Nov. 9 this year after he was suffering with shortage of breath and chest pains after a fall at home. Doctors at York Hospital diagnosed the 82-year-old with malignant lung disease -- mesothelioma -- but because of its advanced state ruled out chemotherapy and discharged him to be cared for at home. Coroner Rob Turnbull, sitting at Selby Magistrates' Court, heard that, after a variety of other jobs, Mr. Sinclair had started contract work on the construction of Eggborough, and then Drax, power stations from 1965 onwards. Later he continued working at Drax as a mechanical fitter's mate until his retirement in 1992, and would have come into contact with asbestos as work was undertaken to remove and dispose of lagged pipes. The coroner said a pathologist had found 15 asbestos fibers in one medical slide sample from Mr. Sinclair's right lung -- the normal level expected to be found being one fiber in six slides. Mr. Turnbull said that death had been due to mesothelioma consistent with exposure to asbestos, and recorded a verdict of industrial disease. ASBESTOS UPDATE: Hazmat Find Delays Work At Paramount Blvd Bridge ----------------------------------------------------------------- Mike Sprague, Staff Writer at the Whittier Daily News, reports that the 60 Freeway -- closed since a gasoline tanker truck exploded in flames underneath the Paramount Boulevard bridge on Dec. 14 -- was expected to open on Dec. 16, a Caltrans official said. However, Alphonso Sanchez, the maintenance regional manager for the East Los Angeles area, said "I don't have a crystal ball. It depends on the kind of snags we run into." The freeway, which has been closed between the 710 and 605 freeways, was supposed to open at noon of Dec. 16. But that was delayed when Caltrans workers found AT&T telephone wires encased in asbestos and a fiber optic line underneath the sidewalk on the 36-foot-wide, 125-foot-long Paramount bridge that crosses the freeway. After unearthing all the lines, crews built an I-beam to drape the lines across to keep from disrupting telephone service. Once that was complete, work began on demolishing the eastern side of the bridge that was burned and damaged when a truck hauling 9,000 gallons of gasoline burst into flames just under the Paramount Boulevard bridge. Rather than just knock down the damaged section of bridge, workers must gingerly dismantle it, taking care not to release cancer causing asbestos into the air or cut telephone communications to thousands of people. "It's pretty complicated," said Scott J. Brandenberg, an associate professor of engineering at UCLA. "Bridges are designed to be built to last and stay in place. They're not like interchangeable pieces where you pop out a bridge and put a new one in place." The western half of the bridge was determined to be structurally sound and didn't need to be demolished. Had that been the case, the closure could have lasted through the weekend and potentially into the next week, said Patrick Chandler, spokesman for Caltrans. Meanwhile, state Sen. Ron Calderon said he and Montebello Mayor Frank Gomez will ask Gov. Jerry Brown to declare a state of emergency for the area that will allow California to ask for federal help. ASBESTOS UPDATE: Eternit Case to Close on EUR18 Million Settlement ------------------------------------------------------------------ The Agenzia Giornalistica Italia reports that with a tense night vote, the Casale Monferrato (Alessandria) city council voted on the Eternit composition. The mayor is now authorized to settle with Stephan Schmidheiny, co-accused with the Belgian baron Louis de Cartier of the Eternit slaughter. According to Forbes, Stephan Schmidheiny owns Eternit, a company that produced asbestos reinforced cement. Schmidheiny is among the defendants on trial involving allegations of negligence at four Italian asbestos-cement plants which prosecutors say caused deaths of around 2,000 workers and local residents. The asbestos victims were 2889 at the beginning of the trial. Now, two year later, their number has increased by at least 200. 1800 of them were concentrated in Casale. The news appears on the front page of the daily 'Il Monferrato.' The compensation amounts to EUR18 million. With the vote, the City of Casale closes once for all the case, renouncing to any future actions against Stephan Schmidheiny. ASBESTOS UPDATE: "Wet" Demolition Method May Have Exposed Workers ----------------------------------------------------------------- Darren Barbee at the Star-Telegram reports that the EPA's approval of an experimental asbestos demolition method at a Fort Worth apartment building in 2007 may have exposed workers and the public to carcinogenic fibers, according to a new federal report. The EPA should notify all workers who took part in the experiment and people who were in the vicinity of the work, according to the report from the agency's inspector general. Fort Worth was the first urban area to test a "wet" method of demolition, in which crews can take down a building without first removing the asbestos. Instead, workers soak walls and ceilings with soapy or foamy water during demolition to try to keep the fibers from being released into the air. Fort Worth used the method to demolish a building at the Oak Hollow apartments on Boca Raton Boulevard. The technique is an alternative to the EPA's approved methods. The wet method was intended to save money as well as offer additional protection to workers, who could stand several yards away while soaking a structure. However, settled-dust results obtained from testing during demolition experiments at Fort Chaffee, Ark., and at the Oak Hollow apartments "demonstrated asbestos fiber releases," according to an inspector general's "early warning report." Use of the "unapproved methods threatens health and safety," the report says. But Fort Worth officials said the report -- a two-page memo -- is unclear since it recommends that "EPA should assess whether any authorizations resulted in potential asbestos exposure of workers or the public, and notify them accordingly." Michael Gange, a city assistant director over environment management, said a pending study will give far greater detail and data on the demolition technique, but that study hasn't been published. Gange was at the apartment site when the demolition was conducted and said he saw no emissions during the demolition. "Basically they're saying, 'Hey, you found some potential emissions; did you actually have an exposure or not? You need to assess that and find that out.'" Asked whether Fort Worth would conduct such an assessment, Gange said the assessment request made by the inspector general was for EPA scientists to review the data. Public Justice, a national public advocacy group, said that it had long urged the EPA to shut down its asbestos-removal experiments but that the agency would not. Public Justice and the Natural Resources Defense Council filed a Freedom of Information Act request to get the underlying data about the experiments. The EPA did not release most of the documents -- more than 26,000 pages -- until after the groups sued to force disclosure, according to the group's Web site. "The released documents include several showing that one of the EPA's own senior scientists found that the asbestos-removal tests did not comply with health and safety standards and may have endangered demolition workers and agency employees," the group said. Jim Hecker, the director of Public Justice's Environmental Enforcement Project, said he hopes that the new report "will finally put the nail in the coffin of this unapproved and dangerous method of asbestos removal." The EPA said it is investigating allegations of ongoing human- health threats from improper asbestos removal and disposal. "The agency will take whatever steps are necessary to protect the health of anyone who might be exposed. Moreover, if there have been past incidents of exposure, the EPA will take appropriate steps to identify them and to address any health threats," said a memorandum from Bob Perciasepe, EPA deputy administrator. In Fort Worth four years ago, demolition work began in the early morning as nearby pedestrians walked to school. An excavator flattened the apartments' office building. The EPA had set up rows of air-sampling monitors at the site." Video footage and photos show government employees and contractors at the demolition sites without personal protective equipment, a possible violation of OSHA asbestos worker protection requirements," the inspector general's report says. Settled-dust results indicate that asbestos escaped the restricted areas, so unprotected workers adjacent to the restricted areas and any members of the public in the vicinity of the sites may have been exposed, the report says. The EPA should identify the workers who were present and notify them according to OSHA regulations, according to the report. In 2007, the EPA and the Department of State Health Services agreed not to enforce regulations so that the demolition test could take place. At the time, there was a long-running national debate over how best to demolish asbestos-contaminated structures. Public Justice had successfully held off a similar process in Fort Worth in 2005, Hecker said. The federal government requires that asbestos be removed from buildings before they are demolished. Asbestos is a human carcinogen with no safe level of exposure. Asbestos exposure can lead to serious diseases such as asbestosis, lung cancer and mesothelioma. The diseases can develop decades after exposure. ASBESTOS UPDATE: Former Worker at SGIO Diagnosed with Mesothelioma ------------------------------------------------------------------ The Queensland Times reports that any Ipswich people who worked at the former SGIO building in Brisbane during the 1980s are being warned about the dangers of asbestos, after the recent diagnosis of an Everton Hills man with mesothelioma. Slater and Gordon is pursuing a claim on behalf of a 69-year-old man, who was diagnosed with the asbestos-related cancer in November. The client worked at the former SGIO building -- now the Suncorp Metway Plaza building located on the corner of Albert and Turbot Sts. -- as a CTP insurance investigator from 1988 to 1992. Slater and Gordon asbestos lawyer Carl Hughes said the first confirmed diagnosis of mesothelioma relating to the SGIO building occurred more than 10 years ago. Mr. Hughes said it was alleged that his client had been exposed to and inhaled asbestos fibers in the course of his employment as a result of poor renovation works. It is alleged an asbestos-based lagging was sprayed on steel framework as a fire retardant within the SGIO building. SGIO then contracted a company to remove asbestos from the building, a process which is thought to have been completed throughout the 1980s. ASBESTOS UPDATE: Coroner Passes Final Verdict On Misdiagnosed Man ----------------------------------------------------------------- Alex Evans at The Weston Mercury reports a man who was misdiagnosed in hospital died from asbestos exposure, Flax Bourton Coroners Court heard. Ronald Goldsworthy, aged 70, of Coulson Drive, Weston, was working as a boiler fitter in the late 1950s and early 1960s, conditions which would have led to him being exposed to asbestos, the coroner heard. He was initially diagnosed with a type of mesothelioma in 2008. But after review by a series of doctors, his diagnosis was changed. But his condition then deteriorated three years later and he was again diagnosed with the disease before he died on May 21. Coroner Terrence Moor read a doctor's report stating that the normal life expectancy with the disease is six months. He said: "It is highly unusual for a man with a dying notice to survive for three years. One possible explanation is that he developed it during the last year of his life." Mr. Moor said: "I have little doubt that his exposure to asbestos would be sufficient and on that basis the verdict is death by industrial disease." ASBESTOS UPDATE: Widow Calls Out to Husband's Former Co-Workers --------------------------------------------------------------- Anuji Varma at Sunday Mercury reports that a former British Leyland worker who died from asbestos-related cancer may have been exposed to the deadly dust at the Birmingham plant, it was claimed Dec.17. Wilfred Allen worked at the car manufacturer's Drews Lane factory in Washwood Heath between 1962 and 1976. But he died from mesothelioma -- a cancer caused by exposure to asbestos -- in April 2009, at age 72. Now widow Joyce, 73 and from Great Barr, has launched a legal battle to discover if he contracted the disease while at British Leyland, which later became the MG Rover Group. "I believe Wilfred's health problems were caused during the 14 years he spent working there as a machine operator," explained the pensioner, who had been married for 51 years. "He worked at various departments at the Drews Lane site. It was a massive plant and over the years he worked in B, C and K Blocks. "He remembered there were a lot of exposed heating pipes in the ceilings, covered in asbestos lagging. The machinery was very noisy and caused a lot of vibration. "He used to tell me that he could see clouds of dust floating around in the air." An inquest in November 2009 confirmed that Mr. Allen had died from an industrial disease. Former receptionist Joyce is now looking to contact former work colleagues who may be able to provide additional information to help her legal case. "Wilfred worked hard all his life and to know his work may have killed him is hard to bear," she said. "Our two children, David and Janet, have also been devastated by his death and we are all desperate to see justice done. "If anyone remembers working with Wilfred, I would like to hear from them." Solicitors at Birmingham-based lawyers Irwin Mitchell are dealing with the case. Kim Barrett -- kim.barrett@irwinmitchell.com -- who is representing the family, said: "Wilfred knew that asbestos exposure was responsible for the aggressive cancer he had been diagnosed with. "He underwent several rounds of chemotherapy and was determined to battle the illness for as long as possible. "He was also determined to fight for justice and had commenced legal action just before his untimely death." If you worked with Wilfred, you can call Irwin Mitchell on 0870 1500 100 or e-mail kim.barrett@irwinmitchell.com ASBESTOS UPDATE: Fiber Exposure of 16 Hours Could Be Fatal ---------------------------------------------------------- The Mesothelioma Center reports that Roger Hammett was awarded $1.45 million on Dec. 15 after a jury ruled that his mesothelioma cancer was caused by asbestos exposure from a job that he held 45 years ago. The case also revealed something interesting that is not often seen in most mesothelioma cases: Hammett developed mesothelioma after only working 67 days around asbestos. The Dec. 15 verdict may provide Hammett with some justice now that he is only expected to live for one more year, but it may also provide some clarity into the relationship between asbestos exposure and this aggressive cancer. Mesothelioma is a rare disease of the lining of the lungs that is primarily caused by asbestos exposure. It is often associated with industrial workers, asbestos factory workers, miners, Navy veterans and construction workers. In the case of Hammett, about two months of exposure yielded the same effect as many other patients who worked with asbestos for years. In 1966, he worked on a ship known as the SS Seattle, which traveled from Seattle, Washington, to Anchorage and Kodiak Island, Alaska, and back. During this 67-day period, he states that he was exposed to asbestos, which caused his mesothelioma decades later. The jury agreed that his asbestos exposure during his service on the SS Seattle was to blame for his cancer, despite the short period of exposure. Mesothelioma and other asbestos-related diseases are caused after asbestos fibers are ingested or inhaled. Because of the structure and composition of these fibers, the body has a difficult time getting rid of them. Over the course of many years, the fibers react with and scratch the lining of the lungs or other organs causing significant damage. After 20 to 50 years, this damage can eventually develop into mesothelioma. More commonly, this process occurs when an employee works for years within an environment where asbestos is present. For example, asbestos miners, ship builders and steel workers all work in environments with known asbestos exposure. Because employees tend to work in these fields for years, they eventually inhale or ingest enough asbestos to develop cancer later in life. Each case of mesothelioma is different, and the development of the cancer is dependent on the type of exposure, the duration, prior health and medical issues, lifestyle choices and other factors. No exact amount of asbestos exposure has yet been linked to the development of cancer. We are all exposed to some trace amounts of asbestos in our daily lives, but these amounts are rarely enough to cause cancer. According to the Environmental Working Group (EWG), about 3% of mesothelioma cases involve exposure of less than three months. One study found the shortest asbestos exposure period on record to cause mesothelioma was a mere 16 hours of exposure. Such a rare and limited exposure period may provide context as to how dangerous the toxic material can be. By most accounts, Hammett's case is fairly unique when compared to other patients who develop mesothelioma after years of working in an at-risk occupation. His unfortunate diagnosis falls within the rare 3% of patients who contract mesothelioma following less than three months of exposure. Some first responders to the World Trade Center on Sept. 11, 2001, are among this 3% group. Immediately after the 9/11 attacks on the World Trade Center, rescue workers hurried to Ground Zero where asbestos fibers were plentiful in the air. While assisting in the rescue, recovery and cleanup, some first responders received significant amounts of asbestos exposure. Deborah Reeve, a 41-year-old first responder, died from mesothelioma just a few years after exposure. Some accounts list her direct exposure to asbestos at about eight months. Another 9/11 first responder, Robert Oswain, died of mesothelioma in May 2010 and his only known exposure to asbestos took place in the 9/11 aftermath. Like Hammett, these developments of mesothelioma did not reflect an extensive career in an occupation known for asbestos exposure. Asbestos has been present at countless jobsites and in thousands of products throughout the United States. Since scientific evidence of its link to cancer was substantiated in the in 1960s and 1970s, the toxic substance has been used less frequently. Currently, the United States regulates asbestos but has failed to ban the toxic material. Because of the cancer's long latency period, cases of mesothelioma are still arising today from exposure that took place during the decades when asbestos use was rampant. ASBESTOS UPDATE: Eagle Recycling Faces $600,000 Fine ---------------------------------------------------- The Associated Press reports that a New Jersey recycling company has agreed to pay a $500,000 fine for helping to illegally dump more than 8,000 tons of construction debris at a farm in upstate New York. North Bergen-based Eagle Recycling was sentenced on Dec. 19 in Utica, N.Y. The company will have to pay more than $70,000 in restitution and cleanup costs. Earlier this year Eagle pleaded guilty to conspiring to violate the Clean Water Act's ban on filling wetlands and committing wire fraud in order to do it. Prosecutors say Eagle and its co-conspirators dumped the asbestos- contaminated debris on farmland near New York's Mohawk River in 2006 and disguised the crime by using a fake state permit. The conspirators allegedly planned to continue dumping the refuse in wetlands and the river's flood plain over five years. ASBESTOS UPDATE: Lawyers Slam ATRF Report on Steep Settlements -------------------------------------------------------------- Andrew Thomason at The Illinois Statehouse News reports that a central Illinois county has been deemed a "judicial hellhole" for its practice of handing out large settlements to plaintiffs in civil cases, according to a nonprofit that focuses on judicial reform. The American Tort Reform Foundation, or ATRF, listed McLean County among judicial systems with judges and courts who generally favor these types of lawsuits. McLean County landed on the list for the first time this year because of its recent history of judges awarding more than $120 million settlements for asbestos-related cases, according to ATRF. The defendants had made asbestos products or had no direct connection to the plaintiff's injury. Illinois does not cap settlements for asbestos-related cases. The largest jury award came in March when a plaintiff received $90 million for asbestos-related injuries he received while working for a now bankrupt company in the 1970s. The company wasn't named as a defendant. Instead, two other companies were sued, because they knew asbestos was harmful but didn't speak up. "It's an attempt to go after deep pockets is what this is all about," said Travis Akin, executive director for Illinois Lawsuit Abuse Watch, a judicial reform group. In 2010, 15 asbestos-related cases were filed in McLean County. "When you begin to develop a reputation for allowing these kinds of things to happen, you immediately draw in interests in filing lawsuits in those particular jurisdictions," Akin said. The Illinois Trial Lawyers Association, which lobbies on behalf of trial lawyers, blasted the ATRF's report. They said the report is based on poor research and is meant to push legislative tort reforms that favor businesses. "This so-called report is nothing more than a public relations stunt designed to further their political and legislative strategies to prevent individual citizens from exercising their rights," Jerry Latherow, president of the of Illinois Trial Lawyers Association, said. ATRF touts on its Web site that it works "to help bring greater fairness, efficiency, and predictability to our civil justice system by educating the public, the media, and policymakers about the need for a balanced civil justice system, how the American civil justice system operates, the role of tort law in the civil justice system, and the impact of tort law on the private, public and business sectors of society." Higher courts have tossed out some verdicts. In McLean County in 2009, a woman was awarded $2.7 million after she contracted a rare form of cancer linked to breathing in asbestos fibers from her husband's clothing after he came home from work. Like the man in the $90 million case, the woman didn't sue the business directly responsible for her asbestos-related cancer. Instead, she sued other companies for conspiring to keep the dangers of asbestos secret, according to court documents. The 4th District Illinois Appellate Court in July dismissed the woman's claim for lack of evidence. ASBESTOS UPDATE: Children of Former Employee Sue Chevron USA ------------------------------------------------------------ David Yates at The Southeast Texas Record reports that a certificate of discovery was recently filed in an asbestos suit against Chevron USA. On behalf of Thaddeus Alpough, Mary Alpough and her siblings filed the suit Aug. 16 in Jefferson County District Court, alleging Chevron exposed their late father to asbestos during his employment with the company. Court records show that on Nov. 2 the plaintiffs filed their answers and objections to Chevron's interrogatories. The petition states that Alpough worked at Chevron's Port Arthur refinery as a boilermaker helper and pipefitter - occupations that exposed him to asbestos dust and fibers. "As a result of such exposure, Thaddeus Alpough developed asbestos-related pleural disease, lung cancer and then gastric cancer, for which he died a painful and terrible death on May 7, 2010," the suit states. Chevron is accused of knowing that asbestos products could cause cancer but still chose to expose workers, such as Alpough. The Alpough family is suing for punitive and exemplary damages. Beaumont attorney Keith Hyde of the Provost Umphrey law firm represents the family. Judge Gary Sanderson, 6oth District Court, is assigned to the case. Case Number is B190-682. ASBESTOS UPDATE: Historic Niagara and Contractor Co Plead Guilty ---------------------------------------------------------------- Brett Clarkson of the Niagara Falls Review reports that the company at the center of the downtown Niagara Falls revitalization has been fined $37,500 after failing to notify a construction company of the presence of asbestos at the burned out Rosbergs department store site. Historic Niagara Development Inc. pleaded guilty in provincial court on Dec. 16, to the charge, laid under the provincial Occupational Health and Safety Act, said Ministry of Labour spokesman Matt Blajer. Blajer said the fine against Historic Niagara was $30,000. In addition to that, however, the company was also ordered to pay a surcharge of 25% to go toward a provincial fund for victims of crime, Blajer said. The so-called victims' surcharge amounts to another $7,500. "Historic Niagara Development Inc. pleaded guilty and a fine of $30,000 was imposed," Blajer said. The charge was laid in connection with Historic Niagara's efforts to clean up the debris that had been left by the Oct. 4, 2009 blaze that gutted the iconic former department store at Queen St. and Erie Ave., kitty corner to City Hall. The charges were laid in September 2010, according to the Ministry of Labour. At the time, an undisclosed person was charged, but the charge brought against that person was dropped. Givic Construction, the Falls-based construction company that was hired by Historic Niagara to demolish the former department store after it burned down, was also charged with failing to ensure that a worker was advised of the existence of asbestos on the site. Givic also pleaded guilty, according to Blajer. The total fine against Givic was $17,500. Representatives of both Historic Niagara Development Inc. and Givic Construction weren't immediately available for comment. Asbestos is a naturally occurring mineral fiber that was widely used in construction materials and building insulation until about the 1970s. Exposure to airborne asbestos particles can lead to lung ailments including cancer. Rosbergs was for decades a family-owned department store at Queen St. and Erie Ave. After it burned in 2009, fire officials determined the blaze was deliberately set, although no charges have ever been brought against anybody. Historic Niagara and its associated companies, spearheaded by businessman Mordechai Grun, acquired about 40 downtown properties since about the early 2000s. Grun, once an avid promoter of the effort to revitalize the long-dormant street, is no longer seen on Queen St. City staff also decided in August that they were done waiting for Historic Niagara to fill in the giant hole that had been left at the Rosbergs site. City director of building services John Castrilli said at the time that the city would use its own surplus dirt and fill material to fill the hole. ASBESTOS UPDATE: 3M, AO Smith Directed to Pay Document Costs ------------------------------------------------------------ George Donald Ellis and Sidney William Mauney moved to compel 3M Company, et al., and AO Smith Corp., et al., to contribute to the costs of obtaining discovery from non-party Duke Energy, Inc., in a litigation involving asbestos liabilities. The motion to compel followed an earlier order directing Messrs. Ellis and Mauney to reimburse Duke for certain of its costs in making the production in response to their subpoenas. United Conveyor Corp. filed a related motion seeking leave to serve supplemental discovery on Messrs. Ellis and Mauney directed to the details of the Duke documents they selected. In a Dec. 9, 2011 memorandum and opinion, Judge Elizabeth T. Hey of the U.S. District Court for the Eastern District of Pennsylvania denied Messrs. Ellis and Mauney's motion holding that defendants are not required to share in the cost of production, except for those defendants who received Duke documents. Judge Hey concluded that the presence of a defendant during one or more days of the document review involved in Phases I, II and III does not merit contribution by that defendant to the amounts Messrs. Ellis and Mauney paid to reimburse Duke. Judge Hey pointed out that the defendants' participation in the review were at their own cost. Judge Hey further pointed out that the defendants who asked copies of documents retained their own service for that purpose and did not ask or receive any documents from Messrs. Ellis and Mauney. Judge Hey, however, directed Messrs. Ellis and Mauney to identify all defendants who requested and received a set of Phase I documents and the date the documents were provided. Any defendant who requested and received Phase I Duke documents will pay their pro rata share of $9,000. Judge Hey denied United Conveyor's motion in light of her conclusion that it was Messrs. Ellis and Mauney who necessitated Duke's Phase II and Phase III productions and that defendants are not required to share in the cost of the production. The case is In re Asbestos Products Liability relating to George Donald Ellis v. 3M Company, et al., and Sidney William Mauney v. AO Smith Corp., et al., Nos. MDL 875, 10-83254, 10-83255 (E.D. Pa.). A copy of Judge Hey's Decision is available at http://is.gd/PjhH8Jfrom Leagle.com. ASBESTOS UPDATE: Ala. Ct. Says Suit Can Proceed Despite Bankruptcy ------------------------------------------------------------------ Betty Bradberry and Inez T. Jones, as the "personal representatives of the heirs-at-law and wrongful death beneficiaries of" the decedents, Roland E. Bradberry and George D. Jones, appeal from summary judgments rendered by a trial court in favor of Carrier Corporation, Leslie Controls, Inc., and multiple other defendants in a wrongful-death action based on the decedents' exposure to asbestos in their work environment. Mses. Bradberry and Jones argue that the trial court's order setting the defendants' motions for summary judgment for a hearing and requiring the plaintiffs to submit substantive response to those motions violated the automatic stay provision of the Bankruptcy Code. The argument is premised on the plaintiffs' general contention that Leslie Controls' filing for bankruptcy in July 2010 completely stayed all litigation in which Leslie Controls was involved, including litigation involving solvent defendants. Approximately 20 defendants filed for bankruptcy, some as early as 2004. However, only when Leslie Controls filed for bankruptcy did the plaintiffs contend that the case was stayed as to all defendants. In a Dec. 16, 2011 memorandum and opinion, Judge Michael F. Bolin of the Supreme Court of Alabama held that Leslie Controls' petition in bankruptcy did not automatically stay the litigation as to all remaining solvent defendants and that the trial court did not violate the automatic stay provision of Section 362 by moving forward with the summary-judgment hearing in the case. According to the plaintiffs, their wrongful-death action cannot be split into multiple actions. They argued that Leslie Controls could not be severed from the case because the wrongful-death action was an indivisible claim and a severance would result in two separate actions bring prosecuted. Therefore, the plaintiffs insist, the bankruptcy of Leslie Controls must necessarily stay the wrongful-death action as to all remaining solvent defendants. Judge Bolin maintained that Section 362 stays only an action against Leslie Controls; it does not stay the action against the remaining solvent defendants. The trial court, Judge Bolin said, is not required to enter an order formally severing and staying the action as to Leslie Control or dismissing Leslie Controls from the action. The Supreme Court pointed out that the stay provision in Section 362 was automatically triggered as to Leslie Controls at the time it filed its bankruptcy petition. Addressing the plaintiffs' contention that the trial court's allowing the case to proceed on the solvent defendants' motions for a summary judgment while the case was stayed as to Leslie Controls amounts to an impermissible splitting of their wrongful- death action, Judge Bolin held that because a wrongful-death action may be prosecuted against joint tortfeasors either jointly or separately, the trial court's allowing the case to proceed against the solvent defendants while the action was stayed as to Leslie Controls pursuant to Section 362 does not in itself amount to an impermissible splitting of the wrongful-death action in this case. The plaintiffs next stated that because the trial court proceeded with a hearing on the solvent defendants' summary-judgment motions, the plaintiffs would possibly be faced with the application of the doctrine of res judicata or collateral estoppel to bar later litigation against Leslie Controls. Judge Bolin pointed out that the doctrine of res judicata would not apply to any subsequent litigation between the plaintiffs and Leslie Controls because there would not be substantial identity of the parties in any litigation between the plaintiffs and the solvent defendants and subsequent litigation between the plaintiffs and Leslie Controls. Although the solvent defendants and Leslie Controls are joint tortfeasors in this single cause of action for wrongful death, they are not identical parties to the litigation, Judge Bolin added. The case is Bradberry v. Carrier Corporation, et al., No. 1100994 (Ala. Sup. Ct.). A copy of Judge Bolin's Decision is available at http://is.gd/AJ2JNTfrom Leagle.com. ASBESTOS UPDATE: NY Ct. Directs Georgia-Pacific to Produce Docs --------------------------------------------------------------- Georgia-Pacific, LLC, a defendant in a consolidated asbestos litigation in the New York County Supreme Court objected to and sought vacatur of two recommendations directing an in camera review of all internal attorney-client and work-product documents and the production of all materials and raw data underlying several published studies funded by Georgia-Pacific relating to the health effects of its joint compound. In a Dec. 12, 2011 memorandum and opinion, Judge Sherry Klein Heitler confirmed the first recommendation holding that an in camera review of Georgia-Pacific's internal communications with regard to all of the published articles is warranted. Judge Heitler also confirmed the second recommendation but limited the production of documents to the data, samples, and materials, which relate to those studies whose results have been published or will be published. The Court did not require Georgia-Pacific to produce any internal communications, which portray its attorney's or consultants' notes, comments or opinions. The case is In re: New York City Asbestos Litigation, No. 400000/88 (N.Y. Sup. Ct.). A copy of Judge Heitler's Decision is available at http://is.gd/0j22lpfrom Leagle.com. ASBESTOS UPDATE: Dist. Ct. Allows Disclosure of Doctors' Reports ---------------------------------------------------------------- Plaintiffs in a consolidated asbestos products liability litigation pending before the U.S. District Court for the Eastern District of Pennsylvania filed motions for protective orders related to discovery matters involving one or more of their principal diagnosing and testifying expert physicians, Dr. Alvin J. Schonfeld, Dr. Henry Anderson, and Dr. Ibrahim Sadek and the anticipated Daubert motions excluding their physicians' diasgnoses and testing results. In a Dec. 13, 2011 memorandum opinion, Magistrate Judge David R. Strawbridge granted the plaintiff's motions for protective order to the extent that they: -- pertain to the identification of "personnel or entities involved in screenings or medical evaluations of Plaintiff," who is not currently a pending plaintiff represented by Cascino Vaughn Law Offices in MDL-875; and -- pertain to the identification of documents regarding all persons represented by CVLO who are not currently pending plaintiffs in MDL-875. Judge Strawbridge denied the plaintiffs' motions for protective order to the extent that they: -- pertain to the identification of "personnel or entities involved in screenings or medical evaluations of Plaintiff," who is a currently pending CVLO plaintiff in MDL-875; and -- pertain to the identification of documents regarding any plaintiff who is a currently pending CVLO plaintiff in MDL-875. The Plaintiffs also filed a motion to compel defendants to produce any information they had collected regarding Drs. Schonfeld, Anderson, and Sadek, pursuant to Rule 26(a)(1)(A)(ii) of the Federal Rule of Civil Procedure. Judge Strawbridge denied this motion holding that there are implications of protection of the attorney's work product. Judge Strawbridge added that Rule 26(a)(1), which applies to initial disclosures, does not apply to expert testimony. Judge Strawbridge also denied the plaintiffs' motion to compel the law firm of Forman, Perry, Watkins, Krutz & Tardy, LLP, to turn over all documents in their possession concerning Drs. Schonfield and Anderson from the W.R. Grace & Co. Bankruptcy Trust. In 2006, Judge Judith Fitzgerald of the U.S. Bankruptcy Court for the District of Delaware, presiding over WR Grace's case, prohibited the use or disclosure of the x-ray evidence used by Dr. Daniel Henry in rendering his report. Dr. Henry is the defendants' consultant in this asbestos litigation. Judge Strawbridge said it is not appropriate for him to interpret Judge Fitzgerald's order. The case is In re Asbestos Products Liability Litigation, Civil Action No. MDL 875 (E.D. Pa.). A copy of Judge Strawbridge's Decision is available at http://is.gd/011qPdfrom Leagle.com. ASBESTOS UPDATE: Del. Ct. Remands Suit for Award Determination -------------------------------------------------------------- Dana Companies, LLC, and Zoom Performance Products, a trade name of Perfection Hy-Test Company, appeal from a Superior Court order denying their post-trial motions for judgment as a matter of law or, alternatively, for a new trial. A Superior Court jury found the companies partially liable for asbestos-related mesothelioma suffered by the decedents, Bruce Henderson and his mother, Elizabeth Henderson. The trial court denied the defendants' motions on the ground that the jury verdict was supported by sufficient evidence. In a Dec. 14 memorandum and opinion, a three-panel judge composed of Judges Randy J. Holland, Jack B. Jacobs, and Henry DuPont Ridgely of the Supreme Court of Delaware affirmed in part and reversed in part the trial court's decision. The Supreme Court held that the trial court's order upholding the verdict awarding Elizabeth's heirs $80,000 for her pain and suffering, was contrary to the court's instructions to the jury to "consider the evidence as it relates to each claim separately, as . . . if each claim had been tried before you separately." The Supreme Court therefore remanded the case to the trial court to reconsider whether additur is warranted. On remand, the trial court will consider the adequacy of each damages award solely in light of the evidence that bears on each claim, respectively, and without reference to the jury awards for other, separate claims. The Supreme Court said the trial court committed error when it considered the adequacy of Bruce's $0 award for loss of consortium due to his mother's death, yet upheld the jury award of $1.16 million for Bruce's pain and suffering. The Supreme Court pointed out that Bruce was alive when his mother died in 2008, and he remained alive until 2010. It therefore is arguable that Bruce suffered a loss of consortium attributable to his mother's wrongful death during the same time that he experienced the pain and suffering for which the jury awarded him damages, the Supreme Court said. The trial court did not explain why a jury would decide that a wrongful death award for Bruce Henderson "would have made little sense," but that an award for pain and suffering (apparently) would make sense, the Supreme Court noted. Therefore, the Supreme Court remanded the proceedings for the trial court to determine whether Louisiana law permits a deceased plaintiff to be awarded damages in a wrongful death action and, if so, to reconsider the plaintiffs' motion for additur for Bruce's $0 award for loss of consortium. The case is Dana Companies, LLC v. Crawford, Nos. 108, 2011, 109, 2011 (Del. Sup. Ct.). A copy of the Dec. 14 Decision is available at http://is.gd/8QWzKnfrom Leagle.com Dana Companies is represented by: Beth E. Valocchi, Esq. Joseph S. Naylor, Esq. SWARTZ CAMPBELL LLC 300 Delaware Ave., Ste 1130 Wilmington, DE 19801 Tel: (302) 656-5935 Fax: (302) 656-1434 E-mail: bvalocchi@swartzcampbell.com jnaylor@swartzcampbell.com - and - William R. Hanlon, Esq. Valerie E. Ross, Esq. Jeffrey D. Skinner, Esq. GOODWIN PROCTER LLP 901 New York Ave., NW Washington, D.C. 20001 Tel: (202) 346-4000 Fax: (202) 346-4444 E-mail: whanlon@goodwinprocter.com vross@goodwinprocter.com jskinner@goodwinprocter.com Zoom Performance Products is represented by: Timothy Jay Houseal, Esq. Jennifer M. Kinkus, Esq. William E. Gamgort, Esq. YOUNG CONAWAY STARGATT & TAYLOR LLP The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE Tel: (302) 571-6600 Fax: (302) 571-1253 E-mail: thouseal@ycst.com jkinkus@ycst.com wgamgort@ycst.com Betty Sue Crawford and Kathy Lenzen, as personal representatives to the estate of Elizabeth Henderson and Bruce Henderseon, are represented by: Joseph J. Rhoades, Esq. Stephen T. Morrow, Esq. LAW OFFICES OF JOSEPH J. RHOADES Legal Arts Building 1225 King Street, Suite 1200 P.O. Box 874 Wilmington, DE Tel: (302) 427-9500 Fax: (302) 427-9509 - and - Jerome H. Block, Esq. Amber R. Long, Esq. Victoria E. Phillips, Esq. LEVY PHILLIPS & KONIGSBERG LLP 800 Third Avenue, 11th Floor New York, NY 10022 Tel: (212) 605-6200 ASBESTOS UPDATE: Cabot Reserves $11MM at Sept. 30 for Liabilities ----------------------------------------------------------------- Cabot Corporation has a reserve of $11 million at September 30, 2011, for future asbestos, silica and coal mine dust claims that would be filed and the related costs that would be incurred in resolving both currently pending and future claims, according to the Company's November 29, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. Cabot has exposure in connection with a safety respiratory products business that a subsidiary acquired from American Optical Corporation in an April 1990 asset purchase transaction. The subsidiary manufactured respirators under the AO brand and disposed of that business in July 1995. In connection with its acquisition of the business, the subsidiary agreed, in certain circumstances, to assume a portion of AO's liabilities, including costs of legal fees together with amounts paid in settlements and judgments, allocable to AO respiratory products used prior to the 1990 purchase by the Cabot subsidiary. In exchange for the subsidiary's assumption of certain of AO's respirator liabilities, AO agreed to provide to the subsidiary the benefits of: (i) AO's insurance coverage for the period prior to the 1990 acquisition and (ii) a former owner's indemnity of AO holding it harmless from any liability allocable to AO respiratory products used prior to May 1982. Generally, these respirator liabilities involve claims for personal injury, including asbestosis, silicosis and coal worker's pneumoconiosis, allegedly resulting from the use of respirators that are claimed to have been negligently designed or labeled. Neither Cabot, nor its past or present subsidiaries, at any time manufactured asbestos or asbestos-containing products. Moreover, not every person with exposure to asbestos, silica or coal mine dust giving rise to a claim used a form of respiratory protection. At no time did this respiratory product line represent a significant portion of the respirator market. In addition, other parties, including AO, AO's insurers, and another former owner and its insurers (collectively, the "Payor Group"), are responsible for significant portions of the costs of these liabilities, leaving Cabot's subsidiary with a portion of the liability in only some of the pending cases. The subsidiary transferred the business to Aearo Corporation ("Aearo") in July 1995. Cabot agreed to have the subsidiary retain certain liabilities allocable to respirators used prior to the 1995 transaction so long as Aearo paid, and continues to pay, Cabot an annual fee of $400,000. Aearo can discontinue payment of the fee at any time, in which case it will assume the responsibility for and indemnify Cabot against the liabilities allocable to respirators manufactured and used prior to the 1995 transaction. Cabot anticipates that it will continue to receive payment of the $400,000 fee from Aearo and thereby retain these liabilities for the foreseeable future. Cabot has no liability in connection with any products manufactured by Aearo after 1995. As of September 30, 2011 and 2010, there were approximately 42,000 and 45,000 claimants, respectively, in pending cases asserting claims against AO in connection with respiratory products. Cabot has contributed to the Payor Group's defense and settlement costs with respect to a percentage of pending claims depending on several factors, including the period of alleged product use. In order to quantify Cabot's estimated share of liability for pending and future respirator liability claims, Cabot engaged, through counsel, the assistance of Hamilton, Rabinovitz & Alschuler, Inc., a leading consulting firm in the field of tort liability valuation. The methodology developed by HR&A addresses the complexities surrounding Cabot's potential liability by making assumptions about future claimants with respect to periods of asbestos, silica and coal mine dust exposure and respirator use. Using those and other assumptions, HR&A estimated the number of future asbestos, silica and coal mine dust claims that would be filed and the related costs that would be incurred in resolving both currently pending and future claims. On this basis, HR&A then estimated the net present value of the share of these liabilities that reflected Cabot's period of direct manufacture and Cabot's contractual obligations. Based on the HR&A estimates, Cabot has a reserve for these matters of $11 million on a net present value basis ($16 million on an undiscounted basis) at September 30, 2011. Cabot's current estimate of the cost of its share of existing and future respirator liability claims is based on facts and circumstances existing at this time. Developments that could affect its estimate include, but are not limited to, (i) significant changes in the number of future claims, (ii) changes in the rate of dismissals without payment of pending silica and non-malignant asbestos claims, (iii) significant changes in the average cost of resolving claims, (iv) significant changes in the legal costs of defending these claims, (v) changes in the nature of claims received, (vi) changes in the law and procedure applicable to these claims, (vii) the financial viability of members of the Payor Group, (viii) a change in the availability of AO's insurance coverage or the indemnity provided by AO's former owner, (ix) changes in the allocation of costs among the Payor Group and (x) a determination that the Company's assumptions regarding the contractual obligations on which it has estimated its share of liability are inaccurate. Cabot cannot determine the impact of these potential developments on its current estimate of its share of liability for existing and future claims. Accordingly, the actual amount of these liabilities for existing and future claims could be different than the reserved amount. The $11 million liability for respirator claims is recognized on a discounted basis using a discount rate of 5.3%, which represents management's best estimate of the risk free rate to apply to the cash flow payments of the liability that are projected through 2062. The total expected aggregate undiscounted amount of future payments is $16 million. Cabot estimates payments of approximately $2 million, $1 million, $1 million, $1 million, and $1 million in fiscal 2012, 2013, 2014, 2015 and 2016, respectively, and a total of $10 million in fiscal 2017 through 2062. The book value of the liabilities will be accreted up to the undiscounted liability value through interest expense over the expected cash flow period, which was less than $1 million in fiscal 2011. Cash payments were $5 million in fiscal 2011 and $2 million in each of 2010 and 2009 related to this liability. If the timing of Cabot's actual payments made for respirator claims differs significantly from the Company's estimated payment schedule, and the Company determines that it can no longer reasonably predict the timing of such payments, Cabot then could be required to record the reserve amount on an undiscounted basis on its Consolidated Balance Sheets, causing an immediate impact to earnings. Cabot Corporation is a global specialty chemicals and performance materials company headquartered in Boston, Massachusetts. Its principal products are rubber and specialty grade carbon blacks, fumed metal oxides, inkjet colorants, aerogels and cesium formate drilling fluids. Cabot and its affiliates have manufacturing facilities and operations in the United States and approximately 20 other countries. Cabot's business was founded in 1882. ASBESTOS UPDATE: JC Penney Estimates $27MM Liabilities at Oct. 29 ----------------------------------------------------------------- J. C. Penney Company, Inc., estimated its total potential environmental liabilities to range from $26 million to $33 million and recorded its best estimate of $27 million in its unaudited Interim Consolidated Balance Sheet as of October 29, 2011, according to the Company's December 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended October 29, 2011. This estimate covered potential liabilities primarily related to underground storage tanks, remediation of environmental conditions involving its former drugstore locations and asbestos removal in connection with approved plans to renovate or dispose of its facilities. The Company continues to assess required remediation and the adequacy of environmental reserves as new information becomes available and known conditions are further delineated. If the Company were to incur losses at the upper end of the estimated range, it does not believe that such losses would have a material effect on its financial condition, results of operations or liquidity. As of October 29, 2011, the Company had a guarantee totaling $20 million for the maximum exposure on insurance reserves established by a former subsidiary included in the sale of its Direct Marketing Services business. J. C. Penney Company, Inc. is a holding company whose principal operating subsidiary is J. C. Penney Corporation, Inc. (JCP). The Company is a retailer, operating 1,106 department stores in 49 states and Puerto Rico as of January 29, 2011. Its business is consists of selling merchandise and services to consumers through its department stores and through the Internet Web site at jcp.com. The Company sells family apparel and footwear, accessories, fine and fashion jewelry, beauty products through Sephora inside jcpenney and home furnishings. In addition, its department stores provide its customers with services, such as styling salon, optical, portrait photography and custom decorating. ASBESTOS UPDATE: Met-Pro Has 137 Pending Cases at Dec. 8 -------------------------------------------------------- Met-Pro Corporation disclosed that as of December 8, 2011, there were a total of 137 asbestos-related cases pending against it as compared with 93 cases that were pending as of March 17, 2011, according to the Company's December 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. Beginning in 2002, the Company began to be named in asbestos- related lawsuits filed against a large number of industrial companies including, in particular, those in the pump and fluid handling industries. In management's opinion, the complaints typically have been vague, general and speculative, alleging that the Company, along with the numerous other defendants, sold unidentified asbestos-containing products and engaged in other related actions which caused injuries (including death) and loss to the plaintiffs. Counsel has advised that more recent cases typically allege more serious claims of mesothelioma. The Company believes that it has meritorious defenses to the cases which have been filed and that none of its products were a cause of any injury or loss to any of the plaintiffs. The Company's insurers have hired attorneys who, together with the Company, are vigorously defending these cases. The Company has been dismissed from or settled a large number of these cases. The sum total of all payments through December 8, 2011 to settle these cases involving asbestos-related claims was $675,000, all of which have been paid by the Company's insurers including legal expenses, except for corporate counsel expenses, with an average cost per settled claim, excluding legal fees, of approximately $32,000. As of December 8, 2011, there were a total of 137 cases pending against the Company (with New York, Pennsylvania and West Virginia having the largest number of cases and being the most active jurisdictions), as compared with 93 cases that were pending as of March 17, 2011. During the current fiscal year commencing February 1, 2011 through December 8, 2011, 68 new cases were filed against the Company, and the Company was dismissed from 18 cases and settled two cases. Most of the pending cases have not advanced beyond the early stages of discovery, although a number of cases are on schedules leading to, or are scheduled for trial. On April 27, 2011, a liquidation order was entered against Atlantic Mutual Insurance Company, who had been providing defense and indemnity to the Company, and its affiliate, Centennial Insurance Company, who provided umbrella coverage to the Company. It appears that our remaining insurers have assumed the share of the defense and indemnity obligations that Atlantic Mutual Insurance Company had agreed to assume, and despite the liquidation of Atlantic Mutual Insurance Company and Centennial Insurance Company, the Company believes that its insurance coverage is adequate for the cases currently pending against the Company and for the foreseeable future, assuming a continuation of the current volume, nature of cases and settlement amounts; however, the Company has no control over the number and nature of cases that are filed against it, nor as to the financial health of its insurers or their position as to coverage. The Company also presently believes that none of the pending cases will have a material adverse impact upon the Company's results of operations, liquidity or financial condition. Met-Pro Corporation (Met-Pro) manufactures and sells product recovery and pollution control equipment for purification of air and liquids, fluid handling equipment for corrosive, abrasive and high temperature liquids, and filtration and purification products. The Company markets and sells its products through its own personnel, distributors, representatives and agents. The Company's products are sold worldwide primarily in industrial markets. ASBESTOS UPDATE: Mangis's Claims vs. Copart Voluntarily Dismissed ----------------------------------------------------------------- On August 10, 2011, Glenn A. Mangis and Lynn Brown-Mangis, husband and wife, filed suit against Copart Inc. in the Superior Court of Washington for Pierce County, alleging exposure to asbestos during the course of his employment as a carpenter, electrician and laborer; and as a direct result of said exposure, Plaintiff developed mesothelioma. Plaintiff's wife is alleging loss of spousal relationship as a result. On October 18, 2011, Plaintiff filed a Stipulation and Order of Dismissal of Copart. All claims against Copart were dismissed without prejudice and without costs as to any party to the matter. No further updates were reported in the Company's December 12, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. Copart, Inc., provides vehicle sellers with services to process and sell vehicles over the Internet through the Company's Virtual Bidding Second Generation (VB2) Internet auction-style sales technology. Sellers are primarily insurance companies but also include banks and financial institutions, charities, car dealerships, fleet operators, and vehicle rental companies. The Company sells principally to licensed vehicle dismantlers, rebuilders, repair licensees, used vehicle dealers and exporters; however at certain locations, the Company sells directly to the general public. ASBESTOS UPDATE: Harbinger Group Still Faces Exposure Suits ----------------------------------------------------------- Harbinger Group Inc. is involved in litigation and claims incidental to its current and prior businesses. These include worker compensation and environmental matters and pending cases in Mississippi and Louisiana state courts and in a Federal multi- district litigation alleging injury from exposure to asbestos on offshore drilling rigs and shipping vessels formerly owned or operated by its offshore drilling and bulk-shipping affiliates. Based on currently available information, including legal defenses available to it, and given its reserves and related insurance coverage, the Company does not believe that the outcome of these legal and environmental matters will have a material effect on its financial position, results of operations or cash flows, according to the Company's December 14, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. Harbinger Group Inc. is a holding company. The Company owns approximately 98% of Zap.Com Corporation (Zap.Com). On July 9, 2009, Harbinger Capital Partners Master Fund I, Ltd. (Master Fund), Global Opportunities Breakaway Ltd. (Global Fund) and Harbinger Capital Partners Special Situations Fund, L.P. (Special Situations Fund and together with the Master Fund and Global Fund, the Company's principal stockholders) purchased 9,937,962 shares of its common stock. ASBESTOS UPDATE: Rentech Estimates Liability at East Dubuque Site ----------------------------------------------------------------- Rentech Inc. and Rentech Nitrogen Partners, L.P., disclosed that they have a legal obligation to handle and dispose of asbestos at its East Dubuque Facility and Natchez Project in a special manner when undergoing major or minor renovations or when buildings at these locations are demolished, even though the timing and method of settlement are conditional on future events that may or may not be in its control. As a result, the Companies have developed an estimate for a conditional obligation for this disposal. In addition, the Companies, through their normal repair and maintenance program, may encounter situations in which it is required to remove asbestos in order to complete other work. The Companies applied the expected present value technique to calculate the fair value of the asset retirement obligation for each property and, accordingly, the asset and related obligation for each property have been recorded. In accordance with the applicable guidance, the liability is increased over time and such increase is recorded as accretion expense, according to the Companies' December 14, 2011, Form 10-K filings with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. According to Rentech Inc., its liability at September 30, 2011 and 2010 was $303,000 and $268,000, respectively. The accretion expense for the fiscal years ended September 30, 2011, 2010 and 2009 was $35,000, $31,000 and $0, respectively. According to Rentech Nitrogen Partners, L.P., its liability at September 30, 2011 and 2010 was $268,000 and $237,000, respectively. The accretion expense for the fiscal years ended September 30, 2011, 2010 and 2009 was $31,000, $27,000 and $0, respectively. Rentech Nitrogen Partners, L.P., is a Delaware limited partnership formed in July 2011 by Rentech Inc., a publicly traded provider of clean energy solutions and nitrogen fertilizer, to own, operate and grow its nitrogen fertilizer business. Rentech Nitrogen Partners' nitrogen fertilizer facility, which is located in East Dubuque, Illinois, has been in operation since 1965, with infrequent unplanned shutdowns. The Company produces primarily anhydrous ammonia, or ammonia, and urea ammonium nitrate solution, or UAN, at its facility, using natural gas as its primary feedstock. Substantially all of its products are nitrogen-based. ASBESTOS UPDATE: 90 Cases vs. LaBour Pump Remain Open at Sept. 30 ----------------------------------------------------------------- Approximately 90 cases remain active against LaBour Pump Company as of September 30, 2011, Katy Industries, Inc., disclosed in its November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. LaBour Pump Company, a former division of an inactive subsidiary of the Company, has been named as a defendant in approximately 430 of the New Jersey cases tendered by Sterling Fluid Systems (USA) ("Sterling"). Sterling bases its tender of the complaints on the provisions contained in a 1993 Purchase Agreement between the parties whereby Sterling purchased the LaBour Pump business and other assets from the Company. The Company has elected to defend these cases, the majority of which have been dismissed or settled for nominal sums. There are approximately 90 cases which remain active as of September 30, 2011. While the ultimate liability of the Company related to the asbestos matters cannot be determined at this time, the Company has recorded and accrued amounts that it deems reasonable for prospective liabilities with respect to these matters. Headquartered in Bridgeton, Missouri, Katy Industries, Inc., is a manufacturer, importer and distributor of commercial cleaning and storage products. Its commercial cleaning products are sold primarily to janitorial/sanitary and foodservice distributors that supply end users like restaurants, hotels, healthcare facilities and schools. ASBESTOS UPDATE: American Locker Still Party to 39 Exposure Suits ----------------------------------------------------------------- Beginning in September 1998 American Locker Group Incorporated has been named as an additional defendant in approximately 226 cases pending in state court in Massachusetts and one in the state of Washington. The plaintiffs in each case assert that a division of the Company manufactured and furnished components containing asbestos to a shipyard during the period from 1948 to 1972 and that injury resulted from exposure to such products. The assets of this division were sold by the Company in 1973. During the process of discovery in certain of these actions, documents from sources outside the Company have been produced which indicate that the Company appears to have been included in the chain of title for certain wall panels which contained asbestos and which were delivered to the Massachusetts shipyards. Defense of these cases has been assumed by the Company's insurance carrier, subject to a reservation of rights. Settlement agreements have been entered in approximately 31 cases with funds authorized and provided by the Company's insurance carrier. Further, over 157 cases have been terminated as to the Company without liability to the Company under Massachusetts procedural rules. Therefore, the balance of unresolved cases against the Company as of March 9, 2011, the most recent date data is available, is approximately 39 cases. No further updates were reported in the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. While the Company cannot estimate potential damages or predict the ultimate resolution of these asbestos cases as the discovery proceedings on the cases are not complete, based upon the Company's experience to date with similar cases, as well as the assumption that insurance coverage will continue to be provided with respect to these cases, at the present time, the Company does not believe that the outcome of these cases will have a significant adverse impact on the Company's operations or financial condition. American Locker Group Incorporated manufactures lockers, locks and keys with a wide-range of applications for use in numerous industries. The Company is best known for manufacturing and servicing the widely-utilized key and lock system with the iconic plastic orange cap. The Company is based in Grapevine, Texas. ASBESTOS UPDATE: Andrea Electronics Still Defends "Edwards" Suit ---------------------------------------------------------------- In December 2010, Audrey Edwards, Executrix of the Estate of Leon Leroy Edwards, filed a lawsuit in the Superior Court of Providence County, Rhode Island, against 3M Company and over 90 other defendants, including Andrea Electronics Corporation, alleging that the Company processed, manufactured, designed, tested, packaged, distributed, marketed or sold asbestos containing products that contributed to the death of Leon Leroy Edwards. The Company received service of process in April 2011. The Company has retained legal counsel and has filed a response to the compliant. No further updates were reported in the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. The Company believes the lawsuit is without merit. Accordingly, the Company does not believe the lawsuit will have a material adverse effect on its financial position or results of operations. Headquartered in Bohemia, N.Y., Andrea Electronics Corporation aims to provide the emerging "voice interface" markets with state- of-the-art communications products that facilitate natural language, human/machine interfaces. ASBESTOS UPDATE: Colonial Unit Still Faces Asbestos-Related Suit ---------------------------------------------------------------- A subsidiary of Colonial Commercial Corp. continues to be named as a defendant in an asbestos-related lawsuit, according to the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. Universal Supply Group, Inc., a wholly owned subsidiary of the Company, is a New York corporation ("Universal"). On June 25, 1999, Universal acquired substantially all of the assets of Universal Supply Group, Inc., a New Jersey corporation, including its name, pursuant to the terms of a purchase agreement. Subsequent to the acquisition, Universal Supply Group, Inc. (the selling corporation) formerly known as Universal Engineering Co., Inc., changed its name to Hilco, Inc. Hilco, Inc. acquired the assets of Amber Supply Co., Inc., formerly known as Amber Oil Burner Supply Co., Inc., in 1998, prior to Hilco's sale of assets to Universal. Hilco, Inc. is hereinafter referred to as the "Universal Predecessor." The majority shareholders of Hilco, Inc. were John A. Hildebrandt and Paul Hildebrandt. The Company understands that the Universal Predecessor and many other companies have been sued in the Superior Court of New Jersey (Middlesex County) by plaintiffs filing lawsuits alleging injury due to asbestos. As of September 30, 2011, there existed five plaintiffs in these lawsuits relating to alleged sales of asbestos products, or products containing asbestos, by the Universal Predecessor. Subsequent to September 30, 2011, one plaintiff filed an action, which results in six remaining plaintiffs in these lawsuits. The Company never sold any asbestos related products. Of the existing plaintiffs as of September 30, 2011, one filed an action in 2011 and four filed actions in 2010. There are 208 other plaintiffs that have had their actions dismissed and 17 other plaintiffs that have settled as of September 30, 2011, for a total of $3,364,500. There has been no judgment against the Universal Predecessor. The Company's Universal subsidiary was named by 37 plaintiffs; of these, 1 filed an action in 2010, 11 filed actions in 2007, 6 filed actions in 2006, 11 filed actions in 2005, 5 filed actions in 2001, 1 filed an action in 2000, and 2 filed actions in 1999. Thirty-three plaintiffs naming Universal have had their actions dismissed and, of the total $3,364,500 of settled actions, 3 plaintiffs naming Universal have settled for $27,500. No money was paid by Universal in connection with any settlement. Following these dismissed and settled actions there exists 1 plaintiff that named Universal as of September 30, 2011. The Company has been indemnified against asbestos-based claims, and insurance companies are defending the interests of the Universal Predecessor and the Company in these cases. Based on advice of counsel, the Company believes that none of the litigation that was brought against the Company's Universal subsidiary through September 30, 2011 is material, and that the only material litigation that was brought against the Universal Predecessor through that date was Rhodes v. A.O. Smith Corporation, filed on April 26, 2004 in the Superior Court of New Jersey, Law Division, Middlesex County, Docket Number MID-L-2979- 04AS. The Company was advised that the Rhodes case was settled for $3,250,000 ("Settlement") under an agreement reached in connection with a $10,000,000 jury verdict that was rendered on August 5, 2005. The Company was not a defendant in the Rhodes case. The Company believes that Rhodes differed from the other lawsuits in that plaintiff established that he contracted mesothelioma as a result of his occupational exposure to asbestos dust and fibers and that a predecessor of the Company was a major supplier of the asbestos containing products that allegedly caused his disease. Indemnification John A. Hildebrandt, Paul Hildebrandt and the Universal Predecessor have jointly and severally agreed to indemnify the Company's Universal subsidiary from and against any and all damages, liabilities and claims due to exposure to asbestos at any time prior to the June 25, 1999 closing of the purchase agreement. These agreements are set forth in the purchase agreement. Paul Hildebrandt, one of the indemnitors, was a Director of the Company from September 29, 2004 to January 28, 2005. The indemnitors may use their own counsel to defend these claims. The indemnitors are not liable for any settlement effected without their consent. The indemnitors may settle and pay money claims without the consent of the Company. There is no indemnification unless claims aggregate $50,000; once this trigger point is reached, indemnification is required for all claims, including the first $50,000, but excluding claims of less than $10,000. The indemnification requirement survives at least until 30 days after the running of any relevant statutes of limitation. The obligation of the indemnitors is joint and several, so that the Company can have recourse against any one or more of these indemnitors, whether or not any other indemnitor has previously defaulted on its obligation to the Company. There are no other limitations to the Company's rights to indemnification. The Company cannot be certain that the indemnitors have the financial wherewithal to meet their obligations to indemnify the Company. Insurance The assets that the Universal Predecessor sold to the Company included its insurance policies and other agreements and contracts. The policies provide coverage for liability accruing during the periods for which premiums were paid. The Universal Predecessor was formed in 1940. Copies of policies are available for each year beginning in 1970 and ending with the closing under the purchase agreement in 1999. Copies of policies for the period from 1940 to 1969 are not available. Insurance companies acknowledge coverage for potential asbestos claims under certain of these policies. Insurance companies under additional policies have reserved their right to deny coverage but have continued to defend and indemnify the Universal Predecessor and the Company under the contested policies. There are periods during the years from 1940 to 1999 in which the Company's Universal Predecessor did not have coverage for potential asbestos claims. Subject to litigation, insurance companies may maintain that the existence of these periods' results in coverage for only a portion of a particular injury that varies with the period during which there was asbestos coverage relating to the injury, and that the balance of any settlement or judgment is to be paid by the insured. As of September 30, 2011, no insurance company has claimed any contribution for a gap in coverage except for a claim for $160 made by one insurance company to the Universal Predecessor in 1995. The Universal Predecessor asserted that it had no obligation to pay this amount and did not make any payment. Insurance companies have, as of September 30, 2011, defended the Company and the Universal Predecessor, and have paid all settlement amounts and defense costs. Except for $160, the insurance companies have not requested any payments from the Company or from the Universal Predecessor. The Company's Universal subsidiary has not engaged in the sale of asbestos products since its formation in 1997. Its product liability policies for all years since 1998 exclude asbestos claims. Regardless of indemnification and insurance coverage, the Company does not in any event consider itself to be liable for the asbestos-based lawsuits that name it or for any other claim that arises as a result of actions or omissions by the Universal Predecessor. The Company expressly disclaimed the assumption of any liabilities when the Company purchased the assets of the Universal Predecessor. It is the Company's opinion that the existing asbestos litigation will not have a material adverse effect on the Company. Nevertheless, the Company could be materially and adversely affected if it is held liable for substantial asbestos claims or if the Company incurs substantial legal or settlement costs. This material and adverse effect would occur if indemnitors fail to honor their indemnification agreements and insurance is not available either because policy limits are exceeded, or because insurance companies successfully deny coverage or claim limitations on their liabilities by reason of gaps in coverage or otherwise. Since the Company regards as remote the potential payment of any asbestos-based claim, the Company has not accrued any liability for any period relating to asbestos claims, and it has not recorded any amount for asbestos claims for any period in any of the Company's financial statements. Headquartered in Hawthorne, N.J., Colonial Commercial Corp. distributes heating, ventilating and air conditioning equipment (HVAC), parts and accessories, climate control systems, appliances, and plumbing and electrical fixtures and supplies, primarily in New Jersey, New York, Massachusetts and portions of eastern Pennsylvania, Connecticut and Vermont. ASBESTOS UPDATE: Discovery Ongoing in "Jansen" Suit vs. Chase ------------------------------------------------------------- Chase Corporation was named as one of the defendants in a complaint filed on June 25, 2009, in a lawsuit captioned Lois Jansen, Individually and as Special Administrator of the Estate of Thomas Jansen v. Beazer East, Inc., et al., No: 09-CV-6248 in the Milwaukee County (Wisconsin) Circuit Court. The plaintiff alleges that her husband suffered and died from malignant mesothelioma resulting from exposure to asbestos in his workplace. The plaintiff has sued seven alleged manufacturers or distributors of asbestos-containing products, including Royston Laboratories (formerly an independent company and now a division of Chase Corporation). Chase has filed an answer to the claim denying the material allegations in the complaint. The parties are currently engaged in discovery. No further updates were reported in the Company's November 14, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended August 31, 2011. Headquartered in Bridgewater, Massachusetts, Chase Corporation's Specialized Manufacturing segment consists of specialty tapes, laminates, sealants and coatings. ASBESTOS UPDATE: Exposure Suits vs. Kaanapali Land Still Pending ---------------------------------------------------------------- Kaanapali Land, LLC, as successor by merger to other entities, and its subsidiary, D/C Distribution Corporation, have been named as defendants in personal injury actions allegedly based on exposure to asbestos. While there have been only a few such cases that name Kaanapali Land, there are a substantial number of cases that are pending against D/C on the U.S. mainland (primarily in California). Cases against Kaanapali Land are allegedly based on its prior business operations in Hawaii and cases against D/C are allegedly based on sale of asbestos-containing products by D/C's prior distribution business operations primarily in California. Each entity defending these cases believes that it has meritorious defenses against these actions, but can give no assurances as to the ultimate outcome of these cases. The defense of these cases has had a material adverse effect on the financial condition of D/C as it has been forced to file a voluntary petition for liquidation. Kaanapali Land does not believe that it has liability, directly or indirectly, for D/C's obligations in those cases. Kaanapali Land does not presently believe that the cases in which it is named will result in any material liability to Kaanapali Land; however, there can be no assurance in this regard. On February 15, 2005, D/C was served with a lawsuit entitled American & Foreign Insurance Company v. D/C Distribution and Amfac Corporation, Case No. 04433669 filed in the Superior Court of the State of California for the County of San Francisco, Central Justice Center. No other purported party was served. In the eight-count complaint for declaratory relief, reimbursement and recoupment of unspecified amounts, costs and for such other relief as the court might grant, plaintiff alleged that it is an insurance company to whom D/C tendered for defense and indemnity various personal injury lawsuits allegedly based on exposure to asbestos containing products. Plaintiff alleged that because none of the parties have been able to produce a copy of the policy or policies in question, a judicial determination of the material terms of the missing policy or policies is needed. Plaintiff sought, among other things, a declaration: of the material terms, rights, and obligations of the parties under the terms of the policy or policies; that the policies were exhausted; that plaintiff is not obligated to reimburse D/C for its attorneys' fees in that the amounts of attorneys' fees incurred by D/C have been incurred unreasonably; that plaintiff was entitled to recoupment and reimbursement of some or all of the amounts it has paid for defense and/or indemnity; and that D/C breached its obligation of cooperation with plaintiff. D/C filed an answer and an amended cross-claim. D/C believed that it had meritorious defenses and positions, and intended to vigorously defend. In addition, D/C believed that it was entitled to amounts from plaintiffs for reimbursement and recoupment of amounts expended by D/C on the lawsuits previously tendered. In order to fund such action and its other ongoing obligations while such lawsuit continued, D/C entered into a Loan Agreement and Security Agreement with Kaanapali Land, in August 2006, whereby Kaanapali Land provided certain advances against a promissory note delivered by D/C in return for a security interest in any D/C insurance policy at issue in this lawsuit. In June 2007, the parties settled this lawsuit with payment by plaintiffs in the amount of $1,618,000. Such settlement amount was paid to Kaanapali Land in partial satisfaction of the secured indebtedness. Because D/C was substantially without assets and was unable to obtain additional sources of capital to satisfy its liabilities, D/C filed with the United States Bankruptcy Court, Northern District of Illinois, its voluntary petition for liquidation under Chapter 7 of Title 11, United States Bankruptcy Code during July 2007, Case No. 07-12776. Such filing is not expected to have a material adverse effect on the Company as D/C was substantially without assets at the time of the filing. The deadline for filing proofs of claim against D/C with the bankruptcy court passed in October 2008. Prior to the deadline, Kaanapali Land filed claims that aggregated approximately $26,800,000, relating to both secured and unsecured intercompany debts owed by D/C to Kaanapali Land. In addition, a personal injury law firm based in San Francisco that represents clients with asbestos-related claims, filed proofs of claim on behalf of approximately 700 claimants. While it is not likely that a significant number of these claimants have a claim against D/C that could withstand a vigorous defense, the Company says it is unknown how the trustee will deal with these claims. It is not expected, however, that the Company will receive any material additional amounts in the liquidation of D/C. No further updates were reported in the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. Headquartered in Chicago, Kaanapali Land, LLC operates in two primary business segments: Property and Agriculture. The Company operates through a number of subsidiaries. ASBESTOS UPDATE: Imperial Industries Still Faces Exposure Suits --------------------------------------------------------------- Imperial Industries, Inc.'s wholly-owned subsidiary, Premix- Marbletite Manufacturing Co., is a defendant together with non- affiliated parties in seventeen claims (eight of which include Imperial as a defendant), which allege bodily injury due to exposure to asbestos contained in products manufactured in excess of 30 years ago. The pending claims, together with the court in which the action is pending and the date that Premix and/or Imperial was served with the complaint, are: * Marilyn Adair v. Premix, et al., 15th Judicial Circuit - Palm Beach County, Case No. 07-9343, June 29, 2007; * Elaine Legault v. Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 08-10789, June 23, 2008; * Edward Pryzbyla v. Premix, et al., 17th Judicial Circuit - Broward County, Case No. 09-053844-07, November 4, 2009; * Nancy Henley v. Imperial, Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 09-27856, March 12, 2010; * Bruce Weisemann v. Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 10-005365, March 17, 2010; * Shirley Picklo v. Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 10-000262-07, April 21, 2010; * Betty Trowsse v. Imperial, Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 10-02779, May 5, 2010; * Edward Evans v. Imperial, Premix, et al., 11th Judicial Circuit - Miami-Dade County, Case No. 10-9106-CA-42, May 13, 2010; * Herman Roberts v. Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 10-006329, July 2, 2010; * Lawrence McFarlin v. Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 10-007786, August 5, 2010; * Pauline Marley v. Imperial, Premix, et al., 11th Judicial Circuit - Miami-Dade County, Case No. 10-17557-CA-42, August 6, 2010; * Isabel Perry v. Imperial, Premix, et al., 17th Judicial Circuit - Broward County, Case No. 10-23096, September 24, 2010; * Craig Comes v. Imperial, Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 10-014949, November 12, 2010; * Claudia Fils-Aime v. Imperial, Premix, et al., 11th Judicial Circuit - Miami-Dade County, Case No. 10-63197-CA-06, March 11, 2011; * Hidelisa Cordovez v. Premix, et al., 11th Judicial Circuit - Miami-Dade County, Case No. 11-08485-CA-24, April 13, 2011; * Julius B. Sanders v. Imperial, Premix, et al., 17th Judicial Circuit - Broward County, Case No. 11-016176, August 17, 2011; and * James R. Williams v. Premix, et al., 13th Judicial Circuit - Hillsborough County, Case No. 11-8564Z, November 2, 2011. During the three months ended September 30, 2011, two asbestos cases that were outstanding during previous periods were settled by the Company's insurance carriers which resulted in no additional costs to the Company, according to the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. The Company believes that Premix and the Company have meritorious defenses to each of the listed claims. The Company has identified at least 10 of its prior insurance carriers, including both primary and excess/umbrella liability carriers that have provided liability coverage to the Company, including potential coverage for alleged injuries relating to asbestos exposure. Several of these insurance carriers have been and continue to provide a defense to Premix and the Company under a reservation of rights in all of the asbestos cases. Certain of these underlying insurance carriers have denied coverage to Premix and the Company on the basis that certain exclusions preclude coverage and/or that their policies have been exhausted. In June of 2009, one such carrier filed a lawsuit in Miami-Dade Circuit Court against Premix and Imperial, wherein the carrier sought a declaration from the Court that its insurance policies do not provide coverage for the asbestos claims against Premix and Imperial. The Company believed that it had meritorious defenses to these claims, and filed a counterclaim against the carrier for breach of contract. In December 2010, Premix, Imperial and this carrier resolved their dispute, with the carrier paying a settlement of $500,000 to Premix and Imperial. As part of the settlement, there is no longer coverage available under that disputed policy. The settlement was recorded as a receivable and included in other current assets in the accompanying condensed consolidated balance sheet as of December 31, 2010, and as income reflected as litigation settlement during the fourth quarter of 2010. The Company received payment of the $500,000 settlement during the first quarter of 2011. During the first quarter of 2011, the Company resolved a dispute with another carrier regarding primary- layer insurance coverage, which resulted in this carrier paying a settlement of $325,000 to Premix and Imperial, which was recorded as income reflected as litigation settlement during the first quarter of 2011. As part of the settlement, there is no longer coverage available under that disputed policy. Notwithstanding the foregoing, the Company believes, when considering that Imperial and Premix have substantial umbrella/excess coverage for these claims, that the Company has more than adequate insurance coverage for these asbestos claims and such policies are not subject to self-insured retention ("SIR"). Headquartered in Pompano Beach, California, Imperial Industries, Inc., manufactures and distributes building materials to building materials dealers, contractors and others located primarily in Florida, and to a lesser extent, other states in the Southeastern United States. ASBESTOS UPDATE: IntriCon Continues to Defend Exposure Suits ------------------------------------------------------------ IntriCon Corporation remains a party in lawsuits alleging that plaintiffs have or may have contracted asbestos-related diseases as a result of exposure to asbestos, according to the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. The Company is a defendant along with a number of other parties in lawsuits alleging that plaintiffs have or may have contracted asbestos-related diseases as a result of exposure to asbestos products or equipment containing asbestos sold by one or more named defendants. Due to the non-informative nature of the complaints, the Company does not know whether any of the complaints state valid claims against it. Certain insurance carriers have informed the Company that the primary policies for the period August 1, 1970-1973, have been exhausted and that the carriers will no longer provide a defense under those policies. The Company has requested that the carriers substantiate this situation. The Company believes it has additional policies available for other years which have been ignored by the carriers. Because settlement payments are applied to all years a litigant was deemed to have been exposed to asbestos, the Company believes when settlement payments are applied to these additional policies, it will have availability under the years deemed exhausted. The Company does not believe that the asserted exhaustion of the primary insurance coverage for this period will have a material adverse effect on the financial condition, liquidity, or results of operations. Management believes that the number of insurance carriers involved in the defense of the lawsuits and the significant number of policy years and policy limits, to which these insurance carriers are insuring the Company, make the ultimate disposition of these lawsuits not material to its consolidated financial position or results of operations. Headquartered in Arden Hills, Minnesota, IntriCon Corporation designs, develops, manufactures, and distributes miniature and micro-miniature body-worn devices. The Company also has facilities in Maine, California, Singapore, Indonesia and Germany. ASBESTOS UPDATE: Katy Asked to Indemnify Sterling in 2,915 Suits ---------------------------------------------------------------- Sterling Fluid Systems (USA) has tendered approximately 2,915 cases pending in Michigan, New Jersey, New York, Illinois, Nevada, Mississippi, Wyoming, Louisiana, Georgia, Massachusetts, Missouri, Kentucky, California, South Carolina, Rhode Island and Canada to Katy Industries, Inc., for defense and indemnification, according to the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. With respect to one case, Sterling has demanded that the Company indemnify it for a $200,000 settlement. Sterling bases its tender of the complaints on the provisions contained in a 1993 Purchase Agreement between the parties whereby Sterling purchased the LaBour Pump business and other assets from the Company. Sterling has not filed a lawsuit against the Company in connection with these matters. The tendered complaints all purport to state claims against Sterling and its subsidiaries. The Company and its current subsidiaries are not named as defendants. The plaintiffs in the cases also allege that they were exposed to asbestos and products containing asbestos in the course of their employment. Each complaint names as defendants many manufacturers of products containing asbestos, apparently because plaintiffs came into contact with a variety of different products in the course of their employment. Plaintiffs claim that LaBour Pump Company, a former division of an inactive subsidiary of the Company, and/or Sterling may have manufactured some of those products. With respect to many of the tendered complaints, including the one settled by Sterling for $200,000, the Company has taken the position that Sterling has waived its right to indemnity by failing to timely request it as required under the 1993 Purchase Agreement. With respect to the balance of the tendered complaints, the Company has elected not to assume the defense of Sterling in these matters. Headquartered in Bridgeton, Missouri, Katy Industries, Inc., is a manufacturer, importer and distributor of commercial cleaning and storage products. Its commercial cleaning products are sold primarily to janitorial/sanitary and foodservice distributors that supply end users like restaurants, hotels, healthcare facilities and schools. ASBESTOS UPDATE: Katy Still Defends 11 Exposure Suits in Alabama ---------------------------------------------------------------- Katy Industries, Inc., has been named as a defendant in eleven lawsuits filed in state court in Alabama by a total of approximately 325 individual plaintiffs. There are more than 100 defendants named in each case. In all eleven cases, the Plaintiffs claim that they were exposed to asbestos in the course of their employment at a former U.S. Steel plant in Alabama and, as a result, contracted mesothelioma, asbestosis, lung cancer or other illness. They claim that while in the plant they were exposed to asbestos in products which were manufactured by each defendant. In nine of the cases, Plaintiffs also assert wrongful death claims. No further updates were reported in the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. The Company says it will vigorously defend the claims against it in these matters. The liability of the Company cannot be determined at this time. Headquartered in Bridgeton, Missouri, Katy Industries, Inc., is a manufacturer, importer and distributor of commercial cleaning and storage products. Its commercial cleaning products are sold primarily to janitorial/sanitary and foodservice distributors that supply end users like restaurants, hotels, healthcare facilities and schools. ASBESTOS UPDATE: McJunkin Faces 989 Exposure Claims at Sept. 30 --------------------------------------------------------------- McJunkin Red Man Holding Corporation is a defendant in lawsuits asserting 989 claims for injuries resulting from products containing asbestos, the Company disclosed in its November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. Individuals seeking damages for injuries that certain products containing asbestos allegedly caused have named the Company as a defendant along with a large number of other companies. As of September 30, 2011, the Company is a defendant in lawsuits involving approximately 989 of these claims. Each claim involves allegations of exposure to asbestos-containing materials by one or more of a single individual, his or her spouse or his or her family members. The complaints typically name many other defendants. In a majority of these lawsuits, little or no information is known regarding the nature of the plaintiffs' alleged injuries or their connection with the products that the Company distributed. Through September 30, 2011, lawsuits involving over 11,817 claims have been brought against the Company with the majority being settled, dismissed or otherwise resolved. In total, since the first asbestos claim brought against the Company through September 30, 2011, approximately $1.6 million has been paid to asbestos claimants in connection with settlements of claims against the Company without regard to insurance recoveries. Headquartered in Houston, McJunkin Red Man Holding Corporation distributes pipes, pipe, valves and fittings (PVF) and related products and services to the energy industry. ASBESTOS UPDATE: Pacific Office Posts $600,000 ARO at Sept. 30 -------------------------------------------------------------- As of September 30, 2011, the liability recorded in Pacific Office Properties Trust, Inc.'s consolidated balance sheet for conditional asset retirement obligations was $600,000, according to the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. The Company records a liability for a conditional asset retirement obligation, defined as a legal obligation to perform an asset retirement activity in which the timing and/or method of settlement is conditional on a future event that may or may not be within a company's control, when the fair value of the obligation can be reasonably estimated. Depending on the age of the construction, certain properties in the Company's portfolio may contain non-friable asbestos. If these properties undergo major renovations or are demolished, certain environmental regulations are in place, which specify the manner in which the asbestos, if present, must be handled and disposed. Based on the Company's evaluation of the physical condition and attributes of certain of its properties, the Company recorded conditional asset retirement obligations related to asbestos removal. As of September 30, 2011, and December 31, 2010, the liability in the Company's consolidated balance sheets for conditional asset retirement obligations was $0.6 million for both periods. The accretion expense for the three and nine months ended September 30, 2011, and 2010 was not significant. Headquartered in San Diego, California, Pacific Office Properties Trust, Inc. owns and operates primarily institutional-quality office properties principally in selected long-term growth markets in southern California and Hawaii. The Company operates in a manner that permits it to satisfy the requirements for taxation as a real estate investment trust. ASBESTOS UPDATE: Park-Ohio Continues to Defend 300 Exposure Suits ----------------------------------------------------------------- Park-Ohio Industries, Inc., continues to defend about 300 cases alleging personal injury as a result of exposure to asbestos, according to the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. The Company is a co-defendant in approximately 300 cases asserting claims on behalf of approximately 1,230 plaintiffs alleging personal injury as a result of exposure to asbestos. These asbestos cases generally relate to production and sale of asbestos-containing products and allege various theories of liability, including negligence, gross negligence and strict liability, and seek compensatory and, in some cases, punitive damages. In every asbestos case in which the Company is named as a party, the complaints are filed against multiple named defendants. In substantially all of the asbestos cases, the plaintiffs either claim damages in excess of a specified amount, typically a minimum amount sufficient to establish jurisdiction of the court in which the case was filed (jurisdictional minimums generally range from $25,000 to $75,000), or do not specify the monetary damages sought. To the extent that any specific amount of damages is sought, the amount applies to claims against all named defendants. There are only seven asbestos cases, involving 26 plaintiffs, that plead specified damages. In each of the seven cases, the plaintiff is seeking compensatory and punitive damages based on a variety of potentially alternative causes of action. In three cases, the plaintiff has alleged compensatory damages in the amount of $3.0 million for four separate causes of action and $1.0 million for another cause of action and punitive damages in the amount of $10.0 million. In the fourth case, the plaintiff has alleged against each named defendant compensatory and punitive damages, each in the amount of $10.0 million, for seven separate causes of action. In the fifth case, the plaintiff has alleged compensatory damages in the amount of $20.0 million for three separate causes of action and $5.0 million for another cause of action and punitive damages in the amount of $20.0 million. In the sixth case, the plaintiff has alleged against each named defendant compensatory and punitive damages, each in the amount of $10.0 million, for six separate causes of action and $5.0 million for the seventh cause of action. In the seventh case, the plaintiff has alleged against each named defendant compensatory and punitive damages, each in the amount of $50.0 million, for four separate causes of action. Historically, the Company says it has been dismissed from asbestos cases on the basis that the plaintiff incorrectly sued one of the Company's subsidiaries or because the plaintiff failed to identify any asbestos-containing product manufactured or sold by the Company or its subsidiaries. The Company says it intends to vigorously defend these asbestos cases, and believes it will continue to be successful in being dismissed from such cases. However, it is not possible to predict the ultimate outcome of asbestos-related lawsuits, claims and proceedings due to the unpredictable nature of personal injury litigation. Despite this uncertainty, and although the Company's results of operations and cash flows for a particular period could be adversely affected by asbestos-related lawsuits, claims and proceedings, management believes that the ultimate resolution of these matters will not have a material adverse effect on the Company's financial condition, liquidity or results of operations. Among the factors management considered in reaching this conclusion were: (a) the Company's historical success in being dismissed from these types of lawsuits; (b) many cases have been improperly filed against one of the Company's subsidiaries; (c) in many cases, the plaintiffs have been unable to establish any causal relationship to the Company or its products or premises; (d) in many cases, the plaintiffs have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all or that any injuries that they have incurred did in fact result from alleged exposure to asbestos; and (e) the complaints assert claims against multiple defendants and, in most cases, the damages alleged are not attributed to individual defendants. Additionally, the Company does not believe that the amounts claimed in any of the asbestos cases are meaningful indicators of the Company's potential exposure because the amounts claimed typically bear no relation to the extent of the plaintiff's injury, if any. The Company says its cost of defending these lawsuits has not been material to date and, based upon available information, its management does not expect its future costs for asbestos-related lawsuits to have a material adverse effect on its results of operations, liquidity or financial position. Park-Ohio Industries, Inc., headquartered in Cleveland, Ohio, is an industrial supply chain logistics and diversified manufacturing business operating in three segments: Supplier Technologies, Aluminum Products, and Manufactured Products. ASBESTOS UPDATE: Personal Injury Suits vs. Global Power Pending --------------------------------------------------------------- A former operating unit of Global Power Equipment Group Inc. has been named as a defendant in a limited number of asbestos personal injury lawsuits. Neither the Company nor its predecessors ever mined, manufactured, produced or distributed asbestos fiber, the material that allegedly caused the injury underlying these actions. The bankruptcy court's discharge order issued upon the Company's emergence from bankruptcy extinguished the claims made by all plaintiffs who had filed asbestos claims against the Company before that time. The Company also believes the bankruptcy court's discharge order should serve as a bar against any later claim filed against it, including any of its subsidiaries, based on alleged injury from asbestos at any time before emergence from bankruptcy. In any event, in all of the asbestos cases finalized post-bankruptcy, the Company has been successful in having such cases dismissed without liability. The Company says it intends to vigorously defend all currently active actions, just as it defended the other actions that have since been dismissed, all without liability, and it does not anticipate that any of these actions is reasonably likely to have a material adverse effect on its financial position, results of operations or liquidity. However, the outcomes of any legal action cannot be predicted and, therefore, there can be no assurance that this will be the case. No further updates were reported in the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. Headquartered in Irving, Texas, Global Power Equipment Group Inc. is a provider of power generation equipment and maintenance services for customers in the domestic and international energy, power infrastructure and service industries. ASBESTOS UPDATE: Rockwell Automation Still Defends Exposure Suits ----------------------------------------------------------------- Rockwell Automation, Inc., continues to defend lawsuits and claims alleging exposure to asbestos in its products, according to the Company's November 14, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2011. The Company (including its subsidiaries) has been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of the Company's products many years ago. Currently there are a few thousand claimants in lawsuits that name the Company as defendants, together with hundreds of other companies. In some cases, the claims involve products from divested businesses, and the Company is indemnified for most of the costs. However, the Company has agreed to defend and indemnify asbestos claims associated with products manufactured or sold by the Company's Dodge mechanical and Reliance Electric motors and motor repair services businesses prior to their divestiture by the Company, which occurred on January 31, 2007. The Company also is responsible for half of the costs and liabilities associated with asbestos cases against the divested measurement and flow control business of Rockwell International Corporation (RIC). But in all cases, for those claimants who do show that they worked with the Company's products or products of divested businesses for which the Company is responsible, the Company nevertheless believes it has meritorious defenses, in substantial part due to the integrity of the products, the encapsulated nature of any asbestos- containing components, and the lack of any impairing medical condition on the part of many claimants. The Company defends those cases vigorously. Historically, the Company has been dismissed from the vast majority of these claims with no payment to claimants. The Company has maintained insurance coverage that it believes covers indemnity and defense costs, over and above self-insured retentions, for claims arising from the Company's former Allen- Bradley Company subsidiary. Following litigation against Nationwide Indemnity Company (Nationwide) and Kemper Insurance (Kemper), the insurance carriers that provided liability insurance coverage to Allen-Bradley, the Company entered into separate agreements on April 1, 2008, with both insurance carriers to further resolve responsibility for ongoing and future coverage of Allen-Bradley asbestos claims. In exchange for a lump sum payment, Kemper bought out its remaining liability and has been released from further insurance obligations to Allen-Bradley. Nationwide entered into a cost share agreement with the Company to pay the substantial majority of future defense and indemnity costs for Allen-Bradley asbestos claims. The Company believes this arrangement will continue to provide coverage for Allen-Bradley asbestos claims throughout the remaining life of the asbestos liability. The uncertainties of asbestos claim litigation make it difficult to predict accurately the ultimate outcome of asbestos claims. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Subject to these uncertainties and based on the Company's experience defending asbestos claims, the Company does not believe these lawsuits will have a material adverse effect on the Company's financial condition. Headquartered in Milwaukee, Rockwell Automation, Inc., is an industrial automation company that serves automotive, food and beverage (including dairy), personal care, life sciences, oil and gas, mining, and paper and pulp markets. ASBESTOS UPDATE: "Scott" Suit vs. Chase Corp. Remains Inactive -------------------------------------------------------------- Chase Corporation is one of over 100 defendants in a lawsuit pending in Ohio which alleges personal injury from exposure to asbestos contained in certain Chase products. The case is captioned Marie Lou Scott, Executrix of the Estate of James T. Scott v. A-Best Products, et al., No. 312901 in the Court of Common Pleas for Cuyahoga County, Ohio. The plaintiff in the case issued discovery requests to Chase in August 2005, to which Chase timely responded in September 2005. The trial had initially been scheduled to begin on April 30, 2007. However, that date had been postponed and no new trial date has been set. As of October 2011, there have been no new developments as this Ohio lawsuit has been inactive with respect to Chase, according to the Company's November 14, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended August 31, 2011. Headquartered in Bridgewater, Massachusetts, Chase Corporation's Specialized Manufacturing segment consists of specialty tapes, laminates, sealants and coatings. ASBESTOS UPDATE: Two Exposure Suits vs. Thermon Group Pending ------------------------------------------------------------- Two lawsuits alleging personal injury due to exposure to asbestos from Thermon Group Holdings, Inc.'s products are currently pending, according to the Company's November 14, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011. Since 1999, the Company has been named as one of many defendants in 16 personal injury lawsuits alleging exposure to asbestos from its products. None of the cases alleges premises liability. Two cases are currently pending. Insurers are defending the Company in one of the two lawsuits, and the Company expects that an insurer will defend it in the remaining matter. Of the concluded lawsuits, there were seven cost of defense settlements and the remainder were dismissed without payment. There are no claims unrelated to asbestos exposure for which coverage has been sought under the policies that are providing coverage. Headquartered in San Marcos, Texas, Thermon Group Holdings, Inc., provides specialized cables, tubes, and control systems used in electric and steam "heat tracing," which involves externally applying heat to industrial-grade pipes, tanks, and instrumentation. ASBESTOS UPDATE: WABTEC and Units Still Face Exposure Claims ------------------------------------------------------------ Westinghouse Air Brake Technologies Corporation and its affiliates continue to face asbestos exposure claims, according to the Company's November 14, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. Claims have been filed against the Company and certain of its affiliates in various jurisdictions across the United States by persons alleging bodily injury as a result of exposure to asbestos-containing products. Headquartered in Wilmerding, Pennsylvania, Westinghouse Air Brake Technologies Corporation provides equipment and services for the global rail industry. Its products improve productivity and reduce maintenance costs for customers, can be found on virtually all U.S. locomotives, freight cars, subway cars and buses. ASBESTOS UPDATE: Magnetek Continues to Pursue Dismissal of Suits ---------------------------------------------------------------- Magnetek, Inc., is aggressively seeking its dismissal from asbestos-related lawsuits related to its discontinued operations, according to the Company's November 16, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 2, 2011. The Company has been named, along with multiple other defendants, in asbestos-related lawsuits associated with business operations previously acquired by the Company, but which are no longer owned. During the Company's ownership, none of the businesses produced or sold asbestos-containing products. With respect to these claims, the Company is uninsured, but believes that it has no such liability. For certain claims, the Company is contractually indemnified against liability, while for other certain claims, the Company is contractually obligated to defend and indemnify the purchaser of these former Magnetek business operations. The Company aggressively seeks dismissal from these proceedings. Management does not believe the asbestos proceedings, individually or in the aggregate, will have a material adverse effect on its financial position or results of operations. Magnetek, Inc., is a global provider of digital power control systems that are used to control motion and power primarily in material handling, elevator and energy delivery applications. The Company's products consist primarily of programmable motion control and power conditioning systems used on the following applications: overhead cranes and hoists; elevators; coal mining equipment; and renewable energy. ASBESTOS UPDATE: Tyco Int'l. Defends 4,500 Suits at Sept. 30 ------------------------------------------------------------ Tyco International Ltd. continues to defend itself and its subsidiaries from 4,500 pending asbestos-related lawsuits at September 30, 2011, according to the Company's November 16, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. The Company and certain of its subsidiaries along with numerous other companies are named as defendants in personal injury lawsuits based on alleged exposure to asbestos-containing materials. These cases typically involve product liability claims based primarily on allegations of manufacture, sale or distribution of industrial products that either contained asbestos or were attached to or used with asbestos-containing components manufactured by third-parties. Each case typically names between dozens to hundreds of corporate defendants. While the Company has observed an increase in the number of these lawsuits over the past several years, including lawsuits by plaintiffs with mesothelioma- related claims, a large percentage of these suits have not presented viable legal claims and, as a result, have been dismissed by the courts. The Company's strategy has been, and continues to be, to mount a vigorous defense aimed at having unsubstantiated suits dismissed, and, where appropriate, settling suits before trial. Although a large percentage of litigated suits have been dismissed, the Company cannot predict the extent to which it will be successful in resolving lawsuits in the future. As part of the Company's strategy, it has also entered into a cost-sharing agreement with an entity from which it acquired a business several decades ago. Under the agreement, insurance proceeds from policies that were purchased by the seller prior to its acquisition by the Company have been made available to the Company. To the extent there is insufficient insurance for claims subject to the agreement, the parties are required to share costs, although responsibility for such excess costs gradually transitions to the Company over the next nine to ten years. In 2022, the Company will ultimately be responsible for all excess costs if available insurance policies do not fully respond. While the Company expects that the insurance policies it has gained access to under the agreement will be sufficient to cover any increased liability resulting from this arrangement, it cannot predict whether this will be the case. As of September 30, 2011, there were approximately 4,500 lawsuits pending against the Company, its subsidiaries or entities for which the Company has assumed responsibility. Each lawsuit typically includes several claims, and the Company has determined that there were approximately 5,600 claims outstanding as of September 30, 2011, which reflects the Company's current estimate of the number of viable claims made against it, its affiliates or entities for which it has assumed responsibility in connection with acquisitions or divestitures. This amount includes adjustments for claims that are not actively being prosecuted, identify incorrect defendants or are duplicative of other actions. Tyco International Ltd. is a diversified, global company that provides products and services to customers in various countries throughout the world. Tyco is a provider of security products and services, fire protection and detection products and services, valves and controls, and other industrial products. ASBESTOS UPDATE: Tyco Records $82MM Net Liability at Sept. 30 ------------------------------------------------------------- Tyco International Ltd. recorded at September 30, 2011, $82 million as estimated net liability for pending and future asbestos-related claims, according to the Company's November 16, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. Annually, during the Company's third quarter, the Company performs an analysis with the assistance of outside counsel and other experts to update its estimated asbestos-related assets and liabilities. Due to a high degree of uncertainty regarding the pattern and length of time over which claims will be made and then settled or litigated, the Company uses multiple estimation methodologies based on varying scenarios of potential outcomes to estimate the range of loss. The Company's estimate of the liability and corresponding insurance recovery for pending and future claims and defense costs is predominantly based on claim experience over the past five years, and a projection which covers claims expected to be filed, including related defense costs, over the next seven years on an undiscounted basis. The Company has concluded that estimating the liability beyond the seven year period will not provide a reasonable estimate, as these uncertainties increase significantly as the projection period lengthens. The Company's estimate of asbestos-related insurance recoveries represents estimated amounts due to the Company for previously paid and settled claims and the probable reimbursements relating to its estimated liability for pending and future claims. In determining the amount of insurance recoverable, the Company considers a number of factors, including available insurance, allocation methodologies, solvency and creditworthiness of the insurers. On a quarterly basis, the Company re-evaluates the assumptions used to perform the annual analysis and records an expense as necessary to reflect changes in its estimated liability and related insurance asset. As of September 30, 2011, the Company's estimated net liability of $82 million was recorded within the Company's Consolidated Balance Sheet as a liability for pending and future claims and related defense costs of $306 million, and separately as an asset for insurance recoveries of $224 million. Similarly, as of September 24, 2010, the Company's estimated net liability of $106 million was recorded within the Company's Consolidated Balance Sheet as a liability for pending and future claims and related defense costs of $309 million, and separately as an asset for insurance recoveries of $203 million. The amounts recorded by the Company for asbestos-related liabilities and insurance-related assets are based on currently available information as well as estimates and assumptions. Key variables and assumptions include the number and type of new claims that are filed each year, the average cost of resolution of claims, the resolution of coverage issues with insurance carriers, amount of insurance and the solvency risk with respect to the Company's insurance carriers. Furthermore, predictions with respect to these variables are subject to greater uncertainty in the later portion of the projection period. Other factors that may affect the Company's liability and cash payments for asbestos- related matters include uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, reforms of state or federal tort legislation and the applicability of insurance policies among subsidiaries. The Company believes that its asbestos-related reserves as of September 30, 2011 are appropriate. However, actual liabilities or insurance recoveries could be significantly higher or lower than those recorded if assumptions used in the Company's calculations vary significantly from actual results. Tyco International Ltd. is a diversified, global company that provides products and services to customers in various countries throughout the world. Tyco is a provider of security products and services, fire protection and detection products and services, valves and controls, and other industrial products. ASBESTOS UPDATE: ITT to Indemnify Xylem for Potential Claims ------------------------------------------------------------ Xylem Inc. disclosed in its November 21, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2011, that it will be indemnified by ITT Corporation for possible asbestos-related claims. On October 31, 2011, ITT Corporation completed the previously announced spin-off of Xylem, Inc., formerly ITT's water equipment and services businesses. The Spin-off was completed pursuant to the Distribution Agreement, dated as of October 25, 2011, among ITT, Exelis Inc. and Xylem. As part of the Spin-off, ITT, Exelis and Xylem will indemnify each of the other parties with respect to such parties' assumed or retained liabilities under the Distribution Agreement and breaches of the Distribution Agreement or related spin agreements. ITT's indemnification obligations include asserted and unasserted asbestos and silica liability claims that relate to the presence or alleged presence of asbestos or silica in products manufactured, repaired or sold prior to the Distribution Date, subject to limited exceptions with respect to certain employee claims, or in the structure or material of any building or facility, subject to exceptions with respect to employee claims relating to Xylem buildings or facilities. The indemnifications are absolute in accordance with their terms and indefinite. The indemnification associated with pending and future asbestos claims does not expire. Xylem has not recorded a liability for matters for which it will be indemnified by ITT or Exelis through the Distribution Agreement and it is not aware of any claims or other circumstances that would give rise to material payments from the Company under such indemnifications. While no claims have been asserted against Xylem alleging injury caused by the Company's products resulting from asbestos exposure, it is possible that claims could be filed in the future. Should asbestos product liability claims be asserted against Xylem in the future, the Company believes there are numerous legal defenses available and would defend itself vigorously against such a claim. Xylem Inc. is an equipment and service provider for water and wastewater applications with a portfolio of products and services addressing the full cycle of water, from collection, distribution and use to the return of water to the environment. ASBESTOS UPDATE: Maremont Pegs Pending & Future Claims at $73MM --------------------------------------------------------------- Maremont Corporation, a subsidiary of Meritor Inc., determined that as of September 30, 2011, the most likely and probable liability for pending and future asbestos-related claims over the next ten years is $73 million, according to the Company's November 23, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 2, 2011. Maremont friction products containing asbestos from 1953 through 1977, when it sold its friction product business. Arvin Industries, Inc., a predecessor of the company, acquired Maremont in 1986. Maremont and many other companies are defendants in suits brought by individuals claiming personal injuries as a result of exposure to asbestos-containing products. Maremont had approximately 21,000 and 26,000 pending asbestos-related claims at September 30, 2011 and 2010, respectively. Although Maremont has been named in these cases, in the cases where actual injury has been alleged, very few claimants have established that a Maremont product caused their injuries. Plaintiffs' lawyers often sue dozens or even hundreds of defendants in individual lawsuits on behalf of hundreds or thousands of claimants, seeking damages against all named defendants irrespective of the disease or injury and irrespective of any causal connection with a particular product. For these reasons, Maremont does not consider the number of claims filed or the damages alleged to be a meaningful factor in determining its asbestos-related liability. Maremont's asbestos-related reserves and corresponding asbestos- related recoveries are summarized as (in millions): September 30, 2011 2010 ---- ---- Pending and future claims $77 $67 Asbestos-related insurance recoveries 67 57 Prior to February 2001, Maremont participated in the Center for Claims Resolution ("CCR") and shared with other CCR members in the payment of defense and indemnity costs for asbestos-related claims. The CCR handled the resolution and processing of asbestos claims on behalf of its members until February 2001, when it was reorganized and discontinued negotiating shared settlements. Since the CCR was reorganized in 2001, Maremont has handled asbestos- related claims through its own defense counsel and has taken a more aggressive defensive approach that involves examining the merits of each asbestos-related claim. Although the company expects legal defense costs to continue at higher levels than when it participated in the CCR, the company believes its litigation strategy has reduced the average indemnity cost per claim. Pending and Future Claims: Maremont engages Bates White LLC (Bates White), a consulting firm with extensive experience estimating costs associated with asbestos litigation, to assist with determining the estimated cost of resolving pending and future asbestos-related claims that have been, and could reasonably be expected to be, filed against Maremont. Bates White prepares these cost estimates on a semi-annual basis in March and September each year. Although it is not possible to estimate the full range of costs because of various uncertainties, Bates White advised Maremont that it would be possible to determine an estimate of a reasonable forecast of the cost of the probable settlement and defense costs of resolving pending and future asbestos-related claims, based on historical data and certain assumptions with respect to events that may occur in the future. Bates White provided an estimate of the reasonably possible range of Maremont's obligation for asbestos personal injury claims over the next ten years of $73 million to $83 million. After consultation with Bates White, Maremont determined that as of September 30, 2011, the most likely and probable liability for pending and future claims over the next ten years is $73 million. The ultimate cost of resolving pending and future claims is estimated based on the history of claims and expenses for plaintiffs represented by law firms in jurisdictions with an established history with Maremont. Assumptions: These assumptions were made by Maremont after consultation with Bates White and are included in their study: * Pending and future claims were estimated for a ten-year period ending in fiscal year 2021. The ten-year assumption is considered appropriate as Maremont has reached certain longer-term agreements with key plaintiff law firms and filings of mesothelioma claims have been relatively stable over the last few years resulting in an improvement in the reliability of future projections over a longer time period; * Maremont believes that the litigation environment will change significantly beyond ten years and that the reliability of estimates of future probable expenditures in connection with asbestos-related personal injury claims will decline for each year further in the future. As a result, estimating a probable liability beyond ten years is difficult and uncertain; * The ultimate cost of resolving pending and future claims filed in Madison County, Illinois, a jurisdiction where a substantial amount of Maremont's claims are filed, will decline to reflect average outcomes throughout the United States; * Defense and processing costs for pending and future claims filed outside of Madison County, Illinois will be at the level consistent with Maremont's prior experience; and * The ultimate indemnity cost of resolving nonmalignant claims with plaintiffs' law firms in jurisdictions without an established history with Maremont cannot be reasonably estimated. Recent changes in tort law and insufficient settlement history make estimating a liability for these non-malignant claims difficult and uncertain. Recoveries: Maremont has insurance that reimburses a substantial portion of the costs incurred defending against asbestos-related claims. The coverage also reimburses Maremont for any indemnity paid on those claims. The coverage is provided by several insurance carriers based on insurance agreements in place. Incorporating historical information with respect to buy-outs and settlements of coverage, and excluding any policies in dispute, the insurance receivable related to asbestos-related liabilities is $67 million as of September 30, 2011. The difference between the estimated liability and insurance receivable is primarily related to proceeds received from settled insurance policies. Certain insurance policies have been settled in cash prior to the ultimate settlement of the related asbestos liabilities. Amounts received from insurance settlements generally reduce recorded insurance receivables. Receivables for policies in dispute are not recorded. The amounts recorded for the asbestos-related reserves and recoveries from insurance companies are based upon assumptions and estimates derived from currently known facts. All such estimates of liabilities and recoveries for asbestos-related claims are subject to considerable uncertainty because such liabilities and recoveries are influenced by variables that are difficult to predict. The future litigation environment for Maremont could change significantly from its past experience, due, for example, to changes in the mix of claims filed against Maremont in terms of plaintiffs' law firm, jurisdiction and disease; legislative or regulatory developments; Maremont's approach to defending claims; or payments to plaintiffs from other defendants. Estimated recoveries are influenced by coverage issues among insurers and the continuing solvency of various insurance companies. If the assumptions with respect to the nature of pending and future claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Maremont's asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on the company's financial condition and results of operations. Meritor, Inc., formerly named ArvinMeritor, Inc., headquartered in Troy, Michigan, is a global supplier of a broad range of integrated systems, modules and components to original equipment manufacturers and the aftermarket for the commercial vehicle, transportation and industrial sectors. The company serves commercial truck, trailer, off-highway, military, bus and coach and other industrial OEMs and certain aftermarkets. Its principal products are axles, undercarriages, drivelines, brakes and braking systems. ASBESTOS UPDATE: Meritor's Pegs Rockwell-Related Claims at $19MM ---------------------------------------------------------------- Meritor, Inc., determined that as of September 30, 2011, the probable liability for pending and future claims related to Rockwell International over the next four years is $19 million, according to the Company's November 23, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 2, 2011. ArvinMeritor, Inc., a subsidiary of Meritor, along with many other companies, has also been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos used in certain components of Rockwell International products many years ago. Liability for these claims was transferred at the time of the spin-off of the automotive business from Rockwell in 1997. Currently there are thousands of claimants in lawsuits that name AM, together with many other companies, as defendants. However, the company does not consider the number of claims filed or the damages alleged to be a meaningful factor in determining asbestos- related liabilities. A significant portion of the claims do not identify any of Rockwell's products or specify which of the claimants, if any, were exposed to asbestos attributable to Rockwell's products, and past experience has shown that the vast majority of the claimants will likely never identify any of Rockwell's products. For those claimants who do show that they worked with Rockwell's products, management nevertheless believes it has meritorious defenses, in substantial part due to the integrity of the products involved and the lack of any impairing medical condition on the part of many claimants. The company defends these cases vigorously. Historically, AM has been dismissed from the vast majority of similar claims filed in the past with no payment to claimants. The company engages Bates White LLC to assist with determining whether it would be possible to estimate the cost of resolving pending and future Rockwell legacy asbestos-related claims that have been, and could reasonably be expected to be, filed against the company. Although it is not possible to estimate the full range of costs because of various uncertainties, Bates White advised the company that it would be able to determine an estimate of probable defense and indemnity costs which could be incurred to resolve pending and future Rockwell legacy asbestos-related claims. After consultation with Bates White, the company determined that as of September 30, 2011 and 2010 the probable liability for pending and future claims over the next four years is $19 million and $17 million, respectively. The accrual estimates are based on historical data and certain assumptions with respect to events that may occur in the future. The uncertainties of asbestos claim litigation and resolution of the litigation with the insurance companies make it difficult to predict accurately the ultimate resolution of asbestos claims beyond four years. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Rockwell maintained insurance coverage that management believes covers indemnity and defense costs, over and above self-insurance retentions, for most of these claims. The company has initiated claims against certain of these carriers to enforce the insurance policies, which are currently being disputed. The company expects to recover some portion of defense and indemnity costs it has incurred to date, over and above self-insured retentions, and some portion of the costs for defending asbestos claims going forward. Based on consultation with advisors and underlying analysis performed by management, the company has recorded an insurance receivable related to Rockwell legacy asbestos-related liabilities of $9 million at September 30, 2011 and 2010, respectively. If the assumptions with respect to the nature of pending claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Rockwell asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on the company's financial condition and results of operations. Meritor, Inc., formerly named ArvinMeritor, Inc., headquartered in Troy, Michigan, is a global supplier of a broad range of integrated systems, modules and components to original equipment manufacturers and the aftermarket for the commercial vehicle, transportation and industrial sectors. The company serves commercial truck, trailer, off-highway, military, bus and coach and other industrial OEMs and certain aftermarkets. Its principal products are axles, undercarriages, drivelines, brakes and braking systems. ASBESTOS UPDATE: Meritor's Appeal From $4.5MM Damages Pending ------------------------------------------------------------- Meritor Inc.'s appeal from an award of punitive damages of $4.5 million is pending with the California Court of Appeals, according to the Company's November 23, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 2, 2011. On March 4, 2010, Gordon Bankhead and his spouse filed suit in Superior Court for Alameda County, California, against more than 40 defendants that Mr. Bankhead claims manufactured or supplied asbestos-containing products he allegedly was exposed to during his career as a janitor; as an ordnance specialist in the National Guard; and as an automotive parts-man. By the time trial began on October 27, 2010, Mr. and Mrs. Bankhead had settled with all defendants except for the company and three other defendants. The claims against these four defendants were limited to Mr. Bankhead's work as an automotive parts-man. On December 23, 2010, the jury ruled against all four defendants, including the company. The company was assessed $375,000 in compensatory damages for which it has recorded a liability at September 30, 2011. Additionally, the company was assessed $4.5 million in punitive damages. The company has filed an appeal on the punitive damages award to the California Court of Appeals. Possible outcomes of the appeal include vacating the damages award in its entirety, reducing the award, affirming the award in its entirety or remanding the case back to the trial court. Accordingly, the possible estimated range of loss is $0 to $4.5 million. However, given the uncertainty associated with litigation including the appeal process, the company is unable to determine an estimate within that range which is considered more probable than others and accordingly has not recorded any liability at September 30, 2011. As a consequence of the uncertain outcome of the appeal process, the company is unable to estimate the impact, if any, the resolution of this matter may have on its liability for pending and future claims at September 30, 2011. Meritor, Inc., formerly named ArvinMeritor, Inc., headquartered in Troy, Michigan, is a global supplier of a broad range of integrated systems, modules and components to original equipment manufacturers and the aftermarket for the commercial vehicle, transportation and industrial sectors. The company serves commercial truck, trailer, off-highway, military, bus and coach and other industrial OEMs and certain aftermarkets. Its principal products are axles, undercarriages, drivelines, brakes and braking systems. ASBESTOS UPDATE: Ashland & Hercules Still Exposed to PI Suits ------------------------------------------------------------- Ashland Inc. and its wholly owned subsidiary Hercules Inc. are subject to liabilities from claims alleging personal injury caused by exposure to asbestos, according to the Company's November 23, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. Ashland is subject to liabilities from claims alleging personal injury caused by exposure to asbestos. Such claims result primarily from indemnification obligations undertaken in 1990 in connection with the sale of Riley Stoker Corporation (Riley), a former subsidiary. Although Riley was neither a producer nor a manufacturer of asbestos, its industrial boilers contained some asbestos-containing components provided by other companies. Hercules, a wholly-owned subsidiary of Ashland, is also subject to liabilities from asbestos-related personal injury lawsuits involving claims which typically arise from alleged exposure to asbestos fibers from resin encapsulated pipe and tank products which were sold by one of Hercules' former subsidiaries to a limited industrial market. Ashland and Hercules are also defendants in lawsuits alleging exposure to asbestos at facilities formerly or presently owned or operated by Ashland or Hercules. Claims Against Ashland To assist in developing and annually updating independent reserve estimates for future asbestos claims and related costs given various assumptions, Ashland retained Hamilton, Rabinovitz & Associates, Inc. (HR&A). The methodology used by HR&A to project future asbestos costs is based largely on recent experience, including claim-filing and settlement rates, disease mix, enacted legislation, open claims, and litigation defense. The claim experience of Ashland and Hercules are separately compared to the results of previously conducted third party epidemiological studies estimating the number of people likely to develop asbestos-related diseases. Those studies were undertaken in connection with national analyses of the population expected to have been exposed to asbestos. Using that information, HR&A estimates a range of the number of future claims that may be filed, as well as the related costs that may be incurred in resolving those claims. From the range of estimates, Ashland records the amount it believes to be the best estimate of future payments for litigation defense and claim settlement costs, which generally approximates the mid-point of the estimated range of exposure from model results. Ashland reviews this estimate and related assumptions quarterly and annually updates the results of a non-inflated, non- discounted approximate 50-year model developed with the assistance of HR&A. During the most recent update, completed during 2011, it was determined that the liability for Ashland asbestos claims should be increased by $41 million. Total reserves for asbestos claims were $543 million at September 30, 2011, compared to $537 million at September 30, 2010. Ashland has insurance coverage for most of the litigation defense and claim settlement costs incurred in connection with its asbestos claims, and coverage-in-place agreements exist with the insurance companies that provide most of the coverage currently being accessed. As a result, increases in the asbestos reserve have been largely offset by probable insurance recoveries. The amounts not recoverable generally are due from insurers that are insolvent, rather than as a result of uninsured claims or the exhaustion of Ashland's insurance coverage. For the Ashland asbestos-related obligations, Ashland has estimated the value of probable insurance recoveries associated with its asbestos reserve based on management's interpretations and estimates surrounding the available or applicable insurance coverage, including an assumption that all solvent insurance carriers remain solvent. Approximately 71% of the estimated receivables from insurance companies are expected to be due from domestic insurers, of which approximately 85% have a credit rating of B+ or higher by A. M. Best, as of September 30, 2011. The remainder of the insurance receivable is due from London insurance companies, which generally have lower credit quality ratings, and from Underwriters at Lloyd's, whose insurance policy obligations have been transferred to a Berkshire Hathaway entity. Ashland discounts this portion of the receivable based upon the projected timing of the receipt of cash from those insurers unless likely settlement amounts can be determined. During fiscal 2010, Ashland entered into a new agreement with a number of London market insurance companies with respect to coverage for asbestos-related insurance claims. As a result, a $12 million increase to the Ashland asbestos receivable was recorded within the Consolidated Balance Sheet, which had a $9 million (after-tax) effect on the Statements of Consolidated Income within the discontinued operations caption. In addition, Ashland had agreed to arbitrate a dispute regarding whether there is a significant deductible in the London market companies' policies in three policy periods that must be satisfied before the policies begin providing coverage for Riley Stoker asbestos claims. The London market companies had contended that Ashland must bear certain self-insured retentions in respect of Riley Stoker asbestos liabilities before the London coverage attaches in these three years, and Ashland disputed that such self-insured retentions must be satisfied. The parties conducted an arbitration hearing on this dispute in June 2011, and a decision was rendered by the arbitrator in October 2011 that essentially supported Ashland's previously stated position on these claims. At September 30, 2011, Ashland's receivable for recoveries of litigation defense and claim settlement costs from insurers amounted to $431 million (excluding the Hercules receivable for asbestos claims), of which $56 million relates to costs previously paid. Receivables from insurers amounted to $421 million at September 30, 2010. During 2011, the model used for purposes of valuing the asbestos reserve, and its impact on valuation of future recoveries from insurers, was updated. This model update along with potential settlement adjustments resulted in an additional $42 million net increase in the receivable for probable insurance recoveries. Claims Against Hercules During the most recent annual update, completed during 2011, it was determined that the liability for Hercules asbestos related claims should be decreased by $48 million. Total reserves for asbestos claims were $311 million at September 30, 2011 compared to $375 million at September 30, 2010. During December 2009, Ashland essentially completed the final valuation assessment of the Hercules asbestos claims liability existing as of the acquisition date and underlying claim files as part of transitioning to a standardized claims management approach. This assessment resulted in a $35 million and $22 million reduction to the asbestos liability and receivable, respectively, which was accounted for as an adjustment to Hercules' opening balance sheet since the adjustment related to claims that had been incurred as of the acquisition date. During the prior year annual update, completed during 2010, it was determined that the liability for asbestos claims should be reduced by $58 million. Based upon review of the assumptions underlying the prior year asbestos valuation model and the most recent claim filing and settlement trend rates for both pre- and post-acquisition periods at that time, Ashland determined that $14 million of the $58 million adjustment should be recorded to goodwill, which was partially offset by $6 million for an increase in probable insurance recoveries, totalling to a net $8 million adjustment to goodwill. For the Hercules asbestos-related obligations, certain coverage- in-place agreements with insurance carriers exist. As a result, increases in the asbestos reserve are partially offset by probable insurance recoveries. Ashland has estimated the value of probable insurance recoveries associated with its asbestos reserve based on management's interpretations and estimates surrounding the available or applicable insurance coverage, including an assumption that all solvent insurance carriers remain solvent. As of September 30, 2011, this estimated receivable consists exclusively of domestic insurers, of which approximately 96% have a credit rating of B+ or higher by A. M. Best. As of September 30, 2011 and September 30, 2010, the receivables from insurers amounted to $48 million and $68 million, respectively. During 2011, the model used for purposes of valuing the asbestos reserve and its impact on valuation of future recoveries from insurers was updated. This model update along with likely settlement adjustments caused a $20 million reduction in the receivable for probable insurance recoveries. Projecting future asbestos costs is subject to numerous variables that are extremely difficult to predict. In addition to the significant uncertainties surrounding the number of claims that might be received, other variables include the type and severity of the disease alleged by each claimant, the long latency period associated with asbestos exposure, dismissal rates, costs of medical treatment, the impact of bankruptcies of other companies that are co-defendants in claims, uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, and the impact of potential changes in legislative or judicial standards. Furthermore, any predictions with respect to these variables are subject to even greater uncertainty as the projection period lengthens. In light of these inherent uncertainties, Ashland believes that the asbestos reserves for Ashland and Hercules represent the best estimate within a range of possible outcomes. As a part of the process to develop these estimates of future asbestos costs, a range of long-term cost models was developed. These models are based on national studies that predict the number of people likely to develop asbestos- related diseases and are heavily influenced by assumptions regarding long-term inflation rates for indemnity payments and legal defense costs, as well as other variables mentioned previously. Ashland has currently estimated in various approximate 50-year models that it is reasonably possible that total future litigation defense and claim settlement costs on an inflated and undiscounted basis could range as high as approximately $900 million for the Ashland asbestos-related litigation and approximately $500 million for the Hercules asbestos-related litigation (or approximately $1.4 billion in the aggregate), depending on the combination of assumptions selected in the various models. If actual experience is worse than projected relative to the number of claims filed, the severity of alleged disease associated with those claims or costs incurred to resolve those claims, Ashland may need to increase further the estimates of the costs associated with asbestos claims and these increases could potentially be material over time. Ashland Inc. is a Kentucky corporation, with its principal executive offices located at 50 E. RiverCenter Boulevard, Covington, Kentucky 41011. It is a global specialty chemical company with four reportable segments: Ashland Specialty Ingredients; Ashland Water Technologies; Ashland Performance Materials and Ashland Consumer Markets. ASBESTOS UPDATE: 11,700 Cases Pending v. Mallinckrodt at Sept. 30 ----------------------------------------------------------------- One of Covidien Public Limited Company's subsidiaries continues to defend itself against 11,700 pending asbestos-related lawsuits at September 30, 2011, according to the Company's November 23, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. Mallinckrodt Inc. is named as a defendant in personal injury lawsuits based on alleged exposure to asbestos-containing materials. A majority of the cases involve product liability claims, based principally on allegations of past distribution of products incorporating asbestos. A limited number of the cases allege premises liability, based on claims that individuals were exposed to asbestos while on Mallinckrodt's property. Each case typically names dozens of corporate defendants in addition to Mallinckrodt. The complaints generally seek monetary damages for personal injury or bodily injury resulting from alleged exposure to products containing asbestos. The Company's involvement in asbestos cases has been limited because Mallinckrodt did not mine or produce asbestos. Furthermore, in the Company's experience, a large percentage of these claims have never been substantiated and have been dismissed by the courts. The Company has not suffered an adverse verdict in a trial court proceeding related to asbestos claims, and intend to continue to vigorously defend these lawsuits. When appropriate, the Company settles claims; however, amounts paid to settle and defend all asbestos claims have been immaterial. As of September 30, 2011, there were approximately 11,700 asbestos liability cases pending against Mallinckrodt. The Company estimates pending asbestos claims and claims that were incurred but not reported, as well as related insurance recoveries. The Company's estimate of its liability for pending and future claims is based on claim experience over the past five years and covers claims either currently filed or expected to be filed over the next seven years. The Company believes that it has adequate amounts recorded related to these matters. While it is not possible at this time to determine with certainty the ultimate outcome of these asbestos-related proceedings, the Company believes that the final outcome of all known and anticipated future claims, after taking into account amounts already accrued and insurance coverage, will not have a material adverse effect on its results of operations, financial condition or cash flows. Covidien Public Limited Company develops, manufactures and sells healthcare products for use in clinical and home settings. ASBESTOS UPDATE: Rock-Tenn Still Asserts Asbestos Is Contained -------------------------------------------------------------- Rock-Tenn Company continues to assert that it has properly contained the asbestos in its facilities, according to the Company's November 23, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. The Company's operations are subject to federal, state, local and foreign laws and regulations relating to workplace safety and worker health including the Occupational Safety and Health Act ("OSHA") and related regulations. OSHA, among other things, establishes asbestos and noise standards and regulates the use of hazardous chemicals in the workplace. Although the Company does not use asbestos in manufacturing its products, some of its facilities contain asbestos. For those facilities where asbestos is present, the Company believes it has properly contained the asbestos and it has conducted training of its employees in an effort to ensure that no federal, state or local rules or regulations are violated in the maintenance of its facilities. The Company does not believe that future compliance with health and safety laws and regulations will have a material adverse effect on its results of operations, financial condition or cash flows. Rock-Tenn Company is an integrated manufacturer of corrugated and consumer packaging and recycling products and is primarily a manufacturer of containerboard, recycled paperboard, bleached paperboard, packaging products and merchandising displays. It operates locations in the United States, Canada, Mexico, Chile, Argentina, Puerto Rico and China. ASBESTOS UPDATE: Scotts Miracle-Gro Still Exposed to PI Suits ------------------------------------------------------------- The Scotts Miracle-Gro Company continues to defend itself against asbestos-related lawsuits, according to the Company's November 23, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2011. The Company has been named as a defendant in a number of cases alleging injuries that the lawsuits claim resulted from exposure to asbestos-containing products, apparently based on the Company's historic use of vermiculite in certain of its products. The complaints in these cases are not specific about the plaintiffs' contacts with the Company or its products. The Company in each case is one of numerous defendants and none of the claims seek damages from the Company alone. The Company believes that the claims against it are without merit and is vigorously defending against them. It is not currently possible to reasonably estimate a probable loss, if any, associated with these cases and, accordingly, no reserves have been recorded in the Company's Consolidated Financial Statements. The Company is reviewing agreements and policies that may provide insurance coverage or indemnity as to these claims and is pursuing coverage under some of these agreements and policies, although there can be no assurance of the results of these efforts. There can be no assurance that these cases, whether as a result of adverse outcomes or as a result of significant defense costs, will not have a material effect on the Company's financial condition, results of operations or cash flows. The Scotts Miracle-Gro Company is a manufacturer and marketer of branded consumer lawn and garden products. Its products are marketed under some of the most recognized brand names in the industry. ********* 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. 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