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/raid1/www/Hosts/bankrupt/CAR_Public/120113.mbx C L A S S A C T I O N R E P O R T E R Friday, January 13, 2012, Vol. 14, No. 10 Headlines CARMAX INC: Awaits Plaintiffs' Next Move Over Arbitration Order CINTAS CORP: Appeals From Summary Judgment Orders Remain Pending COMPUCREDIT HOLDINGS: Credit Card Suit to Go to Arbitration COX COMMUNICATIONS: Faces Class Action Over Unpaid Overtime DEMANDTEC INC: Faces IBM Merger-Related Class Suit in California FORD MOTOR: Faces Class Action Over Defective Spark Plugs HONDA: January 25 Trial Set for Hybrid Mileage Suit LAND OF NOD: Recalls 1,600 Bed Frames Due to Entrapment Hazard LIVE NATION: Seeks Transfer of RICO Class Action to Maryland MICROSOFT: Sued in Calif. for Violating "Shine the Light Law" NCAA: Fox Challenges Discovery in Antitrust Class Action PACIFIC WEBWORKS: Awaits Ruling on Bids to Dismiss Class Suits QUANTUM RESIDENTIAL: Oregon Tenants File Class Action Over Bonds RAPONI & HUNTER: Sued in Florida Over Settlement Consulting Fee REDBOX: Faces Class Action Over Deceptive Trade Practices RED HAT: Awaits Ruling on Bid for Fund Disbursement in N.C. Suit RED HAT: Awaits Ruling on Motion to Dismiss IPO Suit Appeal ROLF'S PATISSERIE: Workers Mull Class Action Over Unpaid Wages SCHIFF NUTRITION: Faces Another Suit Over Schiff Move Free Ads SOUNDBITE COMMUNICATIONS: To Indemnify GameStop in "Karayan" Suit STATE OF OKLAHOMA: Foster Care Suit Legal Costs Nearly $7 Mil. SYMANTEC CORP: Consumers File Class Action in California TROPICANA PRODUCTS: Sued for Falsely Advertising Orange Juice UNIVERSITY OF CALIFORNIA: Data Breach Class Action Won't Proceed UNIVERSITY OF CALIFORNIA: Lecturer Files Discrimination Suit VOXX INTERNATIONAL: RF Radiation-Related MDL Remains Pending WASHINGTON MUTUAL: Judge Certifies Home Equity Class Action ZEP INC: May Enter Into More Talks to Settle California Suit Asbestos Litigation ASBESTOS UPDATE: Recused Miss. Judge Vacates $322-Mil. Verdict ASBESTOS UPDATE: $5.5MM Verdict Against Honeywell Reversed ASBESTOS UPDATE: Baron & Budd Wins $8.4MM Verdict Against Ashland ASBESTOS UPDATE: Union Pacific Faces 4 Separate Asbestos Lawsuits ASBESTOS UPDATE: Aristech Chem and 198 Others Face Lawsuit ASBESTOS UPDATE: Rubbles at Joplin Tornado Aftermath To Be Tested ASBESTOS UPDATE: Geelong Sheds Closed Due to Airborne Toxic Fibers ASBESTOS UPDATE: Israel Environment Head Doubles Abatement Budget ASBESTOS UPDATE: Everett Firemen Get Free lifetime Health Monitor ASBESTOS UPDATE: School Opts Abatement Costs Over Future Lawsuits ASBESTOS UPDATE: Lac d'Amiante and Jeffrey May Yet Reopen in 2012 ASBESTOS UPDATE: More Toxic Materials Add 50% to Abatement Fees ASBESTOS UPDATE: Abatement at Wash. School May Cost Millions ASBESTOS UPDATE: Lowest Bid for SportsPlex Abatement is at $32,523 ASBESTOS UPDATE: LAB Chrysotile in Bankruptcy; Meeting on Jan. 23 ASBESTOS UPDATE: Judge Harrison is New Madison Cty Docket Master ASBESTOS UPDATE: Woman With Mesothelioma Achieves Full Remission ASBESTOS UPDATE: ZMDC Eager to Resume Operations, Pays Out Workers ASBESTOS UPDATE: "Can't Tell Firms Not to File Here," Judge Says ASBESTOS UPDATE: Widower Secures Six-Figure Payout Out of Court ASBESTOS UPDATE: MassDEP Fines Bldg Owner for Violations ASBESTOS UPDATE: Marycrest Owner Pays Improper Abatement Fine ASBESTOS UPDATE: Scheduling for Asbestos Docket on March 26 ASBESTOS UPDATE: Shuttered Roro Mines Continue to Pose Risk ASBESTOS UPDATE: Law Firm Belluck & Fox Cites EPA's Fails ASBESTOS UPDATE: News Agency Tackles Sri Lankan Asbestos Industry ASBESTOS UPDATE: Raymark Site Mulls $40M Thermochemical Cure ASBESTOS UPDATE: CBC Video Blasts Jeffrey Mine Head's Claim ASBESTOS UPDATE: Bad Abatement Contaminates Neighbors in Chelsea ASBESTOS UPDATE: Hazmat Assessors Clears Razed Wauchope Apartment ASBESTOS UPDATE: Retiree Talks About Valley Forge Contamination ASBESTOS UPDATE: Bags of Toxic Waste Litter Dumped in Barnaby ASBESTOS UPDATE: Tasmania Updates Asbestos Registers State-wide ASBESTOS UPDATE: Lovett Contracting Inc. Faces EPA Lawsuit ASBESTOS UPDATE: Abatement in Perth to Be Completed in 1 Month ASBESTOS UPDATE: Most Claims vs. Bondex & SPHC Remain Stayed ASBESTOS UPDATE: Calif. Court Dismisses Suit vs. Supro Corp. ASBESTOS UPDATE: Worker's Suit Survives Motion to Dismiss ASBESTOS UPDATE: Texas Appeals Court Rules in Whistleblower Suit ASBESTOS UPDATE: GEICO Directed to Reimburse Austin Power ********* CARMAX INC: Awaits Plaintiffs' Next Move Over Arbitration Order --------------------------------------------------------------- CarMax, Inc. is awaiting plaintiffs' next step in connection with a November 2011 court decision granting the Company's motion to lift stay and compel their remaining claims into arbitration on an individualized basis, according to the Company's January 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2011. On April 2, 2008, John Fowler filed a putative class action lawsuit against CarMax Auto Superstores California, LLC and CarMax Auto Superstores West Coast, Inc. in the Superior Court of California, County of Los Angeles. Subsequently, two other lawsuits, Leena Areso et al. v. CarMax Auto Superstores California, LLC and Justin Weaver v. CarMax Auto Superstores California, LLC, were consolidated as part of the Fowler case. The allegations in the consolidated case involved: (1) failure to provide meal and rest breaks or compensation in lieu thereof; (2) failure to pay wages of terminated or resigned employees related to meal and rest breaks and overtime; (3) failure to pay overtime; (4) failure to comply with itemized employee wage statement provisions; and (5) unfair competition/California's Labor Code Private Attorney General Act. The putative class consisted of sales consultants, sales managers, and other hourly employees who worked for the company in California from April 2, 2004, to the present. On May 12, 2009, the court dismissed all of the class claims with respect to the sales manager putative class. On June 16, 2009, the court dismissed all claims related to the failure to comply with the itemized employee wage statement provisions. The court also granted CarMax's motion for summary adjudication with regard to CarMax's alleged failure to pay overtime to the sales consultant putative class. The plaintiffs appealed the court's ruling regarding the sales consultant overtime claim. On May 20, 2011, the California Court of Appeals affirmed the court's ruling in favor of CarMax. The plaintiffs filed a Petition of Review with the California Supreme Court, which was denied. As a result, the plaintiffs' overtime claims are no longer part of the case. The claims currently remaining in the lawsuit regarding the sales consultant putative class are: (1) failure to provide meal and rest breaks or compensation in lieu thereof; (2) failure to pay wages of terminated or resigned employees related to meal and rest breaks; and (3) unfair competition/California's Labor Code Private Attorney General Act. On June 16, 2009, the court entered a stay of these claims pending the outcome of a California Supreme Court case involving unrelated third parties but related legal issues. Subsequently, CarMax moved to lift the stay and compel the plaintiffs' remaining claims into arbitration on an individualized basis, which the court granted on November 21, 2011. Plaintiffs may file an appeal. The Fowler lawsuit seeks compensatory and special damages, wages, interest, civil and statutory penalties, restitution, injunctive relief and the recovery of attorneys' fees. The Company says it is unable to make a reasonable estimate of the amount or range of loss that could result from an unfavorable outcome in these matters. CINTAS CORP: Appeals From Summary Judgment Orders Remain Pending ----------------------------------------------------------------- Cintas Corporation is a defendant in a purported class action lawsuit, Mirna E. Serrano, et al. v. Cintas Corporation (Serrano), filed on May 10, 2004, and pending in the United States District Court, Eastern District of Michigan, Southern Division. The Serrano plaintiffs alleged that Cintas discriminated against women in hiring into various service sales representative positions across all divisions of Cintas. On November 15, 2005, the Equal Employment Opportunity Commission (EEOC) intervened in the Serrano lawsuit. The Serrano plaintiffs seek injunctive relief, compensatory damages, punitive damages, attorneys' fees and other remedies. On October 27, 2008, the United States District Court in the Eastern District of Michigan granted summary judgment in favor of Cintas limiting the scope of the putative class in the Serrano lawsuit to female applicants for service sales representative positions at Cintas locations within the state of Michigan. Consequently, all claims brought by female applicants for service sales representative positions outside of the state of Michigan were dismissed. Similarly, any claims brought by the EEOC on behalf of similarly situated female applicants outside of the state of Michigan have also been dismissed from the Serrano lawsuit. Cintas is a defendant in another purported class action lawsuit, Blanca Nelly Avalos, et al. v. Cintas Corporation (Avalos), which was filed in the United States District Court, Eastern District of Michigan, Southern Division. The Avalos plaintiffs alleged that Cintas discriminated against women, African-Americans and Hispanics in hiring into various service sales representative positions in Cintas' Rental division only throughout the United States. The Avalos plaintiffs sought injunctive relief, compensatory damages, punitive damages, attorneys' fees and other remedies. The claims in Avalos originally were brought in the lawsuit captioned Robert Ramirez, et al. v. Cintas Corporation (Ramirez), filed on January 20, 2004, in the United States District Court, Northern District of California, San Francisco Division. On May 11, 2006, the Ramirez and Avalos African-American, Hispanic and female failure to hire into service sales representative positions claims and the EEOC's intervention were consolidated for pretrial purposes with the Serrano case and transferred to the United States District Court for the Eastern District of Michigan, Southern Division. The consolidated case was known as Mirna E. Serrano/Blanca Nelly Avalos, et al. v. Cintas Corporation (Serrano/Avalos). On March 31, 2009, the United States District Court, Eastern District of Michigan, Southern Division entered an order denying class certification to all plaintiffs in the Serrano/Avalos lawsuits. Following denial of class certification, the Court permitted the individual Avalos and Serrano plaintiffs to proceed separately. In the Avalos case, the Court dismissed the remaining claims of the individual plaintiffs who remained in that case after the denial of class certification. On May 11, 2010, Plaintiff Tanesha Davis, on behalf of all similarly situated plaintiffs in the Avalos case, filed a notice of appeal of the District Court's summary judgment order in the United States Court of Appeals for the Sixth Circuit. The Appellate Court has made no determination regarding the merits of Davis' appeal. In September 2010, the Court in Serrano dismissed all private individual claims and all claims of the EEOC and the 13 individuals it claimed to represent. The EEOC has appealed the District Court's summary judgment decisions and various other rulings to the United States Court of Appeals for the Sixth Circuit. The Court of Appeals has not yet ruled on the EEOC's appeal. No further updates were reported in the Company's January 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2011. The litigation, if decided or settled adversely to Cintas, may, individually or in the aggregate, result in liability material to Cintas' consolidated financial condition or consolidated results of operation and could increase costs of operations on an ongoing basis. Any estimated liability relating to these proceedings is not determinable at this time. Cintas may enter into discussions regarding settlement of these and other lawsuits, and may enter into settlement agreements if it believes such settlement is in the best interest of Cintas' shareholders. COMPUCREDIT HOLDINGS: Credit Card Suit to Go to Arbitration ----------------------------------------------------------- Brent Kendall, writing for Dow Jones Newswires, reports that the Supreme Court on Jan. 10 blocked a class-action lawsuit alleging that a CompuCredit Holdings Corp. (CCRT) subsidiary misrepresented a credit card it offered to consumers with poor credit, ruling the plaintiffs must arbitrate their claims instead of proceeding in court. The ruling is the latest in a line of high-court opinions that have enforced binding arbitration clauses that are routinely included in consumer contracts. The case examined whether consumers' legal claims under the federal Credit Repair Organizations Act can be steered into arbitration instead of the courts. The 1996 law was designed to protect consumers from unfair or deceptive practices by credit repair organizations. The plaintiffs alleged CompuCredit Corp. deceived consumers in its marketing of the Aspire Visa credit card, a product aimed at consumers with poor credit. The plaintiffs alleged that CompuCredit advertised the card as a way for individuals to rebuild their credit, but due to hidden fees and high charges, the card would have the opposite effect. The plaintiffs also brought claims against Synovus Bank, which issued the card. Lower courts ruled the plaintiffs could proceed in court, but the Supreme Court ruled 8-1 that the case must go to arbitration, as required by the credit-card contract the consumers signed. Justice Antonin Scalia, writing for the court, said nothing in the credit-repair law barred the use of arbitration. Justice Ruth Bader Ginsburg was the court's only dissenter. Businesses say arbitration is a quick and cost-effective way to resolve disputes. Consumer advocates generally dislike arbitration because it can prevent individuals from pooling their claims into class-action lawsuits. They also believe the arbitration process is less fair and transparent than the court system. The case is CompuCredit v. Greenwood, 10-948. COX COMMUNICATIONS: Faces Class Action Over Unpaid Overtime ----------------------------------------------------------- Courthouse News Service reports that Cox Communications stiffs its service techs for overtime, according to a federal class action. A copy of the Complaint in Simon v. Cox Enterprises, Inc., et al., Case No. 12-cv-00024 (W.D. Ok.), is available at: http://www.courthousenews.com/2012/01/10/Employ.pdf The Plaintiff is represented by: Rand C. Eddy, Esq. EDDY LAW FIRM, PC 228 Robert S. Kerr Ave., Suite 220 Oklahoma City, OK 73102 Telephone: (405) 239-2524 - and - Melissa S. Hedrick, Esq. Daniel P. Markoff, Esq. ATKINS & MARKOFF 9211 Lake Hefner Parkway, Suite 104 Oklahoma City, OK 73120 Telephone: (405) 607-8757 DEMANDTEC INC: Faces IBM Merger-Related Class Suit in California ---------------------------------------------------------------- DemandTec, Inc., is facing a class action lawsuit in California in connection with its proposed merger with a subsidiary of International Business Machines Corporation, according to the Company's January 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2011. On December 7, 2011, the Company entered into a definitive agreement and plan of merger (the "Merger Agreement") with International Business Machines Corporation ("IBM") and Cudgee Acquisition Corp. ("Sub"), a wholly-owned subsidiary of IBM. Subject to the terms of the Merger Agreement and subject to the conditions thereof, Sub will merge with and into DemandTec, and DemandTec will become a wholly owned subsidiary of IBM (the "Merger"). If the Merger is completed, DemandTec's stockholders will be entitled to receive $13.20 in cash (the "Merger Consideration") for each share of DemandTec's common stock owned by them as of the date of the Merger. The Company is aware of one purported class action lawsuit filed in the Superior Court of the State of California in and for the County of Santa Clara that an alleged DemandTec stockholder has filed against the Company, each member of its board of directors, IBM and Cudgee in connection with the Merger. The complaint asserts claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty and seeks equitable relief, including an injunction preventing the consummation of the Merger, rescission in the event the Merger is consummated, and an award of damages. The Company says the outcome of any such litigation is uncertain. If a dismissal is not granted or a settlement is not reached, this lawsuit could prevent or delay completion of the Merger and result in substantial costs to the Company, including any costs associated with the indemnification of its directors and officers. Other DemandTec shareholders may also file additional lawsuits against it, IBM, and/or its directors and officers in connection with the Merger. FORD MOTOR: Faces Class Action Over Defective Spark Plugs --------------------------------------------------------- Courthouse News Service reports that a federal class action claims Ford sold F-150 trucks, Mustangs and Explorers with "defective spark plugs and related engine defects" in model years 2004-08. A copy of the Complaint in Lanzi v. Ford Motor Company, Case No. 12-cv-60037 (S.D. Fla.), is available at: http://www.courthousenews.com/2012/01/10/Ford.pdf The Plaintiff is represented by: Lewis S. Eidson, Esq. Curtis B. Miner, Esq. Francisco R. Maderal, Esq. COLSON HICKS EIDSON 255 Alhambra Circle, Penthouse Coral Gables, FL 33134 Telephone: (305) 476-7400 E-mail: mike@colson.com curt@colson.com frank@colson.com HONDA: January 25 Trial Set for Hybrid Mileage Suit --------------------------------------------------- Linda Deutsch, writing for The Associated Press, reports that a Honda hybrid car owner who took the auto giant to small-claims court for failing to deliver promised mileage is heading back to court for another round after a judge ordered a continuation of her trial on Jan. 10. Los Angeles County Superior Court Commissioner Douglas Carnahan did not address the substance of the unusual lawsuit by Heather Peters, the owner of a hybrid Honda Civic. But he sought more information on technicalities of its filing, such as the possibility of a statute-of-limitations problem. "Of particular interest to the court is whether, considering the date of purchase of the vehicle, the plaintiff is within operative statutes of limitations relating to claims of relief," Mr. Carnahan said. He asked for additional legal arguments and scheduled another session of the trial for Jan. 25 in Torrance, the U.S. headquarters for Honda. After testimony and arguments on Jan. 3, he took the matter under submission and said he would have a ruling soon. But he removed it from submission on Jan. 10 in order to get clarification. A class-action lawsuit involving the hybrid Civic has already been filed, with Honda proposing a settlement that would give each owner $100 to $200 and a $1,000 credit on the purchase of a new Honda. Ms. Peters has acknowledged that the statute of limitations for individual fraud suits like hers can be from one to four years in California. She said, however, that the filing of the class- action lawsuit "stops the ticking of the clock" under a legal theory known as "equitable tolling." Experts on class-action law agreed with her interpretation. "The clock stopped ticking when the class action was filed," said attorney Clifford Pearson. Attorney Aaron Jacoby noted that the statute would start tolling again on the day she opted out of the class-action lawsuit which was Dec. 8, 2011. He said the statute is four years. Ms. Peters bought her car in April 2006 and the first class-action lawsuit over the mileage issue was filed in March. Ms. Peters claimed the car never came close to the 50 miles per gallon promised and that it got no more than 30 miles per gallon when the battery began deteriorating. She still owns the car and wants to be compensated for money lost on gas, as well as punitive damages, amounting to $10,000. Ms. Peters, a former lawyer, took the unique action of opting out of the class-action lawsuit involving thousands of hybrid Honda owners. She has said that if all owners of the problem cars won in small-claims court, it could cost Honda $2 billion. In addition to seeking more information on the statute-of- limitations issue, Mr. Carnahan also requested arguments on the effect of a "presuit notice requirement." "I am confident that I will prevail on the questions raised in the Court's order," Ms. Peters said. She said she was encouraged by the fact that the commissioner was giving the case close consideration. Mr. Carnahan ruled in favor of Ms. Peters on one issue when he refused to consider a brief filed by Honda's chief counsel. He rejected it because litigants are not allowed to have lawyers in small-claims court. Ms. Peters has urged other owners of the cars to reject Honda's proposed class-action settlement and has launched a Web site called DontsettlewithHonda.com. Chris Martin, spokesman for Honda, said the company would "be reviewing the communication from the court and we will participate in the Jan. 25 hearing." LAND OF NOD: Recalls 1,600 Bed Frames Due to Entrapment Hazard -------------------------------------------------------------- About 1,600 Blake Bed Frames were voluntarily recalled by The Land of Nod, of Morton Grove, Illinois, in cooperation with the U.S. Consumer Product Safety Commission. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. A child's torso can become lodged in the gap between the footboard's top rail and the mattress, posing an entrapment hazard to the child. The firm has received one report of a child becoming entrapped in the gap. The child was freed by her parents without injury. This recall involves Blake model bed frames. The frames were sold in full and twin sizes, in either a blonde stain or painted white. "The Land of Nod" and "Blake" are printed on a barcode sticker affixed to the headboard. A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12711.html The recalled products were manufactured in Vietnam and sold exclusively at The Land of Nod stores in Illinois and Washington, The Land of Nod catalog and Web site from September 2009 through October 2011 for about $600 for the twin size and $700 for full size. Consumers should immediately stop using the recalled footboard and contact The Land of Nod for a replacement footboard with a closed- gap design. For more information, contact The Land of Nod at (800) 933-9904 between 8:30 a.m. and 5:00 p.m. Central Time Monday through Friday, visit the firm's Web site at http://www.landofnod.comor e-mail the firm at recall@landofnod.com LIVE NATION: Seeks Transfer of RICO Class Action to Maryland ------------------------------------------------------------ Deborah Speer, writing for Pollstar, reports that Live Nation moved to send a class action complaint alleging illegal service charges, kickbacks and RICO violations to Maryland federal court, saying it is the proper venue to hear the case. The original suit, filed by plaintiff Andre Bourgeois in Baltimore, claims a city ordinance limits ticket service charges to 50 cents. He also claims LN violated Racketeer Influenced and Corrupt Organization laws by conspiring with Lyric Productions, which operates the Lyric Opera House in Baltimore, and paying it a "kickback." The suit was originally filed in June. Live Nation moved for dismissal in October and Bourgeois voluntarily asked that it be dismissed the next month. He then refiled the case to include Lyric. "The defendants have completely ignored the restrictions of the law and have criminally overcharged and conspired to overcharge their customers," the suit said. "They have reaped huge financial windfalls from operating outside of the rules which apply to them." Live Nation responded in court filings that the ordinance does not apply to its sale of tickets. "The universal understanding of 'ticket scalping' encompasses only the reselling of tickets (and not an original sale as alleged here)," the company said in a filing. Mr. Bourgeois alleges he bought a ticket to see Jackson Browne at Lyric Opera House in 2009 and had a service charge exceeding $12 on top of the $52 face value. He bought his ducat through Ticketmaster, but Live Nation is a defendant because of the merger of the two. The lawsuit claims Baltimore City Code prohibits the sale of tickets, at face value or above, by anyone not licensed as a "ticket agency" by the Baltimore City Director of Finance. Neither Live Nation nor fellow defendant Monumental Ticketing -- previously known as Ticketmaster Group Limited Partnership -- are licensed as ticketing agencies in Baltimore, according to the suit. And, if they were, the city code allows them to have a maximum service charge of 50 cents per ticket. The suit specifically alleges violations of the RICO Act, the Maryland Consumer Protection Act, negligent misrepresentation and other state law claims. It seeks to represent a class of everyone who bought tickets to an event in Baltimore through Live Nation over the last four years. MICROSOFT: Sued in Calif. for Violating "Shine the Light Law" ------------------------------------------------------------- Courthouse News Service reports that a Los Angeles Superior Court class action claims Microsoft violates California's "Shine the Light Law" by failing to tell subscribers to its Web sites what personal information the company will sell or share with third- party marketers. NCAA: Fox Challenges Discovery in Antitrust Class Action -------------------------------------------------------- Matt Reynolds at Courthouse News Service reports that Fox does not want to let Bill Russell and Oscar Robertson look at broadcasting agreements with the NCAA, in a fight over video games. The athletes claim that the NCAA, its for-profit partner Collegiate Licensing Co. and video game-maker Electronic Arts (EA) used their "names, images and likenesses" without paying them. Fox Broadcasting is not a defendant in the antitrust case. This article is based on a Joint Stipulation on Motion to Enforce Fox Broadcasting Co.'s Responses to Plaintiffs' Subpoena, filed on Jan 5 in Federal Court. The cutoff date for discovery in the case is Jan. 31, according to the document. "Plaintiffs allege that the NCAA accomplishes its scheme in part by requiring all student athletes, as a condition of their eligibility to compete in NCAA athletic events, to sign a form each year that purports to relinquish in perpetuity all rights to the commercial use of their names and images, even after they graduate and are no longer subject to NCAA rules," the class says. The athletes say the release forms and NCAA rules allow licensees and broadcasters to use "footage containing the images and likenesses of student athletes, thus creating a broad range of multimedia revenue streams for themselves. These revenue streams flow from, among other things, 'classic' games shown on cable television networks owned by Fox Broadcasting Co. ('Fox') and others, sales and rentals of DVDs of game films, sales of on- demand game films, and 'stock footage' for corporate advertisers and video games. The complaint alleges that the 'collegiate licensing market' generates billions in revenues for the NCAA and its member institutions while the former players, whose names, images and likenesses are exploited to generate this money, make nothing." The players add: "Fox is an integral source of information regarding plaintiffs' antitrust claims involving the licensing, sale, and use of former student athletes' names, images and likeness. Fox, along with NCAA member conference the Big Ten, jointly own the Big Ten Network. Plaintiffs allege that the NCAA, and its member schools and conferences, worked with various third parties to 'monetize' the student athletes' names and images by selling, licensing, and marketing them to businesses and consumers (such as Fox and the Big Ten Network)." "The television contracts and licensing agreements sought by the subpoena demonstrate how NCAA rules and regulations are used to carry out this scheme and the ways in which they affect the future rights of student athletes and must be produced," the class claims. But Fox claims that its TV and broadcast agreements are irrelevant to the players' claims. "Although an athlete may insist on being paid when an advertiser uses his or her image to endorse a restaurant or sell cars, it is well settled that television networks may freely broadcast and distribute footage of sporting events without obtaining each participant's consent," Fox states in the joint stipulation. "This applies to live broadcasts as well as re-broadcasts on television or online. Any contrary rule would severely infringe on the public's First Amendment right of access to newsworthy events and matters of public interest. Indeed, as a practical matter, if a television network like Fox were required to obtain consent from, and compensate, every single athlete, coach, cheerleader, and spectator before broadcasting a sporting event, it would be impossible to continue televising sports. Tellingly, plaintiffs have not sued Fox or any other television network because they know full well that sports broadcasts are privileged under California law and the First Amendment." Fox claims that the athletes' demands are based "on the novel and farfetched assertion that that student athletes are arguably entitled to a share of the revenues generated from Fox's broadcast of college sports. Plaintiffs claim that Fox's television broadcast agreements would shed light on their antitrust injures because their damages supposedly include millions of dollars in lost television revenue. But plaintiffs' claim of relevance is entirely without merit because Fox is not a defendant or alleged co-conspirator and has a statutory and constitutional right to televise sports without paying each athlete." Fox claims that responding to the records request would be "unduly burdensome," and would "literally require hundreds of hours of labor and threaten to disrupt" the operations of Fox's "sister networks," which Fox does not control. "Plaintiffs seek every single document that has ever mentioned plaintiffs' highly publicized lawsuit, regardless of context or substance. This alone evidences a classic fishing expedition, with no regard for relevance or burden on Fox, a nonparty to this lawsuit," Fox says. It also objects to the release of "highly confidential information, such as nonpublic contracts, financial terms, revenue information, and negotiations." "Plaintiffs' lawsuit against the NCAA does not give plaintiffs unbridled authority to inspect the books and records of a non- party based solely on the fact that the non-party may have done business with another non-party that, in turn, has a business relationship with a named party," Fox says. The broadcaster says it offered excerpts of television agreements which mentioned student athlete licensing rights, as well as "non- privileged correspondence between Fox and other parties" involved in the lawsuit. But Fox says the players rejected its "reasonable proposal" out of hand. A copy of the Joint Stipulation on Motion to Enforce Fox Broadcasting Co.'s Responses to Plaintiffs' Subpoena in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, Case No. 12- cv-00114 (C.D. Calif.), is available at: http://www.courthousenews.com/2012/01/09/JointStip.pdf The Plaintiffs are represented by: Jon T. King, Esq. HAUSFELD LLP 44 Montgomery Street, Suite 3400 San Francisco, CA 94104 Telephone: (415) 633-1908 E-mail: jking@hausfeldllp.com PACIFIC WEBWORKS: Awaits Ruling on Bids to Dismiss Class Suits -------------------------------------------------------------- Pacific WebWorks, Inc. is awaiting court decisions on its motions to dismiss certain class action lawsuits pending in various jurisdictions, according to the Company's January 9, 2012, Form 10-K/A filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2010. During November 2009, three lawsuits were filed against Pacific WebWorks in various jurisdictions. The legal actions allege similar claims related to procedures the Company use to sell its products in its ordinary course of business. On November 9, 2009, Barbara Ford filed an action in the Circuit Court of Cook County, Illinois, Chancery Division. A second action was filed on November 12, 2009, by Deanna Pelletier in the Superior Court of the State of California, County of Solano. A third action was filed by Lisa Rasmussen on November 20, 2009, in the Superior Court of Washington, Snohomish County. On December 18, 2009, the Barbara Ford matter was removed to the United States District Court for the Northern District of Illinois. On December 18, 2009, the Deanna Pelletier matter was removed to the United States District Court for the Eastern District of California. On December 23, 2009, the Lisa Rasmussen matter was removed to the United States District Court for the Western District of Washington. On July 9, 2010 a lawsuit was brought in Florida by the same law firm as the three cases. On July 9, 2010, Randy Guffey filed an action in the Circuit Court for the Twentieth Judicial Circuit, Collier County, Florida, which action was removed to the United States District Court for the Middle District of Florida, Ft. Myers Division. On January 21, 2010, the State of Florida served the Pacific WebWorks with a subpoena seeking production of documents related to an alleged violation of consumer protection laws in Florida. The Company denied any violation of Florida consumer protection laws and responded to the subpoena. The State of Florida and Pacific WebWorks have come to a resolution as to the settlement of this dispute with a Settlement Agreement being fully executed on July 11, 2011, which required the Company to pay $19,000 for costs, attorneys' fees and future monitoring by the State of Florida Department of Legal Affairs Revolving Trust Fund. On July 10, 2010, Thomas Aikens filed an action in the Circuit Court of Jackson County, Missouri, which matter was removed to the United States District Court for the Western District of Missouri. This matter was brought by the same law firm as the other cases. On September 19, 2011, Lynette Booth filed an action in the Circuit Court of Cook County, Illinois, Chancery Division alleging violations of consumer protection laws by Pacific WebWorks. This case was removed to the United States District Court for the Northern District of Illinois on December 1, 2011. Damages are unspecified in this action. Pacific WebWorks has answered the complaint and denied liability and intends to defend against all such claims. All plaintiffs in these cases are being represented by the same legal firm and each complaint seeks class action certification. The complaints allege that Pacific WebWorks violated consumer protection laws, committed fraud and used deceptive trade practices in relation to the manner in which Pacific WebWorks charged for purchases of its products. Each action seeks compensatory and punitive damages, plus reasonable costs and attorney fees. In response to these actions, Pacific WebWorks retained the law firm of Snell & Wilmer as legal counsel to vigorously defend the Company in these lawsuits. Discovery began on the class certification phase in the Illinois, Washington and California lawsuits. The Company's legal counsel intends to oppose class certification and filed motions to dismiss all claims in the Illinois and Washington actions, which motions were granted in part and denied in part. Pacific WebWorks has renewed its motion to dismiss in the Illinois action, which motion has not yet been ruled upon. In addition, Pacific Webworks has brought motions to dismiss the Pelletier, Guffey and Aikens actions, which motions have not yet been ruled upon. As a result of the class actions lawsuits, Blooksy Interactive, LLC has threatened claims of indemnification against Pacific WebWorks. The Company has denied that it has any duty to defend or indemnify Blooksy. QUANTUM RESIDENTIAL: Oregon Tenants File Class Action Over Bonds ---------------------------------------------------------------- Lee Fehrenbacher, writing for DJC Oregon, reports that Oregon tenants are bringing a class action lawsuit against a Northwest property management firm. The lawsuit challenges Vancouver, Wash.-based Quantum Residential Inc.'s practice of allegedly requiring tenants to purchase nonrefundable bonds in lieu of providing security deposits. Portland-based Stoll Berne filed the original complaint. RAPONI & HUNTER: Sued in Florida Over Settlement Consulting Fee --------------------------------------------------------------- Marimer Matos at Courthouse News Service reports that Argentinean attorneys claim a Miami law firm stiffed them for a 23 percent consulting fee from a $410 million consumer class action settlement "and one of the largest attorney's fee awards in such a case, over $100 million." The class action involved U.S. banks' chronologically rearranging debit transactions from largest to smallest, to generate "billions of dollars of additional overdraft fees." Raponi & Hunter Abogados claim Jeremy Alters "sold off or assigned interests in the recovery from the class actions lawsuits to fund his law firm and/or his lavish, extravagant lifestyle." They also claim: "On December 28, 2011, The Florida Supreme Court suspended Alters from the practice of law, until further order of the court, in regard to the pending Florida Bar complaint against Alters for trust account misappropriation." Raponi & Hunter sued Alters Morelli Ranter fka the Alters Law Firm fka Alters, Boldt, Brown, Rash, Culmo; Jeremy W. Alters, Bruce S. Rogow PA and Bruce S. Rogow in Miami-Dade County Court. According to the Argentinean partners, Osvaldo Raponi and Jaime Hunter: "In August, 2008, Raponi, an expert in banking law, and Hunter, brought to Alters and his firm the most significant case in Alters' legal career, litigation over the unfair assessment of overdraft fees by banking institutions in the United States and elsewhere that chronologically altered the order of debit transactions to highest to lowest, resulting in billions of dollars of additional overdraft fees. This was the first consumer banking class action in which Alters or his firm were involved. Raponi and his firm were the architects of the claims brought by Alters, which resulted in one of the largest consumer class action settlements in history, $410 million, and one of the largest attorney's fee awards in such a case, over $100 million. "Not only did Raponi and Hunter bring this case to Alters and his firm, Raponi also provided important and valuable contributions to Alters in pursuing the litigation. In a deposition given in litigation involving the Argentinean attorney [Adrian Campos] who introduced Alters to Raponi and Hunter, Alters acknowledged that Raponi consulted in the overdraft case in a 'meaningful way that deserves compensation for his work,' that he has done work, '(a) lot of it,' that Raponi provided information 'that we probably couldn't have gotten elsewhere that benefitted the common benefit (sic) of the MDL going forward,' and that 'we have met with him and spoken to him on countless occasions about the case, about the future of the case, about the press, about everything. And that was an ongoing working relationship' Alters also acknowledged that Raponi was able to provide information about the case, that he followed the case, 'not just ours but others'; and that he provided helpful insight into what the case was about or where to look for things. "In exchange for originating the case and providing this assistance, Alters agreed that Raponi and Hunter would receive 23 percent of his firms' fee from this litigation. "Years later, after the Bank of America case settled, Alters betrayed Raponi and Hunter and misrepresented that the fee agreement was unenforceable and that they could receive a mere fraction of the agreed upon fee as 'consultants,' not as foreign lawyers, or they would receive nothing at all," according to the complaint. Raponi & Hunter says Bank of America settled with the Miami lawyers in February 2011 for $410 million. The Argentinean lawyers say: "No one from ALF [the Alters Law Firm], Alters and Rogow included, notified Raponi and Hunter of this settlement. Instead, Raponi and Hunter learned of the settlement when it was released in the news. "Concerned over this lack of disclosure, Raponi and Hunter flew to Miami to meet with Alters in mid-February, 2011. This was their first meeting with Alters in 22 months. At the meeting, Alters represented to Raponi and Hunter that he had spoken to Rogow about the validity of the fee agreement and that Rogow had advised him that the agreement for 23 percent contract was not enforceable. Alters further stated that the agreement was not valid because it was for the sharing of legal fees between a Florida lawyer and a non-lawyer, that it would not be enforced by the Court. Alters stated that he was willing to restructure it as a consulting agreement for 5 percent, and therefore it would not need approval of the court. Based on Alters' representations and his statements that Raponi and Hunter would not be able to recover any fee if they did not sign a new contract, they had no choice but to sign a new contract for 6 percent of the ALF fee after Alters agreed to increase it by 1 percent to cover taxes that would be due from fees paid to R&H under the agreement. Raponi signed the new agreement on February 16, 2011, only because Alters convinced Raponi and Hunter that they would otherwise lose any fee. . . . "At no point did Alters or ALF inform the plaintiffs that Rule 4- 5.5 of the Regulating the Florida Bar specifically authorizes lawyers admitted in non-United States jurisdictions, such as Raponi and Hunter, to perform temporary legal services in Florida when undertaken in association with a lawyer, such as Alters or Rogow, who is admitted to practice in Florida and who actively participates in the matter. "Nor did Alters or ALF inform the plaintiffs that the BofA settlement would allow the attorney's fees to be awarded under the agreement to be allocated among class counsel without the approval of the court." The Argentinean lawyers say they also learned from the news that Adrian Campos was suing Alters and his law firm for refusing to pay his referral fee. Raponi & Hunter says Alters had told them the referral fee was 2 percent, though Mr. Campos claims it was 25 percent. The complaint states: "Recognizing that Alters never made that disclosure to them, the Plaintiffs suspected that Alters had deceived them as to his purported justification for reducing their fee percentage. "On information and belief, Alters prevailed upon plaintiffs to enter into the reduced fee percentages not because of the purported unenforceability of Contract 1 [their original contract], but because Alters had sold off or assigned interests in the recovery from the class actions lawsuits to fund his law firm and/or his lavish, extravagant lifestyle." According to the complaint: "Since the Bank of America Settlement, the following six banks in the Overdraft MDL have settled: (1) Union Bank, N.A for $35 million on November 1, 2011 in Larson v. Union Bank, NA., S.D. Fla. Case No. 09-23235-KlNG; (2) Bank of Oklahoma, N.A for $19 million on November 15, 2011 in Case v. Bank of Oklahoma, NA., S.D. Fla. Case No. 11-20815-KING; (3) Associated Bank, N.A for $13 million on November 23,2011 in Harris v. Associated Bank, NA., S.D. Fla. Case No. 10-22948-KING; (4) Great Western Bank for $2.2 million on December 13,2011 in McKinley v. Great Western Bank, S.D. Fla. Case No. 10-22770-KING; (5) BMO Harris Bank, N.A for $9.4 million on November 30, 2011 in Blahut v. BMO Harris Bank, NA., S.D. Fla. Case No. 1O-21821-KING; and (6) Commerce Bank for $18.3 million on December 23,2011 in Wolfgeher v. Commerce Bank, S.D. Fla. Case No. 10-22017-KING. On information and belief, ALF, Alters, Rogow, or Rogow, P.A will receive a portion of the attorney fees to be awarded in these cases." Raponi & Hunter ask the court to declare that their first contract is valid, plus damages for unjust enrichment, breach of contract, fraudulent misrepresentation, negligent misrepresentation, and they seek rescission of Contract 2 for fraud, lack of consideration and mutual mistake. A copy of the Complaint in Raponi & Hunter Abogados, et al. v. Alters Morelli Ratner, P.A., et al., Case No. 11-43671 (Fla. Cir. Ct., Miami-Dade Cty.), is available at: http://www.courthousenews.com/2012/01/10/Raponi.pdf The Plaintiffs are represented by: Herman J. Russomanno, Esq. Robert J. Borrello, Esq. Hermano J. Russomanno III, Esq. RUSSOMANNO & BORRELLO, P.A. Museum Tower - Penthouse 2800 150 West Flagler Street Miami, FL 33130 Telephone: (305) 373-2101 - and - Richard J. Diaz, Esq. RICHARD J. DIAZ, P.A. 3127 Ponce De Leon Blvd. Coral Gables, FL 33134 Telephone: (305) 444-7181 - and - Stuart N. Ratzan, Esq. RATZAN LAW GROUP, P.A. 1450 Brickell Avenue Suite 2600 Miami, FL 33131-3456 Telephone: (305) 374-6366 E-mail: stuart@ratzanlawgroup.com REDBOX: Faces Class Action Over Deceptive Trade Practices --------------------------------------------------------- Nick Divito at Courthouse News Service reports that Redbox e-mails customers telling them they can keep rented movies an extra day for free, then charges them for the extra day, a class action claims in federal court. Class representative Bruce Forkush says Coinstar, which owns Redbox and its $1-per-movie rental kiosks, set up an online reservation system that allows customers to reserve movies and video games for pick up the next day. He says Redbox sent him an e-mail saying that he could keep the movie an extra day at no additional charge, then turned around and charged him for the next day's rental. Mr. Forkush seeks unspecified damages for alleged violations of the Nevada Deceptive Trade Practices Act. A copy of the Complaint in Forkush v. Coinstar, Inc., Case No. 12- cv-00006 (D. Nev.), is available at: http://www.courthousenews.com/2012/01/09/42862.htm The Plaintiff is represented by: Robert B. Gerard, Esq. Ricardo R. Ehmann, Esq. GERARD & ASSOCIATES 2840 South Jones Boulevard Building D, Suite #4 Las Vegas, NV 89146 Telephone: (702) 251-0093 E-mail: rgerard@gerardlaw.com rehmann@gerardlaw.com RED HAT: Awaits Ruling on Bid for Fund Disbursement in N.C. Suit ---------------------------------------------------------------- Red Hat, Inc. is awaiting a court decision on a final motion for disbursement of additional funds relating to its settlement of a consolidated shareholder lawsuit in North Carolina, according to the Company's January 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2011. In the summer of 2004, 14 class action lawsuits were filed against the Company and several of its former officers on behalf of investors who purchased the Company's securities during various periods from June 19, 2001, through July 13, 2004. All 14 lawsuits were filed in the U.S. District Court for the Eastern District of North Carolina. In each of the actions, plaintiffs sought to represent a class of purchasers of the Company's common stock during some or all of the period from June 19, 2001, through July 13, 2004. All of the claims arose in connection with the Company's announcement on July 13, 2004, that it would restate certain of its financial statements (the "Restatement"). One or more of the plaintiffs asserted that certain former officers (the "Individual Defendants") and the Company violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Securities Exchange Act"), and Rule l0b-5 thereunder by issuing the financial statements that the Company subsequently restated. One or more of the plaintiffs sought unspecified damages, interest, costs, attorneys' and experts' fees, an accounting of certain profits obtained by the Individual Defendants from trading in the Company's common stock, disgorgement by the Company's former chief executive officer and former chief financial officer of certain compensation and profits from trading in the Company's common stock pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 and other relief. As of September 8, 2004, all of these class action lawsuits were consolidated into a single action referenced as Civil Action No. 5:04-C V-473BR and titled In re Red Hat, Inc. Securities Litigation. On May 6, 2005, the plaintiffs filed an amended consolidated class action complaint. On July 29, 2005, the Company, on behalf of itself and the Individual Defendants, filed a motion to dismiss the action for failure to state a claim upon which relief may be granted. Also on that date, PricewaterhouseCoopers LLP ("PwC"), another defendant, filed a separate motion to dismiss. On May 12, 2006, the Court issued an order granting the motion to dismiss the Securities Exchange Act claims against several of the Individual Defendants, but denying the motion to dismiss the Securities Exchange Act claims against the Company, its former chief executive officer and former chief financial officer. The Court dismissed the claims under the Sarbanes-Oxley Act in their entirety, and also granted PwC's motion to dismiss. On November 6, 2006, the plaintiffs filed a motion for class certification. Subsequent to the filing of that motion, several plaintiffs withdrew as potential class representatives, and the Company opposed the certification of the remaining proposed class representatives. On May 11, 2007, the Court entered an order denying class certification and denying all other pending motions as moot. Thereafter, on July 13, 2007, Charles Gilbert filed a renewed motion for appointment as lead plaintiff and approval of selection of lead counsel. On November 13, 2007, the Court entered an Order allowing Gilbert's motion, appointing him lead plaintiff, adding him as a party plaintiff and appointing lead counsel. On January 14, 2008, Gilbert's counsel filed a motion to certify the action as a class action. On August 28, 2009, the Court entered an Order certifying the action as a class action, appointing Gilbert as the class representative, and defining the class as "all purchasers of the common stock of Red Hat, Inc. between December 17, 2002, and July 12, 2004, inclusive and who were damaged thereby," excluding Company insiders. On December 15, 2009, the Company announced that it had reached an agreement in principle to settle this matter, subject, among other matters, to completion of a final written settlement agreement and court approval. The Company recorded, for its quarter ended November 30, 2009, an estimated liability in the amount of $8.8 million for its portion of the proposed settlement. On March 29, 2010, counsel for the class filed a Motion for Preliminary Approval of the Settlement and, on June 11, 2010, a United States Magistrate Judge issued a Memorandum and Recommendation to the presiding judge that the motion be approved. On July 8, 2010, the presiding judge approved the motion and set the hearing for the final fairness hearing on December 7, 2010. The settlement was approved by the District Court in an order dated December 10, 2010. On March 30, 2011, the Court ordered the cases removed from the active docket. Since that time, the Court has approved a Motion for Disbursement of Funds and currently has before it a final motion for disbursement of additional funds. RED HAT: Awaits Ruling on Motion to Dismiss IPO Suit Appeal ----------------------------------------------------------- Red Hat, Inc. is awaiting a court decision on plaintiffs' motion to dismiss an appeal by a remaining objector-appellant in connection with the settlement of a consolidated initial public offering-related lawsuit, according to the Company's January 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2011. Commencing on or about March 2001, the Company and certain of its officers and directors were named as defendants in a series of purported class action lawsuits arising out of the Company's initial public offering and secondary offering. Approximately 310 other IPO issuers were named as defendants in similar class action complaints (together, the "IPO Allocation Actions"). On August 8, 2001, Chief Judge Michael Mukasey of the U.S. District Court for the Southern District of New York issued an order that transferred all of the IPO Allocation Actions, including the complaints involving the Company, to one judge for coordinated pre-trial proceedings (Case No. 21 MC 92). The plaintiffs contend that the defendants violated federal securities laws by issuing registration statements and prospectuses that contained materially false and misleading information and failed to disclose material information. Plaintiffs also challenge certain IPO allocation practices by underwriters and the lack of disclosure thereof in initial public offering documents. On April 19, 2002, plaintiffs filed amended complaints in each of the 310 consolidated actions, including the Red Hat action. The relief sought consists of unspecified damages, attorneys' and expert fees and other unspecified costs. In October of 2002, the individual director and officer defendants of the Company were dismissed from the case without prejudice. In October of 2004, the District Court certified a class in six of the 310 actions (the "focus cases") and noted that the decision is intended to provide strong guidance to all parties regarding class certification in the remaining cases. The Company's action is not one of the focus cases. On December 5, 2006, the U.S. Court of Appeals for the Second Circuit vacated the District Court's class certification with respect to the focus cases and remanded the matter for further consideration. In September 2007, discovery moved forward in the focus cases and plaintiff filed and amended complaints against the focus case issuer and underwriter defendants. Defendants in the focus cases filed motions to dismiss the second amended complaints in November 2007 and filed their oppositions to plaintiffs' motion for class certification in December 2007. The motions to dismiss in the focus cases were granted in part. On April 2, 2009, the plaintiffs' executive committee on behalf of the proposed class filed a motion for preliminary approval of a settlement agreement to resolve the lawsuit, to which the Company has consented and for which payments called for by the settlement agreement are to be paid by the defendant insurers. The trial court heard arguments on September 10, 2009, on the fairness of the settlement. In an opinion and order filed October 5, 2009, the trial court approved the class, granted plaintiffs' motion for approval of the settlement and directed the clerk of the court to close the action. Appeals have been filed and briefed before the Court of Appeals for the Second Circuit. On May 17, 2011, the Second Circuit issued a ruling on the two pending appeals, granting the motion to dismiss one of the appeals, and remanding the other appeal back to the District Court to determine procedural issues relating to the standing of the remaining objector-appellant. On August 25, 2011, the Court rejected the claims of that remaining objector-appellant. A notice of appeal of this decision was filed on September 26, 2011. On November 10, 2011, Plaintiffs moved to dismiss with prejudice the appeal by the remaining objector-appellant, and requested that the Court consider the motion on an expedited basis. The remaining objector-appellant filed a brief in opposition to Plaintiffs' motion to dismiss on November 4, 2011. ROLF'S PATISSERIE: Workers Mull Class Action Over Unpaid Wages -------------------------------------------------------------- Andrew Huff, writing for Gapers Block, reports that Rolf's Patisserie, one of the area's largest contract and wedding bakeries, abruptly closed on Dec. 10, citing "sharply higher operating costs, the cost of financing an expansion project and the inability to operationally meet the seasonal demands of our customers." Rolf's was the subject of two FDA recalls around Christmastime 2010, when cream-filled eclairs from the bakery caused more than 100 cases of food poisoning. The bakery's 136 employees learned of the closure via the company's Web site, after being sent home while the bakery went through an intensive weekend cleaning. According to a news release from Arise Chicago, the workers' last paychecks bounced when they tried to cash them. On Jan. 10 at 11:00 a.m., the workers plan to announce a class action lawsuit against Rolf's for unpaid wages and its failure to give 60 days notice of the closing, in violation of the Worker Adjustment and Retraining Notification (WARN) Act and the Illinois Wage Payment and Collection Act. SCHIFF NUTRITION: Faces Another Suit Over Schiff Move Free Ads -------------------------------------------------------------- Schiff Nutrition International, Inc., is facing another lawsuit concerning advertising statements relating to its Schiff Move Free Advanced products, according to the Company's January 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2011. The Company is engaged in litigation concerning advertising statements relating to its Schiff Move Free Advanced products. The first case was filed in May 2011 and is pending in the United States District Court for the Southern District of California. In this action, the plaintiff has brought two California statutory claims (under the Consumer Legal Remedies Act and the Unfair Competition Law) and a common law breach of express warranty claim, each of which alleges false or misleading advertising by the Company. The plaintiff seeks to certify a class, which would consist of all California residents who purchased Schiff Move Free Advanced within the class period. The plaintiff seeks actual damages, punitive damages and injunctive relief on behalf of this purported class. A second case was filed in December 2011 and is pending in the United States District Court for the Northern District of Illinois, Eastern Division. In this action, the plaintiff alleges violations of the Illinois Consumer Fraud Act and similar state consumer fraud statutes relating to the Company's advertising for Schiff Move Free Advanced, as well as personal injury and negligence claims. The plaintiff seeks to certify a class consisting of purchasers of Schiff Move Free Advanced within the applicable statute of limitations period or, alternatively, all Illinois residents who purchased these products within the applicable limitations period. The plaintiff seeks actual damages, medical monitoring and attorneys' fees. The Company disputes the allegations contained in these actions and intends to vigorously defend itself in the litigation. At this time, however, the Company says it is unable to determine the amount of loss, if any, from these matters. SOUNDBITE COMMUNICATIONS: To Indemnify GameStop in "Karayan" Suit ----------------------------------------------------------------- On January 6, 2012, SoundBite Communications, Inc. delivered a letter agreement to GameStop Corp. and GameStop Inc., in which it agreed to indemnify GameStop in relation to class action litigation entitled Karayan v. GameStop Corp. and GameStop Inc. The Company is not a named defendant or other party in the Litigation, according to the Company's January 9, 2012, Form 8-K filing with the U.S. Securities and Exchange Commission. When using SoundBite's proactive customer communications service for text messaging, companies provide for the use of "mobile termination" text messages, which are transmitted automatically when a company receives a text message indicating that the sender wishes to "opt out" of further text communications from the company. A mobile termination text message confirms that the company received the opt-out message and will not send any additional text messages. The transmission of mobile termination text messages is identified as a "best practice" in the U.S. Consumer Best Practices Manual of the Mobile Marketing Association, a leading global trade association, and is required by the terms of SoundBite's agreements with its data aggregators. Over the past several months, class action litigation has been initiated against a number of banks and retailers, including some of SoundBite's clients, alleging that mobile termination text messages violate the U.S. Telephone Consumer Protection Act, which seeks to protect the privacy interests of residential telephone subscribers. On October 21, 2011, SoundBite received a notice from GameStop requesting indemnification in connection with the Litigation. After investigation, the Company determined to deliver the letter agreement dated January 6, 2012 in order to, pursuant to the provisions of SoundBite's Master Pricing Agreement with GameStop, (a) indemnify GameStop for damages, losses and fees resulting from the aspects of the Litigation relating to mobile termination text messages and (b) confirm that SoundBite will take sole control over the defense, and any settlement, of those aspects of the Litigation. In addition to claims relating to mobile termination text messages, the Litigation also asserts claims alleging that GameStop is liable to certain of its customers because it failed to obtain prior express consent to the delivery of text messages. In the letter agreement, SoundBite reserved its rights concerning any argument that it may have as to its obligation to indemnify GameStop with respect to the aspects of the Litigation relating to the alleged lack of prior express consent. SoundBite says it intends to defend vigorously against the claims in the Litigation that allege GameStop violated provisions of the U.S. Telephone Consumer Protection Act in delivering mobile termination text messages. SoundBite is continuing to investigate this matter. At this time it is not possible for SoundBite to estimate the amount, if any, of damages, losses, fees and other expenses that it will incur as the result of its indemnification obligations to GameStop, but such an amount could have a material adverse effect on SoundBite's business, financial condition and operating results. Even if SoundBite succeeds in defending against the Litigation, it is likely to incur substantial costs and its management's attention will be diverted from its operations. SoundBite Communications, Inc. -- http://soundbite.com/-- is a global provider of cloud-based, multi-channel proactive customer communications solutions designed to transform the way organizations communicate throughout the customer lifecycle to build trusted, lifelong and profitable relationships. STATE OF OKLAHOMA: Foster Care Suit Legal Costs Nearly $7 Mil. -------------------------------------------------------------- Ginnie Graham, writing for Tulsa World, reports that a federal lawsuit filed against the Oklahoma Department of Human Services has cost the state nearly $7 million in legal costs, and that figure will continue to climb. The lawsuit was filed in February 2008 in the U.S. District Court for the Northern District of Oklahoma by Children's Rights, a New York-based nonprofit, on behalf of nine children in foster care. It was expanded in March 2009 to class-action on behalf of all current or future Oklahoma foster children. After the lawsuit was filed, DHS officials received approval from the Oklahoma Attorney General's Office to hire private defense attorneys. The expenditure was not specifically approved by the commission. DHS has spent nearly $7 million on outside attorneys. In October, the commission approved another $2 million for further legal costs. The next action will be for the court to schedule a fairness hearing, a requirement in class-action cases. Class members will provide testimony to the court, and a judge will rule on whether the settlement agreement is acceptable. The agreement states that the federal court will also determine how much more taxpayers will pay in legal costs to Children's Rights. For two decades, the child advocacy group has filed legal challenges in 15 states and jurisdictions seeking reforms in child-welfare systems. In all but two, judicial orders or consent decrees were enacted to force improvements in the public systems. Court fees received by the nonprofit have ranged from about $6 million to nearly $11 million. Children's Rights Executive Director Marcia Lowry said she does not know a range of potential court costs, but Oklahoma has entered more court entries than any case she tried. "The number of motions and interrogatories and amount of activity we have seen from the defendants far exceeds anything we've seen in any other case," Ms. Lowry said. The organization claims that Oklahoma foster children have been scalded in bath water, molested, beaten with tree switches and belts, and hit in the face. It argues that these abuses are systemic problems, not isolated incidents. The settlement sets out a panel of three monitors who will approve a plan for improved standards in 15 targeted areas. The federal court will retain jurisdiction, but the monitors will arbitrate disagreements. The state will not be under a judicial consent decree, but the monitors will operate with full authority from the court. Oklahoma Attorney General Scott Pruitt, who took office a year ago, criticized the amount of money spent by DHS on the defense, a move approved by former attorney general Drew Edmondson. After the agreement was approved on Jan. 4, Mr. Pruitt said he immediately got involved with the negotiations to minimize the cost and protect Oklahoma's interest in fiscal management and safety of children. "That decision was made before my election," Mr. Pruitt said. "In the event the state should have a case presented like this in the future, I will be zealous in making sure we represent the state and not continue to move that away to outside attorneys. It's the attorney general's responsibility to represent the state." SYMANTEC CORP: Consumers File Class Action in California -------------------------------------------------------- Jim Finkle, writing for Reuters, reports that a lawsuit filed against Symantec Corp. claims that the software maker seeks to persuade consumers to buy its products by scaring them with misleading information about the health of their computers. James Gross, a resident of the state of Washington, filed the suit in U.S. District Court in San Jose, California on Jan. 10, according to his attorneys. A copy of the complaint provided to Reuters by Mr. Gross's attorneys alleges that Symantec distributes trial versions of its products that scan a consumer's system, then invariably report that harmful errors, privacy risks and other problems exists on the PC, regardless of the real condition of the machine. A Symantec representative could not immediately comment on the lawsuit, which seeks class-action status. TROPICANA PRODUCTS: Sued for Falsely Advertising Orange Juice ------------------------------------------------------------- Courthouse News Service reports that a federal class action claims Tropicana falsely advertises its orange juice as "100% pure and natural," though it's actually "heavily processed and flavored." A copy of the Complaint in Lewis v. Tropicana Products, Inc., Case No. 12-cv-00049 (E.D. Calif.), is available at: http://www.courthousenews.com/2012/01/10/Tropicana.pdf The Plaintiff is represented by: L. Timothy Fisher, Esq. Sarah N. Westcot, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-mail: ltfisher@bursor.com swestcot@bursor.com - and - Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 369 Lexington Avenue, 10th Floor New York, NY 10017 Telephone: (212) 989-9113 E-mail: scott@bursor.com UNIVERSITY OF CALIFORNIA: Data Breach Class Action Won't Proceed ---------------------------------------------------------------- Daniel Riesenbach, writing for Daily Bruin, reports that a class- action lawsuit filed in December 2011 against the UC Board of Regents in response to the theft of personal information of UCLA Health System patients in early September 2011 has failed to move forward, according to the plaintiff's attorney. Brian Kabateck, a lead attorney from Los Angeles-based firm Kabateck Brown Kellner, said legal representation for the UC regents has been nonresponsive since the complaint was filed. The UCLA Health System reported in November 2011 that a hard drive containing more than 16,000 patients' information had been stolen from the home of a UCLA physician on Sept. 6, 2011. Social Security numbers and financial information were not among the documents stolen, but they did include first and last names and may have contained birth dates, medical record numbers, addresses and medical record information, according to the Health System's statement. The lawsuit claims the September incident was a violation of the California Confidentiality of Medical Information Act, in place to protect the privacy of patients' personal histories and information. The suit is calling for $1,000 in damages for each patient on the hard drive. The total cost of the suit for the Health System could amount to as much as $16 million, including the legal fees associated with the case. "We believe it was negligent for the hospital to allow (patient information) to be taken to a private residence, and not having a program in place to better protect their patients," said Mr. Kabateck. His firm filed the case with the Superior Court of Los Angeles County on Dec. 14, 2011. Though there is no evidence of misuse of the patients' information since the burglary, Mr. Kabateck said the case hinges on the negligence concerning the protection of digital information in the evolving medical world. He said he hopes the suit will force hospitals to be more careful. While storing information online is an increasingly common practice, and can certainly coexist with patient privacy rights, the potential for data breach is significantly higher than a paper-based system, said Tena Friery, research director at the Privacy Rights Clearinghouse, a national nonprofit organization focused on consumer privacy protection. She also cited a 2011 study revealing that 71 percent of health care organizations had suffered a data breach in the last year. Mr. Kabateck was also involved in a case concerning similar violations against Stanford University's Hospital and Clinics late last year, filed on behalf of 20,000 patients whose information was released onto a public Web site through a third party. That case was settled outside of court. That is an option Mr. Kabateck said he would not be opposed to with the UC regents, though there has been no dialogue between the two parties since the filing of the complaint. The current suit also follows in the wake of a separate agreement last July, in which the Health System paid a fine of $865,500 to settle potential Health Insurance Portability and Accountability Act privacy violations. That settlement was also in regards to improper disclosures of medical records. The UC Office of the President could not be reached for comment. A spokesman for the UCLA Health System declined to comment on the lawsuit, citing its policy on pending litigation. Mr. Kabateck can be reached at: Brian S. Kabateck, Esq. KABATECK BROWN KELLNER, LLP Engine Company No. 28 Building 644 South Figueroa Street Los Angeles, CA 90017 Telephone: (213) 217-5000 E-mail: bsk@kbklawyers.com UNIVERSITY OF CALIFORNIA: Lecturer Files Discrimination Suit ------------------------------------------------------------ San Francisco Chronicle reports that a UC Berkeley lecturer arrested on campus for allegedly soliciting lewd acts with an undercover officer has filed a federal class-action lawsuit, saying officers are engaging in discrimination because they never target suspects of the opposite sex. The plaintiff, identified only as John Doe in court documents, said he was arrested in October 2010 after he signaled, by tapping his toe, that he was interested in "intimate conduct" with someone in an adjacent stall of a campus bathroom. The suit did not elaborate, but campus police logs said the incident happened in a men's restroom in Dwinelle Hall. The person in the adjoining stall turned out to be UC Berkeley police Officer Reza Pourfarhani, working undercover. After Pourfarhani "tapped back indicating his interest in sexual conduct," the plaintiff sent him a note asking what he was interested in, the suit said. Ms. Pourfarhani sent back a note "with a smiley face" that read, "I could ask you the same thing," according to the suit filed earlier this month in U.S. District Court in San Francisco. After the officer suggested that they go outside, the two left the restroom, and the plaintiff was arrested for "loitering around a toilet intending to engage in or solicit a lewd act in public," the suit said. The plaintiff, a lecturer in the campus' college writing programs, acknowledged that he had been seeking sex but said his arrest "was false" because he had never solicited any act "intending to perform it in public." He said police had violated 14th Amendment's equal protection clause because officers of one sex never target those of the other. A judge dismissed the criminal charges against the plaintiff, said the suit, which seeks unspecified damages. It names the UC Board of Regents, UC Berkeley police, campus Police Chief Mitch Celaya, Pourfarhani and a second officer as defendants. The defendants have not responded in court. The lecturer's attorney, Bruce Nickerson, is seeking class-action status for the suit so he can represent other people who have been arrested by campus police in similar cases. Mr. Nickerson has filed similar suits in the past challenging arrests for public solicitations of sex, including one against San Rafael police that was later settled. Mr. Nickerson can be reached at: Bruce W. Nickerson, Esq. LAW OFFICE OF BRUCE W. NICKERSON Telephone: (650) 594-0195 E-mail: brucenic@pacbell.net VOXX INTERNATIONAL: RF Radiation-Related MDL Remains Pending ------------------------------------------------------------ A multidistrict litigation against suppliers, manufacturers and distributors of hand-held wireless telephones, including VOXX International Corporation, remains pending, according to the Company's January 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2011. Certain consolidated class actions transferred to a Multi-District Litigation Panel of the United States District Court of the District of Maryland against the Company and other suppliers, manufacturers and distributors of hand-held wireless telephones alleging damages relating to exposure to radio frequency radiation from hand-held wireless telephones are still pending. The Company says no assurances regarding the outcome of this matter can be given, as the Company is unable to assess the degree of probability of an unfavorable outcome or estimated loss or liability, if any. Accordingly, no estimated loss has been recorded for the case. WASHINGTON MUTUAL: Judge Certifies Home Equity Class Action ----------------------------------------------------------- Nick McCann at Courthouse News Service reports that a federal judge certified a class led by a Cupertino couple who say Washington Mutual and JPMorgan Chase suspended and reduced credit limits on their home equity credit lines without valid reasons. Jeffrey and Jenifer Schulken sued Washington Mutual Bank and JPMorgan Chase in 2009, alleging Truth in Lending Act violations, unfair competition and other claims. The Schulkens say Chase informed them by letter that their home equity credit lines would be suspended because they did not have enough monthly income to satisfy their debts. The couple say the $11,200 monthly income stated by the banks was "inaccurate," that they had never "provided such an inflated income figure to WaMu, and that if the Schulkens' file indicated such an income, then WaMu had intentionally misrepresented their income." Chase, which acquired Washington Mutual in 2008, tried to dismiss the complaint four times, and the Schulkens amended the complaint five times. The fifth amended complaint sought to certify two classes of borrowers, an "inability to verify" class and a "stated income" class. The "inability to verify" class would be borrowers whose home equity credit lines were blocked because they did not provide Chase with tax returns or pay stubs; the "stated income" class would be borrowers whose credit lines were blocked because Chase found a "material adverse change in their finances." U.S. District Judge Lucy Koh partly certified the action in a 23- page order. Judge Koh certified the "inability to verify" class, and a subclass of borrowers whose credit lines were suspended because Chase could not verify their financial circumstances. Judge Koh amended the plaintiffs' class definition to include "only those members who signed contracts that (1) arise from heritage WaMu customers, and (2) state that the borrower must provide, upon the lender's request, 'a current financial statement, new credit application, or both.'" Judge Koh named the Schulkens as class representatives, and found that the Edelson McGuire law firm can litigate the case. She set a case management conference for Feb. 15. A copy of the Order Granting in Part and Denying in Part Motion to Certify Class Action in Schulken, et al. v. Washington Mutual Bank, et al., Case No. 09-cv-02708 (N.D. Calif.), is available at: http://www.courthousenews.com/2012/01/10/WaMuClass.pdf ZEP INC: May Enter Into More Talks to Settle California Suit ------------------------------------------------------------ Zep Inc. said in its January 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2011, that it may enter into additional discussions regarding settlement of a class action lawsuit pending in California. The Company is a defendant in Britto and Cowan v. Zep Inc. and Acuity Specialty Products, Inc., a lawsuit that commenced in December 2010 in the Superior Court in Alameda County, California. The plaintiffs, who were formerly employed as sales representatives by Acuity Specialty Products, Inc., a subsidiary of the Company ("Acuity"), brought the lawsuit on behalf of themselves and on behalf of a putative class that includes all of Acuity's current sales representatives based in California and all former sales representatives based in California who were employed by Acuity on December 30, 2006, or thereafter. The putative class consists of 141 members, including 30 current sales representatives and 111 former sales representatives. The plaintiffs allege that Acuity failed to reimburse the putative class members for work-related expenses and failed to pay the putative class members their wages by assessing unlawful deductions from commissions. The Plaintiffs are also seeking to recover statutory and/or civil penalties pursuant to the California Labor Private Attorney General Act. The Court has not yet considered whether to certify the putative class. The Company believes it has substantial factual and legal defenses to the claims made in the lawsuit, and it intends to assert the defenses aggressively. In May 2011, the Company made settlement offers to all members of the putative class, other than the named plaintiffs, who were then currently employed by Acuity in an effort to reduce the expenses of litigating the case and to eliminate any potential adverse impact to ongoing selling efforts. Approximately 30 of the offerees accepted the settlement offer. In September 2011, the Company participated in an unsuccessful, non-binding mediation process in an attempt to settle the lawsuit. In October 2011, the Company made a second offer of settlement to the members of the putative class who are currently employed and who did not accept the first settlement offer, as well as a first settlement offer to all members of the putative class who are former employees of Acuity. The Company subsequently withdrew the offer to members of the putative class that the Company currently employs. As of December 15, 2011, approximately 59 members of the putative class who are former employees have accepted a settlement offer. The Company says it may enter into additional discussions regarding settlement of the lawsuit with the named plaintiffs and other members of the putative class, and it may enter into settlement agreements, if it believes settlement is in the best interest of its shareholders. During the year ended August 31, 2011, the Company established a $1.8 million accrual, which, based on the facts known as of the time of filing of this Quarterly Report on Form 10-Q, continues to represent the Company's best estimate of the probable loss related to this litigation. If the Company is not successful in its defense against the claims asserted in the lawsuit and if there is an adverse verdict on the merits from which there is no successful appeal, or in the event of a negotiated settlement of the litigation, the resulting liability could be material to the Company's financial condition or results of operations. However, because of the uncertainty of the outcome of the lawsuit, including whether the class will be certified and the amount of damages, if any, any class member may be able to prove, and because the Company's liability, if any, arising from the litigation, including the size of any damages awarded if plaintiffs are successful in the litigation or any negotiated settlement, could vary widely, the Company cannot estimate the reasonably possible losses or range of loss that may arise from the litigation in excess of the amounts established. The Company continues to anticipate incurring approximately $1.2 million of costs associated with legal defense fees during the first half of fiscal year 2012 in connection with this matter. Asbestos Litigation ASBESTOS UPDATE: Recused Miss. Judge Vacates $322-Mil. Verdict -------------------------------------------------------------- Holbrook Mohr at The Associated Press reports that a Mississippi judge has thrown out a $322 million lawsuit verdict that had been hailed as the largest asbestos award for a single plaintiff in U.S. history. The case began to unravel last year after defense lawyers asked the Mississippi Supreme Court to remove the presiding judge because he alle0gedly neglected to disclose that his parents had been involved in similar asbestos litigation against one of the same companies. A specially appointed judge, William Coleman, issued an order vacating the verdict and award on Dec. 27. The case from Smith County, Mississippi, involved a lawsuit filed by Thomas Brown, who claimed he had inhaled asbestos dust while mixing drilling mud sold and manufactured by Chevron Phillips Chemical Co. and Union Carbide Corporation. Union Carbide spokesman Scot Wheeler said in an email to The Associated Press that the company was pleased with the verdict because it "was outrageous and completely unsupported by the facts and applicable law." "Union Carbide will continue to vigorously defend all asbestos cases brought against the company," he said. Wheeler said a retrial has been set for April but the venue for the trial has not been determined. Brown, who was 48 at the time of the award in May, said he was diagnosed with asbestosis and required to take oxygen 24-hours a day. The jury awarded Brown $300 million in punitive damages and $22 million in actual damages. Brown's lawyer, Allen Hossley -- allen@hossleyembry.com -- said it was the biggest asbestos award ever to a single plaintiff. Hossley, a Dallas attorney, didn't immediately respond to a message requesting comment. Union Carbide first asked Circuit Judge Eddie Bowen to toss out verdict not long after the record award was handed down. They also asked Bowen to step down from the case. When Bowen didn't respond, Union Carbide went to the Supreme Court and asked the justices to remove him. Union Carbide claimed Bowen was a practicing attorney when his father and mother sued Union Carbide, seeking $1 million for emotional distress. The company said that after the trial, it "learned that Judge Bowen's father had filed two asbestos lawsuits, one of which remains pending; and that both Judge Bowen's father and mother had settled asbestos claims with UCC and other defendants based on a diagnosis of asbestosis -- which is the same disease claimed in this case." The earliest lawsuit involving the judge's father dated back to 1989 and was filed in Jackson County on the Mississippi Gulf Coast. Union Carbide said in its motion that Bowen's bias and prejudice against Union Carbide and Chevron Phillips were clear from his rulings, comments in front of the jury, and his coaching of Brown's attorneys in questioning witnesses. The Mississippi Supreme Court granted Union Carbide's request to remove Bowen in October. Coleman, who was appointed to take over, said in his order that he was vacating "the judgment, the underlying jury verdict, and all rulings and orders of the former trial judge." The company is a wholly owned subsidiary of The Dow Chemical Company, according to its website, with over 2,400 employees. Its corporate center is in Houston and it has other locations in Texas, New Jersey, Louisiana and West Virginia. Chevron Phillips Chemical Company is based in The Woodlands, Texas. ASBESTOS UPDATE: $5.5MM Verdict Against Honeywell Reversed ---------------------------------------------------------- Steve Korris of The Madison/St. Clair Record reports that five months after the Fourth District appellate judges reversed a McLean County jury's asbestos conspiracy verdict against Honeywell International, another panel of the same court tossed out another conspiracy verdict against Honeywell. On Dec. 23, three judges found Circuit Judge Scott Drazewski should have rejected a jury's $5.5 million award to three widows. "The record contains no evidence defendant entered into an agreement with any other corporation to falsely assert asbestos was safe or to keep quiet about the dangers of asbestos, although the record contains evidence defendant, on its own, did those things," Justice James Knecht wrote. "The evidence must be clear and convincing if a conspiracy is to be proved solely by circumstantial evidence," Justice Knecht wrote. Justice Thomas Appleton, author of a July opinion that greatly reduced the range of conspiracy expert Barry Castleman, concurred in the December opinion. Justice Robert Steigmann also concurred. As Appleton had done in July, Knecht knocked down precedents that allowed lawyer James Walker to stage a series of sensational conspiracy trials. Walker blames lung diseases on Honeywell as successor to brake maker Bendix, one of the companies in the conspiracy. Walker also pursues conspiracy claims against Owens-Illinois and against Pneumo-Abex as successor to American Brake and Block. The widows, whose husbands worked at Unarco asbestos plant in Bloomington, had all won separate jury verdicts years ago. Honeywell secured new trials at the Fourth District, and Drazewski consolidated the three cases for a single trial in 2009. Jurors awarded $2,401,000 to Doris Dukes as widow of Merlon Dukes, $1,860,000 to Ruth Watkins as widow of John Watkins, and $1,303,000 to Judy Blessing as widow of Robert Blessing. Honeywell appealed again to the Fourth District, where a panel had already taken up an appeal of a $2.5 million verdict against Honeywell and Pneumo-Abex. In that case, Drazewski reduced Juanita Rodarmel's compensatory damages from $2 million to $183,333, after subtracting settlements of other defendants. The decision in that case, in July, left no apparent room for Wylder and Castleman to carry any more conspiracy cases to trial. Appleton wrote that companies didn't have to publish a report on tumors in mice 60 years ago, because the author told them it meant nothing. "It cannot be unlawful to hide information that is devoid of significance," he wrote. Justices John McCullough and John Turner concurred. The panel on the triple trial adopted the July decision whole. "We need not repeat the court's reasoning here," Knecht wrote. "A quick summary will suffice," Knecht added. "The fact Johns-Manville was the exclusive supplier of asbestos fiber to Bendix for many decades does not support the inference Bendix and Johns-Manville entered into an agreement to conceal the dangers of asbestos," Knecht wrote. Knecht wrote that conspiracy can't be inferred from membership in a trade organization. Knecht wrote that implying conspiracy from a shared director would be speculation. "We note the same evidence discussed in Rodarmel was introduced for the same purposes in this case and is equally unsatisfactory to prove a civil conspiracy in this case," Knecht wrote. "That evidence is as consistent with innocence as with guilt," he added. He also added that it wasn't unusual for companies in the brake industry to do business with each other. "They were all in the same industry at the same time and the fact they did business with each other on occasion should not raise an inference of a wrongful conspiracy as it could just as easily raise the inference of ordinary commerce between companies in the same industry," Knecht wrote. A $90 million verdict, the biggest in 30 years of McLean County asbestos litigation, remains pending at the Fourth District. ASBESTOS UPDATE: Baron & Budd Wins $8.4MM Verdict Against Ashland ----------------------------------------------------------------- A Dallas County jury recently awarded an $8.4 million verdict to a mesothelioma cancer patient's widow after finding Ashland Inc. subsidiary, Hercules Inc., liable for the patient's mesothelioma, a deadly cancer of the lining of the lung caused by asbestos exposure. The verdict is believed to be the first asbestos cancer verdict reached against Hercules for exposure at a Dow Chemical refinery and could set a precedent for similar results. The mesothelioma lawsuit was brought on behalf of the late John Gensler, and his widow Martha Gensler. Attorneys John Langdoc -- jlangdoc@baronbudd.com -- and Alana Kalantzakis -- akalantzakis@baronbudd.com -- of the mesothelioma law firm of Baron and Budd represented the Genslers at trial with the Hon. Judge Martin Hoffman presiding. Hercules is no stranger to fines and other liabilities due to its manufacture of carcinogenic products. The company has been found responsible for exposing military veterans to carcinogens including Agent Orange, which Hercules manufactured. Hercules has also paid out hundreds of millions of dollars in Environmental Protection Agency (EPA) fines related to Superfund clean-up of harmful dioxins and other herbicides. Even after the government begin requiring warning labels for asbestos-containing products in 1971, Hercules actively chose not to place the warning labels on its products. Langdoc and Kalantzakis proved during the three-week trial that Hercules knew it was exposing Gensler and other workers to dangerous asbestos pipe products during the late 1960s and early 1970s and did nothing to warn workers. "Hercules has a history of corporate misconduct and environmental contamination," said Langdoc. "The company insisted on using the most carcinogenic type of asbestos available. While other asbestos pipes contained approximately 3 to 5 percent asbestos, Hercules' asbestos pipes contained 50% asbestos, an amount found to be extremely dangerous to workers and the environment." Baron and Budd has been defending the rights of asbestos cancer sufferers and their families for more than 30 years and was one of the first law firms to successfully litigate a mesothelioma lawsuit. The firm has achieved numerous landmark mesothelioma verdicts throughout its history, including a $55 million verdict in 2001, one of the largest in the state of Texas, and a $20 million mesothelioma verdict in California. About Baron & Budd, P.C. The national mesothelioma law firm of Baron & Budd, P.C. has a more than 30-year history of "Protecting What's Right" for asbestos sufferers and their families. As one of the first law firms to successfully litigate an asbestos lawsuit, Baron & Budd continues to actively represent veterans, industry workers and others who are suffering as a result of exposure to asbestos. Baron & Budd achieved the largest mesothelioma verdict ever in the state of Texas, a $55 million verdict for an asbestos sufferer and his family in El Paso, Texas. Contact Baron and Budd at (866) 855-1229 for additional information on mesothelioma treatments, mesothelioma cancer doctors and treatment centers and mesothelioma attorneys. ASBESTOS UPDATE: Union Pacific Faces 4 Separate Asbestos Lawsuits ----------------------------------------------------------------- Michelle Keahey of The Southeast Texas Record reports that Houston lawyer John G. Zgourides of the law firm Sammons & Berry has filed four separate lawsuits against Union Pacific regarding alleged asbestos exposure of several railroad workers. The workers claim that they were exposed to asbestos-containing materials and as a result, have been diagnosed with asbestos- related lung diseases. The plaintiffs are John A. Saunders, Mark W. Saunders, Edgar D. Weaver, Robert Donnell, Jesse Ford Jr., Lee H. Bell, Earnest E. Bush, John A. Hollins, Alveron Jones Sr., George B. Currington, Johnny L. Davis, Larry J. Kirkpatrick, William S. Pickering and Charles R. Monroe. Three lawsuits were filed on Dec. 14 in federal court in Tyler and the fourth was filed in federal court in Beaumont. The plaintiffs worked for Southern Pacific Transportation Co., St. Louis Southwestern Railway Co., Missouri Pacific Railroad Co., the Missouri-Kansas-Texas Railroad Co. and the Chicago & Northwestern Transportation Co. The men worked as trainmen, engineers or car- men sometime from 1960 until 2006. Union Pacific is accused of negligence under the Federal Employers' Liability Act for using asbestos-containing materials for decades after becoming aware of hazardous and harmful nature of the materials, for failing to inspect its equipment for the presence of asbestos-containing material, and for failing to remove asbestos-containing material from its equipment. The defendant is also accused of negligence for failing to warn of the presence of asbestos-containing material, failing to warn of the synergistic effect between smoking and asbestos exposure, failing to properly train employees, failing to provide proper respirators, failing to conduct air monitoring, failing to provide comprehensive asbestos medical examinations, failing to medically monitor the plaintiffs and for violating its own policies regarding the asbestos materials. The plaintiffs are asking for an award of damages for medical expenses, mental anguish, physical pain and suffering, fear of cancer, physical impairment, court costs and interest. Houston attorney J. Kirkland Sammons of Sammons & Berry is also representing the plaintiffs. Jury trial is requested. U.S. District Judge Michael H. Schneider is assigned to the cases. Case Numbers 6:11-cv-00669; 6:11-cv-00670; 6:11-cv-00671; and 1:11-cv-00718 ASBESTOS UPDATE: Aristech Chem and 198 Others Face Lawsuit ---------------------------------------------------------- Kyla Asbury at The West Virginia Records reports that a man is suing 199 companies he claims are responsible for his father's lung injury and death. Larry D. Westfall was a member of the Laborers Union Local No. 639 and worked throughout West Virginia and elsewhere, according to a complaint filed Dec. 7 in Kanawha Circuit Court. Steven D. Westfall claims his father was diagnosed with asbestosis and mesothelioma, from which he died. The defendants failed to exercise reasonable care to warn Larry Westfall of the danger to which he was exposed by use of the asbestos-containing products, according to the suit. Steven Westfall claims the defendants failed to inform his father of what would be safe and sufficient apparel for a person who was exposed to or used the asbestos-containing products. The defendants also failed to inform Larry Westfall of what would be safe and proper methods of handling and using the asbestos- containing products, according to the suit. Steven Westfall is seeking compensatory and punitive damages. He is being represented by David P. Chervenick, Bruce E. Mattock, Leif J. Ocheltree and Scott S. Segal. The case has been assigned to a visiting judge. The 199 defendants named in the suit are 20th Century Glove Corporation of Texas; 4520 Corp., Inc.; Air & Liquid Systems Corporation; Ajax Magnethermic Corporation; AK Steel Corporation; Alliance Machine Company; Allied Glove Corporation; American Optical Corporation; Ametek, Inc.; Anderson Greenwood & Co.; Aristech Chemical Corporation; Armstrong International, Inc.; Armstrong Pumps, Inc.; Ashland, Inc.; Atlas Industries, Inc.; Aurora Pump Company; Bayer Corporation; Bayer Cropscience, LP; Beazer East, Inc.; Bechtel Corporation; Borg-Warner Corporation; BP Amoco Chemical Company; BP Products North America, Inc.; Brand Insulations, Inc.; Burnham Holdings, Inc.; Cabot Corporation; Cameron International Corporation; Canadianoxy Offshore Production Company; Cashco, Inc.; Catalytic Construction Company; CBS Corporation; Certainteed Corporation; Chevron U.S.A., Inc.; Cleaver-Brooks, Inc.; Columbia Paint Corp.; Columbian Chemicals Company; Columbus McKinnon Corporation; Cooper Industries, Inc.; Copes-Vulcan, Inc.; Coppus Turbines; Corbesco, Inc.; Crane Company, Inc.; Crown, Cork & Seal Company (USA), Inc.; Cyprus Amax Minerals Company; Dana Corporation; Degussa Corporation; DeZurik, Inc.; Dow Chemical Company; Dravo Corporation; E.I. Du Pont De Nemours & Company; Eaton Corporation; Eichleay Corporation; the Fairbanks Company; Fairmont Supply Company; Flowserve U.S., Inc., and its Byron Jackson Pump Division; Flowserve U.S., Inc., f/k/a Durametallic Corp.; Flowserve U.S., Inc., a/k/a Flowserve FSD Corporation; Flowserve U.S., Inc., as successor to Edward Valves, Inc.; Flowserve U.S., Inc., as successor to Valtek International; Flsmidth, Inc.; Flsmidth Dorr-Oliver Eimco, Inc.; Flsmidth Salt Lake City, Inc.; Fluor Constructors International; FMC Corporation; Foseco, Inc.; Foster Wheeler, LLC; the Gage Company; Gardner Denver, Inc.; General Electric Company; General Refractories Company; Goodrich Corporation; the Goodyear Tire & Rubber Company; Goulds Pumps, Inc.; Greene Tweed & Co.; Grinnell, LLC; Gulf Oil Corporation; H.E. Neumann Company; Hedman Mines, LTD.; Hercules Chemical Company, Inc.; Hinchliffe & Keener, Inc.; Hoechst Celanese Chemical Group, Inc.; Honeywell International, Inc.; Howden North America, Inc.; Huntington Alloys Corporation; Huntsman International, LLC; IU North America, Inc.; IMO Industries, Inc.; Industrial Holdings Corporation; Ingersoll-Rand Company; Insul Company, Inc.; ITT Corporation; J.H. France Refractories Company; Jabo Supply Corporation; Jacobs Engineering Group, Inc.; John Crane, Inc.; Joseph T. Ryerson & Son, Inc.; Joy Technologies, Inc.; Katy Industries, Inc.; Kentile Floors, Inc.; Lockheed Martin Corporation; M.S. Jacobs & Associates, Inc.; Magnetek, Inc.; Mallinckrodt, LLC; Manitowoc Company, Inc.; McCann Shields Paint Company; McCarls, Inc.; McJunkin Redman Corporation; Meadwestvaco Corporation; Metropolitan Life Insurance Company; Milton Roy Company; Mine Safety Appliance, Inc.; Minnotte Contracting Corporation; Mobil Corporation; Monongahela Power Company; Morgan Engineering Systems, Inc.; Mueller Steam Specialty; Nagle Pumps, Inc.; National Services Industries, Inc.; Nitro Industrial Coverings, Inc.; O.C. Keckley Company; Occidental Chemical Corporation; Oglebay Norton Company; Osram Sylvania, Inc.; Owens-Illinois, Inc.; P&H Mining Equipment, Inc.; Parker- Hannifin Corp.; Parker-Hannifin Corporation; Peerless Industries, Inc.; Pennzoil-Quaker State Company; Pfaff and Smith Builders Supply Company; Pharmacia Corporation; Plotkin Brothers Supply, LLP; Pneumo Abex Corporation; Potomac Edison Company; Power Piping Company; Powermaster Pacific Products; PPG Industries, Inc.; Premier Refractories, Inc.; Rchnewcoil, LLC; Reading Crane; Research-Cottrell, Inc.; Rhone-Poulenc AG Company, Inc.; Riley Power, Inc.; Robinson Fans, Inc.; Rockwell Automation, Inc.; Roper Pump Company; Rust Constructors, Inc.; Rust Engineering & Construction, Inc.; Safety First Industries, Inc.; the Sager Corporation; Saint-Gobain Abrasives, Inc.; Schneider Electric USA, Inc.; Seco/Warwick Corporation; Seegott, Inc.; Selkirk Corp.; Shell Oil Company; Simakas Company, Inc.; S.P. Kinney Engineers, Inc.; Spirax Sarco, Inc.; SPX Cooling Technologies, Inc.; Sterling Fluid Systems (USA), LLC; Sullair Corporation; Sunbeam Products, Inc.; Sundyne Corporation; SVI Corporation; Taco, Inc.; Tasco Insulation, Inc.; Team Industrial Services, Inc.; Townsend & Bottum, Inc.; Trane U.S., Inc.; Trans-Pumps, Inc.; Trans-Pumps, Inc. of Pittsburgh; UB West Virginia, Inc.; Unifrax Corporation; Union Carbide Corporation; United Conveyor Corporation; United States Steel Corporation; Universal Refractories Corporation; Viacom, Inc.; Viking Pump, Inc.; Vimasco Corporation; Virginia Electric and Power Company; Waco, Inc.; Warren Pumps, Inc.; Washington Group International; Waste Management, Inc.; Watson McDaniel Company; Weil-McLain Company; West Penn Power Company; Westinghouse Airbrake and/or Wabco; Whiting Corporation; the William Powell Company; WTI Rust Holdings, Inc.; Wyeth Holdings Corporation; Yarway Corporation; the Young Group, LTD.; and Zurn Industries, LLC. Kanawha Circuit Court case number: 11-C-2181 ASBESTOS UPDATE: Rubbles at Joplin Tornado Aftermath To Be Tested ------------------------------------------------------------------ Pat Guth, writing for Mesothelioma News, relates that the May 22, 2011 tornado that touched down in Joplin, Mo., claimed both lives and buildings, and now the city is finding it necessary to address the fate of some 118 houses that suffered severe damaged but have not been razed by the owners. Before demolition can occur, however, asbestos must be removed. According to an article in The Joplin Globe, the 118 houses in question must all undergo thorough asbestos inspections before the wrecking ball appears. Joplin's Assistant Director of Public Works, Jack Schaller, told the press that the homes will be addressed in groups of 20, with recently-hired asbestos inspectors examining each house in the group before demolition begins. It will take about 30 days for each group to be inspected and for reports to be filed as to the presence of toxic asbestos material. Because the houses have been damaged, the asbestos materials are especially dangerous as they most likely are in poor condition, notes the EPA. When asbestos is damaged or becomes "friable", it can release tiny, sharp fibers into the air where they can be inhaled by anyone working, living, or playing in the vicinity. Because most of the homes in question were built prior to about 1977, when guidelines were issued about any new uses of asbestos, a large portion of them are expected to contain asbestos materials. Asbestos was used liberally in the manufacture of such construction-related items as pipe insulation, floor tiles, adhesives, soundproofing material, cement, and more. Experts have deemed that even a small amount of asbestos exposure is unsafe and may result in the development of diseases like mesothelioma later in life. Allowing the homes to be demolished without removing dangerous asbestos material would be a violation of the federal Clean Air Act. Schaller added that the inspections are regulated by the Missouri Department of Health and that requirements in regards to removal are set forth by the Missouri Department of Natural Resources. ASBESTOS UPDATE: Geelong Sheds Closed Due to Airborne Toxic Fibers ------------------------------------------------------------------ Cameron Best of the Geelong Advertiser reports that two large cargo sheds at Corio Quay have been shut down because of an airborne asbestos scare. The 127m-long south shed and 91m north number two shed were both deemed off limits by the port's operator, GeelongPort, with workers at the facility advised they would remain closed "until further notice". WorkSafe officers descended on the facility on Dec. 22 following concerns the sheds had airborne asbestos dust that had fallen to the ground from roofing structures. The two sheds are operated by two different companies. A hygenist company took dust samples from the sheds and subsequent tests confirmed the dust contained asbestos. Work has resumed in one shed, with air monitoring results failing to find any levels to be above the "limit of detection". The second shed remains closed but work will resume around the facility. A licensed asbestos removalist has been called in to clean the closed shed of any settled dust that may contain asbestos. Geelong's port is the largest regional port in Victoria, with the century-old Corio Quay used mainly for woodchip and bulk cargoes. The sheds are close to GeelongPort's head office and the dry bulk woodchip loader the result of a $25 million expansion of the Corio Quay north wharf for woodchip exports in 2010. The facility is also home to Australian Customs and Border Protection Service and the Australian Quarantine Inspection Service. A Customs spokesperson said the shed shut-down was having no effect on normal customs operations. GeelongPort business manager John Murray was unavailable for comment as of this report. ASBESTOS UPDATE: Israel Environment Head Doubles Abatement Budget ----------------------------------------------------------------- Sharon Udasin of The Jerusalem Post reports Environmental Protection Minister Gilad Erdan (Likud) has doubled his ministry's budget for asbestos removal to NIS40 million per year in an attempt to eradicate within the next two years the material that plagues the lungs of northern residents. Erdan made the decision after touring Nahariya with its mayor on Jan. 3, 2012, where he witnessed firsthand the process and work that goes into removing the dangerous substance, his office said. "Every day that we advance the project, a human life is saved, and therefore, we doubled the budget designated for this year in order to double the pace of executing the hazard's removal," Erdan said in a statement released by his office. "This is a life-saving project that is undertaken through the leading professional standards in the world." The Environmental Protection Ministry first began its asbestos removal program last April in the Western Galilee, in which asbestos industrial waste is scattered over about 150,000 cubic meters of land, originating from the Etanit factory in Nahariya. Some of the waste had been used as bases for roads and paths in the region, many of which are now crumbling with asbestos exposed on their surfaces. Removing all of the asbestos from the area is expected to cost about NIS300 million, and would originally encompass about five years. In addition to funds from the Environmental Protection Ministry, the project also receives financing from the local authorities as well as from the Etanit company, which is obliged by the April 2011 Asbestos Hazards Prevention Law to pay NIS150,000 of the costs, according to the ministry. Doubling the budget coming from the Environment Ministry is expected to shorten the duration of the project, with completion achieved as early as 2014. The Etanit portion of the funding is not guaranteed, however, as the company has filed a petition to the High Court of Justice about the matter, the ministry said. But during Erdan's meetings with local residents and mayors, he also requested that Etanit co-owner Mickey Federman, who also owns the Dan hotel chain, remove his petition and abide by the asbestos law. Since the inception of the law, the ministry has overseen asbestos eradication at 36 sites -- 14.14 million cubic meters worth of waste -- at a total cost of NIS30 million, the office said. ASBESTOS UPDATE: Everett Firemen Get Free lifetime Health Monitor ----------------------------------------------------------------- Michael Whitney, writing for the Tribune Snohomish County News, reports the city settled a multimillion-dollar lawsuit that accused the city of allowing firefighters to train in a house containing asbestos. The city agreed to pay for the health costs to monitor the firefighters for asbestos for the rest of their lives. In 2007, about 50 firefighters trained in old houses, which consisted of cutting holes and punching in ceilings that contained asbestos. The city owned the houses and at least one fire official knew about the asbestos, but nobody stopped the trainings from happening at these houses. The union sued in 2010. The City Council signed off on settling the lawsuit last month by agreeing to give the participating firefighters lifetime asbestos monitoring. That's exactly what the union asked for, union president Paul Gagnon said. He's perplexed the city fought the firefighters. "Mistakes happen, it's just how you handle it," Gagnon said. The city "swept it under the rug (and said) it was (union) members' fault." The lifetime monitoring will cost $15,000 next year. The city offered monitoring for 28 firefighters involved in the training exercises. The union wanted all of the firefighters covered and sued the city for $9 million. The $9 million was compiled on a per-head basis. The union's attorney came up with the figure, Gagnon said. The Fire Department now has two people trained in identifying asbestos. ASBESTOS UPDATE: School Opts Abatement Costs Over Future Lawsuits ----------------------------------------------------------------- Mesothelioma.net reports that school officials at the Newton North High School in Massachusetts expected to pay a hefty sum toward asbestos abatement costs when it demolished the old structure to build a newer campus. What they didn't expect was exactly how much the abatement would cost them -- almost $14 million. That's nearly double the budget the school originally had for asbestos abatement costs. In fact, with the costs of asbestos removal at the school included, it makes the new Newton North High School the most expensive high school ever built in Massachusetts, which is not making many residents and tax payers very happy. The $14 million bill came as the result of having to deconstruct the old high school brick by brick to avoid polluting the air with dangerous asbestos fibers that are known to cause asbestosis, lung cancer and mesothelioma. A multitude of asbestos-related lawsuits, along with pressure from state and federal environmental standards, persuaded the district to take extreme precaution with the project. Although many residents are outraged at the steep costs associated with asbestos abatement at the Newton North High School, parents, teachers and school officials are relieved and comforted knowing that the building was properly abated and no threats of asbestos contamination remain. Despite the price of the abatement, it is possible that the millions spent in abatement costs could pale in comparison to possible future lawsuits from those exposed to the mineral due to improper, although more affordable, asbestos removal from the building. Asbestos is a fire-retardant, naturally occurring mineral that was used heavily in construction between the 1950s and 1970s, despite confirmations that the mineral caused serious health conditions and even fatalities in those exposed to it. Although asbestos is no longer used in to build homes, schools and other structures, many buildings still contain the mineral. The Environmental Protection Agency requires professional handling and abatement of asbestos in those buildings before they can be demolished in order to avoid causing workers and building occupants to develop potentially deadly diseases. ASBESTOS UPDATE: Lac d'Amiante and Jeffrey May Yet Reopen in 2012 ----------------------------------------------------------------- Tim Povtak at The Mesothelioma Center reports that one of the last two asbestos mines in Canada declared bankruptcy recently, but the threat of a future reopening has not disappeared. The president of LAB Chrysotile, which operates the Lac d'Amiante mine in Quebec, told the Montreal Gazette this week that filing for bankruptcy was a way to save the 350 jobs and eventually restart production. "I can't discuss the financial details, but our ultimate goal is to restart operations under a new structure at the former production rate," Simon Dupere said. "The company is no long financially viable in its present form." The Lac d'Amiante mine, which halted production back in October, produced chrysotile asbestos fiber and exporting most of it for more than 50 years. Much of the exportation in recent years went to Asia, the Middle East and North Africa. The bankruptcy filing, which was detailed by the Gazette, listed assets of $3.36 million and liabilities of $50.1 million. Early in 2011, the company had listed annual revenues at $50 million. The shutdown at Lac d'Amiante last fall closely followed the suspension of operation at the nearby Jeffrey Mine, which together halted all production of asbestos in Canada for the first time in 130 years. Owners of the Jeffrey mine already have said they want to reopen, awaiting a government-backed loan guarantee. Both mines possibly could be reopened late in 2012. "We have a structural problem. We have a problem with fixed costs and this will be resolved with the (bankruptcy filing)," Dupere told The Canadian Press. Now we will talk to everyone involved, and we will see how we're going forward and how we'll revive the project." The reopening of either mine in the future is expected to be met with considerable protest from critics around the world, which include health care experts and activists who know the dangers that come with the mining. Asbestos, which has been banned in more than 50 countries, is the cause of mesothelioma cancer, asbestosis and a variety of respiratory illnesses. Neither Canada, nor the United States has banned asbestos, although its use has been dramatically reduced and tightly regulated. The World Health Organization has estimated that up to 100,000 people die each year from occupational exposure to asbestos. Proponents of the mines contend that certain types of asbestos can be managed safely. Asbestos, a naturally-occurring mineral, was once widely coveted for its heat containing and fire resistant qualities. Industry executives also point to the hundreds of jobs it creates in an economically-depressed area of Canada. The Conservative government in Canada has resisted international efforts to add asbestos to a hazardous chemicals list that would make it more difficult to export. The product remains in demand throughout still-developing countries, which use it in both home and business construction. ASBESTOS UPDATE: More Toxic Materials Add 50% to Abatement Fees --------------------------------------------------------------- Jessica Opoien of The Northwestern reports that the discovery of asbestos has slowed down the demolition of two vacant buildings on the land surrounding Park View Health Center, resulting in a cost increase of almost 50% for the project. The Winnebago County Board's Personnel and Finance Committee approved a budget transfer of $345,000 at its Jan. 5 meeting following a report on the project's progress from the county's director of facilities and property management, Mike Elder. Elder told committee members that as demolition of the properties located on the lot at 725 Butler Ave. has progressed, the crew razing the buildings has discovered more asbestos than was initially spotted in a scan of the properties. "We'd open up a wall cavity and then there was asbestos in the bottom," Elder said. In a preliminary asbestos survey, 11,000 square feet of asbestos was found -- but Elder said they don't know where else the substance might be located. The buildings have been full of surprises, from asbestos-based floor adhesive to pipes in the walls that were hidden until demolition began. These surprises have hindered the ability of Veit & Company Inc., the New Berlin-based salvage company that started razing the buildings in October 2011, to make significant progress. Veit originally won the demolition contract with a $754,904 net bid. Elder said the crew is working at about 40% to 50% of its efficiency, and has requested $850 per hour of lost time. That fee, along with the cost of the additional asbestos removal, amounts to the $345,000 budget transfer approved at Thursday's meeting. "You can't work in an area where you're doing asbestos removal," Elder said. The stop-and-start nature of the demolition will tack on an additional three to four weeks of work in attempts to take down the five-story Rehabilitation Pavilion, which has a much larger hidden asbestos problem than the three-story Pleasant Acres building, Elder said. Demolition on the Pavilion was originally slated to be completed by the end of December 2011. Several committee members balked at the additional expense, questioning why it hadn't been accounted for in the original estimate. David Albrecht, the committee's vice-chair who represents District 11, motioned to approve the expenditure, but only after an extensive discussion. The committee agreed that the alternative -- leaving two half- demolished buildings on county property -- was unacceptable. "Realistically, you're eventually going to tear the building down," said Winnebago County Executive Mark Harris. The owner of a building -- in this case, the county -- is responsible for all asbestos, and a building can't be torn down until all asbestos is removed, Elder said. Harris assured the committee that they haven't exceeded the cost of the project, which is intended to enhance the view of residents of the county-owned nursing facility at its completion. ASBESTOS UPDATE: Abatement at Wash. School May Cost Millions ------------------------------------------------------------ Matt Finn at KIMATV.com reports that last Spring, a fire destroyed the Safari and El Conquistador restaurants in Sunnyside, Wash. However, it was only recently property owners learned the situation was even worse. Asbestos was found on the site. An expensive removal process was needed to complete demolition. It's not simple or cheap. "Basically guys had to have suits and respirators and come in and do a wet removal, manual method, bag everything up in asbestos bags," said Jerry Conduff, an asbestos-removal specialist with Tri-Valley construction. Asbestos can be a common occurrence in older buildings around the Yakima Valley. Ryan Mathews is part of a local consulting firm that tests about 100 sites a year. He says most test positive for the toxic material. "Typical abatement project costs range from a couple thousand dollars to, in some cases, more than a million dollars," Mathews said. One of those multi-million dollar projects might be located at Eisenhower High School. The building is known to contain asbestos and when it's demolished in the next year or so, taxpayers will pay the cost for its removal. 'It's a large high school. There's piping, there's a ton of flooring materials, just all kinds of materials in there that could have asbestos in them," Conduff said. Students are safe in school for now. Asbestos isn't dangerous until it's broken up. When it comes time to demolish Eisenhower, Mathews says taxpayers will most likely foot the bill as part of the project. He says the state refuses to pay for asbestos removal in local buildings. "It really could be a hidden cost, it can come out of the blue," said Dave Caprile of the Yakima Valley Clean Air Agency. ASBESTOS UPDATE: Lowest Bid for SportsPlex Abatement is at $32,523 ------------------------------------------------------------------ Tim Jamison at wcfcourier.com reports that efforts to clear two downtown city blocks for the Cedar Valley SportsPlex moved forward. Waterloo City Council members opened bids for asbestos removal at four Jefferson Street buildings slated to be demolished for the proposed $23 million field house, fitness and aquatic center. Abatement Specialists Inc. of Cedar Rapids appeared to submit the lowest of five bids received on the project at $32,523. But those bids will be reviewed before council members are asked to approve the contract. Community Planning and Development Director Noel Anderson said the city is getting ready to seek demolition bids for the structures so they can be torn down once asbestos hazards have been abated. "We definitely want to tear down the SportsPlex (properties) as quickly as possible," Anderson said. The buildings were all acquired by the city with plans to remove them -- and two other buildings -- for construction of the Sports- Plex. The four properties included in the contract include the former automotive repair shop at 212 Jefferson; a house at 302 Jefferson; the former Teamsters Union building at 306-308 Jefferson; and the former Black Hawk Center for Independent Living at 312 Jefferson. The city is responsible for clearing the site for the proposed 127,300-square-foot SportsPlex under a development agreement with the Waterloo Development Corp. The WDC is using private funds and gaming revenue to construct the facility, which would be managed by the city's Leisure Services Commission and eventually turned over to the city in 2023. The city has already spent more than $2 million acquiring the necessary property, but still needs to buy the Iowa Community Credit Union site and a private home. In other business, council members opened bids for the asbestos removal in preparation for the demolition of the former Francis Grout School at 330 Madison St. Advanced Environmental Testing and Abatement Inc., of Waterloo, appeared to submit the lowest asbestos removal bid of $38,880. The city has a grant to cover the asbestos abatement but will need to come up with additional funds for demolition. Demolition of blighted homes at 915, 917, 919, 927 and 1021 Lafayette St. under a federal grant designed to improve the neighborhood. Frickson Brothers Trucking of Evansdale appeared to submit the lowest bid of $28,700 on the project. ASBESTOS UPDATE: LAB Chrysotile in Bankruptcy; Meeting on Jan. 23 ----------------------------------------------------------------- Robert Gibbens of The Montreal Gazette reports that LAB Chrysotile Inc., one of the Quebec asbestos mining industry's two potential survivors, said on Jan. 4 it has filed for bankruptcy because of high fixed costs and sharply declining revenues. "This is a straight bankruptcy and the company is no longer financially viable in its present form," CEO Simon Dupere said. "I can't discuss the financial details, but our ultimate goal is to restart operations under a new structure at the former production rate of 125,000 tonnes a year." LAB operates the Lac d'Amiante mine near Thetford Mines in the Eastern Townships. It has been producing chrysotile asbestos fiber mainly for export for more than 50 years. It was backed originally by Asarco Inc., the big U.S. copper and molybdenum miner and refiner. LAB halted production indefinitely at Lac d'Amiante last October with the loss of 350 jobs. Dupere then cited operating problems, including labor and mine development issues. The company then showed annual revenue of about $50 million from exporting chrysotile fiber mainly to North Africa, the Middle East and Asia. Dupere said many of the Lac d'Amiante workers have retired and the others have found new jobs or are on unemployment. He would not disclose the company's ownership nor whether it can still ship from inventory. The Dec. 30 filing lists assets of $3.36 million and liabilities of $50.1 million. The first creditors' meeting is set for Jan. 23. Earlier, LAB said in a statement it hopes to discuss its future with all stakeholders later this month. The company aims at getting back on a solid financial footing, but admits big changes would have to be made at the Lac d'Amiante mining operation to improve efficiency and ensure future financial viability. The much bigger Jeffrey open-pit mine at Asbestos, 90 kilometers away, also halted production last autumn. It has been awaiting a Quebec government loan guarantee to help attract finance for new underground operations for several months. The government has held back, possibly because of rising opposition to all asbestos mining in the province. Dupere refused to say where LAB could find new financial support, but the company has not approached the government for a similar loan guarantee. The industry says longfiber chrysotile asbestos can be used safely under controlled conditions for roofing, piping and many other construction jobs. It claims it sells the fiber only to approved converters in countries such as India. Critics say the use of any asbestos fiber is dangerous to health and it is being removed from existing buildings in the U.S., Canada and many other countries. They have mounted a massive provincial campaign to ban all types of asbestos and indirectly threaten the planned reopening of the Jeffrey and Lac d'Amiante mines. More than a decade ago, the former Noranda Mines invested $700 million in a new electrolytic refinery to convert the Jeffrey mine's massive tailings into magnesium metal, using patented technology developed at its Montreal research centre. The Magnola project failed after two years, unable to battle international competition, especially from China. * * * Bertrand Marotte at The Globe and Mail relates that the "miracle fiber" that helped drive Quebec's economy for more than a century now represents an industry near death, despite government efforts to keep it afloat. In its heyday in the mid-1960s, Canada's asbestos industry employed thousands and produced about 40% of the world's supply of the silky-white product known for its resistance to fire, rust and rot. It was used widely in construction throughout North America, including at the Parliament Buildings in Ottawa. Now, it's known more for being ripped out of walls as a danger to public health. Many developed nations have banned it outright, and critics warn it's impossible to ensure its safe use in developing countries. These concerns over a known carcinogen have put the industry on its last legs. Production at one mine has been halted until it can get refinancing, and another miner -- Thetford Mines, Que.-based LAB Chrysotile -- filed for bankruptcy on Jan. 4, 2012, leaving no active operations in Canada. Yet a market still exists in the developing economies, and industry officials say chrysotile asbestos -- popular in countries such as India and Indonesia as a reinforcing agent in cement products -- is safe when used properly. Proponents insist it has a glowing future in global markets, despite growing international pressure on the Canadian and Quebec governments to cease financial and political backing of the industry amid mounting evidence of asbestos's health hazards. "I'm convinced we can re-launch the mine. We're going to push for a plan of action, talk to all the players," said a determined Simon Dupere, president of LAB Chrysotile, which announced Jan. 4, 2012, it had to declare bankruptcy after a halt in production last October led to mounting fixed costs with no revenue to offset them. The company's Lac d'Amiante mine in Quebec's Eastern Townships employs about 350 people. The mineral's growing pariah status -- it's been singled out by medical and health authorities around the world as a major carcinogen and contributor to lung disease, and has been banned in dozens of countries -- doesn't faze Mr. Dupere. "We've been fighting [the negative publicity]. I'm convinced that this product can -- and is -- used in a safe fashion," he said. "It's prized in many places as a low-cost infrastructure-building material." He aims to have the operations back up and running "as quickly as possible" and isn't relying on government help, unlike the Jeffrey Mine, which has been struggling for months to clinch a new financing deal backstopped by Quebec. The sector needs the clout and backing of the Quebec and federal governments to survive, said Kathleen Ruff, senior human rights adviser to the Rideau Institute. "The industry is totally bankrupt, but it continues to lobby to get public funds to save itself," she said. Prime Minister Stephen Harper's Conservative government is adamant that asbestos should not to be added to a global hazardous- chemicals blacklist under a United Nations treaty called the Rotterdam Convention. The government agrees with industry officials that asbestos is safe when used properly. Officials in both the Quebec and federal governments were not available to comment as of this report. Worldwide production of asbestos is slipping, having fallen 5% to just below two million tons in 2010 compared to a year earlier, according to the U.S. Geological Survey. Russia accounts for about half that volume, followed by China at about 18% and Brazil with 14%. Sales of asbestos are also falling worldwide, as more developed countries express concerns about health impacts. John Ries, a business at the Sauder School of Business at the University of British Columbia, said there are always victims in declining industries, particularly those with higher-cost operations. As for the Canadian workers, Mr. Ries believes those who lose employment be able to find positions in other areas of the country's booming resources sector, particularly in rich mining regions like Quebec. "Hopefully these workers will find work elsewhere," he said. ASBESTOS UPDATE: Judge Harrison is New Madison Cty Docket Master ---------------------------------------------------------------- Christina Stueve of The Madison/St. Clair Record reports that Madison County Associate Judge Clarence Harrison, settling in as head of the nation's busiest state court asbestos docket, reassured lawyers packed into his small second floor courtroom, "Things will fit into place." Harrison was hearing pre-trial motions, an occurrence that happens almost weekly with local and out of state lawyers pleading their cases in what is estimated to be thousands of pending asbestos lawsuits. Harrison replaced Circuit Judge Barbara Crowder last month after it was learned she had accepted $30,000 in campaign contributions from asbestos lawyers, days after she made a favorable ruling for them. Crowder, who said on Dec. 14 that she would return the money, has denied doing anything that would have violated the code of judicial conduct. According to the State Board of Elections website, Crowder has not yet filed a quarterly report which would reflect the return of contributions that came from lawyers at the Simmons Firm in Alton and the Goldenberg firm and Gori & Julian of Edwardsville. B Quarterly reports are due Jan. 17. At the Jan. 4 asbestos hearing, plaintiff attorney Eric Jackstadt -- ejackstadt@toverdict.com -- of Granite City requested an emergency motion to accelerate proceedings for his client in an asbestos case filed just last month. His client, Donald Norton of Elijay, Ga., is dying of malignant mesothelioma, Jackstadt said. He said he hopes to get Norton's deposition taken before he dies. His client became aware that he had the disease on Nov. 18; his lawsuit was filed Dec. 12. Jackstadt described the emergency motion as "routine." "All these people will die from this illness," Jackstadt said. "We try to be careful about asking for expedited settings." Jackstadt requested that his client's testimony be placed on record before he's unable to testify, or before he dies. He said he hopes to have a discovery deposition taken on Jan. 12 at Norton's home, which is 75 miles north of Atlanta. The next step would be to set a trial date. Others who spoke at the hearing included attorney Gary Saalman -- gjsaalman@vorys.com -- of Columbus, Ohio, who represents Goodyear Tire and Rubber. He had a motion to dismiss over judgment of a case. Attorney Amy Garrett -- agarrett@simmonsfirm.com -- with the Simmons Firm said she needed medical releases and interrogatory responses for one of her cases. Harrison, who has previously handled the asbestos docket when, for instance, Crowder was involved in presiding over a trial, commented on the infrequency of asbestos trials in Madison County. "By the time of trial, they come up with a negotiated settlement," he said. "The attorneys handling cases are familiar with claims and reasonable values to resolve or dismiss cases. We have a lot of very experienced individuals handling cases." The last time an asbestos trial occurred in Madison County -- March 2010 -- jurors found in favor of defendant Ford Motor Co. Plaintiffs' attorney Jonathan Ruckdeschel -- rucklawfirm@rucklawfirm.com -- of Maryland had asked for more than $14 million in damages. Ford was sued along with a number of other brake manufacturers for allegedly selling products that caused a Chicago man's mesothelioma. Ford was the only defendant that did not settle its case with plaintiffs Larry and Meta Williams. ASBESTOS UPDATE: Woman With Mesothelioma Achieves Full Remission ---------------------------------------------------------------- About Mesothelioma.net reports that Sherrie Moore, a 55-year-old Missouri woman, hopes to live to see her grandchildren grow up. As 2012 begins, Moore is marking more than just the new year. She is celebrating the remission of her mesothelioma for more than a year. Mesothelioma is an aggressive cancer of the lining of the lungs and abdomen caused by asbestos exposure. But it can be difficult to detect as Moore's circuitous path to a diagnosis shows. Four years ago, Moore, who lives in Carl Junction, Missouri, was experiencing fatigue, an elevated heart rate and eventually pain in her right side that extended into her back. She assumed it was caused by the stress and physical exertion of caring for her husband Ed who had prostate cancer. According to an article in Cancerwise published by the M.D. Anderson Cancer Center, Moore underwent a series of medical tests that revealed a low hemoglobin count. A colonoscopy showed normal results as did a CT scan of her liver and pancreas. The doctor who performed a CT scan thought something looked abnormal about her lungs and referred her to a pulmonologist. A pulmonary specialist did an x-ray and discovered a small volume of fluid in Moore's lung and put her on antibiotics. Fluid in the lungs, also called pleural effusions, is one of the common symptoms of mesothelioma reported by many patients. When Moore returned at the urging of the pulmonologist, she had another CT scan that revealed nearly two liters of fluid in her right lung. She underwent an outpatient procedure and biopsy that were inconclusive. The cancer specialist to whom she was referred recommended an open lung biopsy. The surgeon who performed the procedure in November 2008 found 15 tumors in Moore's right lung and diagnosed Moore with stage IV mesothelioma. The doctor recommended that she seek treatment at M.D. Anderson Medical Center in Texas. With patients with cancer limited to one lung, doctors may remove the cancerous lung and surrounding tissue and perform chemotherapy and radiation. But Moore had mesothelioma in both lungs so she had limited treatment options. Moore underwent 28 chemotherapy treatments that lasted until December 2010. Before the treatments concluded, there was no active sign of mesothelioma. Moore's physician, Dr. Anne Tsao, director of the mesothelioma program at M.D. Anderson, informed Moore that she was the first of her patients to achieve full remission. Approximately 3,000 people in the U.S. are diagnosed with mesothelioma each year. Many are older workers, veterans and retirees who were exposed to asbestos in the workplace decades ago. Typically, mesothelioma symptoms appear 30 years to 50 years after initial exposure to asbestos. ASBESTOS UPDATE: ZMDC Eager to Resume Operations, Pays Out Workers ------------------------------------------------------------------ New Ziana at the Malaysian National News Agency, BERNAMA, reports that Zimbabwe Mining Development Corporation (ZMDC) is close to completing the feasibility study that it is carrying out to pave way for the resumption of asbestos mining operations at the defunct Shabanie-Mashava Mines (SMM), an official says. Formerly owned by South Africa-based businessman Mutumwa Mawere, SMM is now administered by ZMDC on behalf of the Zimbabwean government after it collapsed in 2008, leaving an estimated 3,000 workers jobless and Zvishavane and Mashava ghost towns. ZMDC Chairman Goodwills Masimirembwa told New Ziana on Dec. 2 that mining operations would commence within 90 days of the completion of the feasibility study. "We are almost completing the feasibility study which will pave way for the commencement of mining operations at Shabanie Mashaba Mines. We hope that in the next 90 days mining operations will have started." Masimirembwa said the ZMDC was determined to revive SMM as it had already paid the workers their outstanding salaries. "To prove that we are determined to revive the mines, we paid SMM workers last week," he said. Before suspending operations, SMM used to produce an estimated 200,000 tons of asbestos every year. Once one of Africa's largest asbestos producers, the mine had access to markets in the United States, Britain, Angola, Nigeria, Zambia, Mozambique, India, Iran, the United Arab Emirates, China and Indonesia. SMM is believed to be sitting on reserves which could last for the next 20 years, helping to strengthen the construction and manufacturing industries which had been on the decline. ASBESTOS UPDATE: "Can't Tell Firms Not to File Here," Judge Says ---------------------------------------------------------------- Christina Stueve of The Madison/St. Clair Record reports that Madison County Board Member Mike Walters told Madison County Chief Judge Ann Callis and members of the county judiciary in a meeting on Jan. 6 that being on the (American Tort Reform Association's) Judicial Hellhole list "scares the hell out of me." Walters, a Republican, has called for the resignation of Madison County Circuit Judge Barbara Crowder, who was removed as the court's asbestos judge after accepting campaign contributions from plaintiff's law firms. Lawyers from the county's three biggest asbestos firms -- Simmons, Goldenberg and Gori & Julian -- contributed a total of $30,000 just days after Crowder had entered a favorable ruling for them last month. Walters and Callis debated for about 45 minutes at the committee's monthly meeting. "I'm saying that this asbestos docket is killing us," Walters told reporters after the meeting. "I'd love to see Madison County boom. We have rivers, highways and airports. Why aren't people flocking here? I've heard it's the judicial system. "To me, this is a serious problem," Walters said. Callis sat with Associate Judge Steve Stobbs on her right and Circuit Clerk Matt Melucci on her left. "We can't tell firms not to file cases here," Callis said. "It isn't illegal for a judge to take campaign donations." Crowder, who said on Dec. 14 that she would return the money, has denied doing anything that would have violated the code of judicial conduct. In addition to Walters calling for Crowder's resignation, Madison County Board Chairman Alan Dunstan last month called for an investigation by the Illinois Judicial Inquiry Board (JIB). A Dec. 28 letter from the JIB in response to Dunstan was passed around at the meeting. The JIB confirmed that it had received a complaint against "an Illinois state court judge" and would determine if an investigation is warranted. Details of "any investigation" are not to be shared, the letter stated, and only those documents filed with the commission during a prosecution become public record. After the board reaches a decision, Dunstan can expect a written notification, the letter stated. On Dec. 12, Callis reassigned Crowder to handle chancery, miscellaneous remedies and eminent domain cases. At the Jan. 6 meeting, Callis countered Walters by saying that in the past five years, four asbestos jury trials have resulted in defense verdicts. "The asbestos docket represents less than one percent of all cases going through Madison County, not that there are not issues," she said. She assured the committee that with the new judge (Clarence Harrison) "everything will be looked at." Walters then stated he wasn't blaming Callis. "When we appear on the judicial hellhole list, that scares the hell out of me," Walters said. "It appears we're giving out dates to attorneys. My biggest concern is that we're working more to help people who aren't in Madison County than people who are." A vast majority of asbestos lawsuits filed in Madison County, the busiest state court asbestos docket in the country, are from out of state residents. Walters pointed out that when businesses see the hellhole list, they believe it. Walters commended Callis for her quick action in removing Crowder from the asbestos docket. "I do defend you, and I get my rear end chewed out," he said. "A lot of people have asked, and I don't think I'm the first person to ask, for her resignation." Also at the meeting was a representative from the state's attorney's office and Madison County Sheriff Bob Hertz. ASBESTOS UPDATE: Widower Secures Six-Figure Payout Out of Court --------------------------------------------------------------- Solicitors Hodge Jones & Allen LLP reports that a widow has been awarded compensation after her husband died as a result of inhaling asbestos at work. John Bromley, 62, had worked for Stafford Corporation -- now Stafford Borough Council -- for 37 years as a building inspector and surveyor, the Staffordshire Newsletter reports. In the 1970s, his role involved making sure enough asbestos had been sprayed on to beams to make them fireproof, so batches of the deadly building material were often made up in his presence. Mr. Bromley began to suffer from shortness of breath in October 2009, which worsened and then became a persistent cough and vomiting. Mr. Bromley was diagnosed with the terminal lung disease mesothelioma and although he underwent months of chemotherapy, the victim died in January 2010. His widow Angela took legal action against Stafford Borough Council and has now won an undisclosed six-figure sum in compensation from its insurers as part of an out-of-court settlement. "Even as long ago as the 1950s, there was an awareness of the dangers of asbestos and Stafford Corporation should have done more to protect their employees," her legal representative said. In late 2011, the widow of 66-year-old joiner William Wolff secured GBP258,520 in compensation after he also died from mesothelioma. Mr. Wolff had breathed in asbestos fibers at Weir Construction, which admitted that it had negligently exposed him to asbestos dust and agreed to the settlement. Anyone affected by industrial diseases should seek the advice of a solicitor as soon as possible, even if the company where exposure took place is no longer in existence, as it may be possible to track down their insurers. ASBESTOS UPDATE: MassDEP Fines Bldg Owner for Violations -------------------------------------------------------- Banker & Tradesman reports that The Massachusetts Department of Environmental Protection (MassDEP) has assessed an $18,187.50 penalty against 320 Elm LLC of Southbridge for violations of MassDEP's asbestos regulations. The violations occurred during the removal of asbestos-containing transite siding shingles from a residential property located at 255-257 Marcy Street in Southbridge, a property the company owns. During an inspection of the site in November 2009, MassDEP personnel found the company had removed the asbestos-containing siding itself without having provided prior notification to MassDEP, and without following the required handling, packaging and disposal procedures. Numerous pieces of shattered asbestos transite shingles were observed dry, uncontained on the ground and in a roll-off dumpster at the property. Upon discovery of the violations, the company was required to hire a Massachusetts Division of Labor Standards-licensed asbestos contractor to properly handle, package and dispose of all the asbestos-containing waste materials, and to decontaminate all impacted areas of the property. MassDEP regulations require asbestos-containing transite materials to be removed wet, in a manner that minimizes breakage, and then carefully lowered to the ground. The regulations also mandate that asbestos waste be sealed, while wet, into leak tight containers that have the appropriate asbestos warning labels affixed to them. Under the terms of the settlement, the company must pay $4,000 of the assessed penalty, and MassDEP suspended the remaining $14,187 as long as there are no repeat violations for one year. "Contractors and property owners must be fully aware of their responsibilities to thoroughly inspect buildings, which they intend to renovate for the presence of any asbestos containing- materials," said Lee Dillard Adams, deputy director of MassDEP's Central Regional Office in Worcester. "Failure to identify and properly remove asbestos-containing materials is an extremely serious and ultimately a costly oversight that potentially exposes workers, residents and the general public to a known carcinogen. Noncompliance inevitably results in significant penalty exposure, as well as escalated cleanup, decontamination, disposal and monitoring costs to both the property owner and the contractor." ASBESTOS UPDATE: Marycrest Owner Pays Improper Abatement Fine ------------------------------------------------------------- Mary Owen of TribLocal Joliet reports that the owner of a Joliet shopping center accused by state regulators of violating rules for proper asbestos removal has agreed to pay $110,000 in fines as part of a consent order agreement. In November, the Illinois Attorney General's Office filed a complaint against Schaumburg-based RMS Properties, Inc., which owns Marycrest Shopping Center, 2112 Jefferson St., related to allegations from 2008 and 2009. During that period, RMS was renovating the building, which was built in the 1950s. The complaint, filed by the attorney general on behalf of the Illinois Department of Public Health, outlines alleged violations starting after an April 15, 2008, anonymous tip "regarding the improper handling and removal of suspected asbestos-containing material." The complaint was filed Nov. 3 in Will County Circuit Court. A consent order was filed with the court Dec. 7 resolving the case. A February hearing was thus canceled. According to the complaint, unlicensed workers were removing asbestos floor tiles and improperly discarding them into garbage bins, both violations of asbestos removal regulations. The complaint outlines several counts, including violations related to air pollution, failure to secure work areas to avoid the spread of asbestos spores and failure to give notification of asbestos- related work. City officials shut down the project twice in 2008 and 2009 after concerns about asbestos exposure. State Environmental Protection Agency officials were notified by anonymous tipsters on three separate occasions between April 2008 and February 2009 regarding asbestos. Renovation at the shopping center is now completed, said Drake Mertes -- drakemertes@ddmlaw.net -- attorney for RMS. He declined further comment, except noting that the order avoids further litigation. ASBESTOS UPDATE: Scheduling for Asbestos Docket on March 26 ----------------------------------------------------------- Cynthia M. Ellis of The Telegraph reports that Madison County's chief judge declined, on Jan. 6, to address demands by Republican County Board members seeking the resignation of a second judge over her acceptance of campaign contributions. Chief 3rd Circuit Judge Ann Callis said she was bound by confidentiality and rules of the court in what she could say about Circuit Judge Barbara Crowder, who Callis removed from all asbestos-related cases last month after it was learned she had accepted campaign contributions from defense attorneys specializing in asbestos cases. Madison County Board member Mike Walters, R-Godfrey, called for Crowder's resignation during the County Board meeting on Dec. 21. He wrote a letter addressed to Callis that was signed by nine of the 10 Republican board members but none of the 19 Democrats on the Madison County Board. County Board Chairman Alan Dunstan, D-Troy, has filed a complaint with the Illinois Judicial Inquiry Board to investigate whether Crowder committed misconduct by accepting the contributions. Crowder has said neither she nor her campaign committee violated any ethical laws or codes, but she would return the money. Crowder's campaign committee received $10,000 each from three asbestos plaintiff firms: Gori, Julian and Associates; Goldenberg, Heller, Antognoli and Rowland; and the Simmons Law Firm. The contributions were made just days after Crowder signed a preliminary order that gave the majority of the trial slots for the 2013 docket to those same firms. Callis addressed the Madison County Judiciary Committee on Jan. 6 about the letter, stating she had heard about it but never received a copy of it. However, after Walters, a member of the committee, provided her with a copy, she acknowledged that she already had read it. Callis cited the Illinois Constitution, Article 6, Section 15, which she said is explicit about the confidentiality of the judicial inquiry board process. "I know everyone in this room respects our Illinois Constitution," she said. "I have to follow that, and there is confidentiality in this process." She said Illinois Supreme Court Rule 21 and her code of judicial conduct are the rules that she follows in such matters. "I can assure you I have adhered to all of those rules, and I'm duty-bound to adhere to those rules," Callis said. "I have a boss, too, and my boss is the Supreme Court of the state of Illinois. I would hope that all of you in this room would respect that." Walters said that he did. He said people approached him following reports about the contributions to Crowder's campaign and said it "stinks to high heaven." He said his concerns were about the asbestos docket and attorneys being given court dates up to two years in advance. "I'm no expert on this," he admitted. Callis said she had a meeting with associate judges Steve Stobbs, Tom Chapman and Clarence Harrison to discuss the direction in which the court is headed. "The court took immediate action when we discovered what occurred," she said. "Judge Harrison now is the asbestos judge." She said that naming Harrison was the first significant change. The second significant change was naming Stobbs as supervisor of the civil associate division, and both he and Chapman would assist Harrison in going forward with the asbestos docket. Callis also said Harrison set a hearing at 10 a.m. March 26 to set the scheduling order for the asbestos docket. Stobbs, who also attended the judiciary meeting, said that scheduling order previously set by Crowder was temporary, and that anyone could file objections or complaints before the public hearing. Walters said his concern was that docket was set when there were not even cases filed for the scheduled dates. Both Stobbs and Callis said the process in how the scheduling order came about happened years ago, and both plaintiff and defense agreed. "Since we have a new judge, everything is being looked at," she said. She said there have been only four jury trials in the past five years, and every single one has ended with a verdict in favor of the defendant. The last trial to take place was in March 2010, and jurors found in favor of Ford Motor Co. "The asbestos docket represents less than one percent of all the cases that come through the docket," Callis said. She said many of the things that the court does may be overlooked because of the "hyper-focus" on the asbestos docket. Following the meeting, Walters said he wasn't attacking anyone, but would hope that the hearing in March would result in a clear process for how court dockets are set in Madison County. "This is a step in the right direction regarding our judicial system," Walters said. ASBESTOS UPDATE: Shuttered Roro Mines Continue to Pose Risk ----------------------------------------------------------- Javed Iqbal of Daily News & Analysis-India relates that when miner Dansingh Bodra was asked about the people from his village who he worked with in the asbestos mines of Roro, who have all died before their time, he slowly starts counting, first to himself, and then loudly: "gyaara, Pooliya Sondi . . . baara, Rohto Gop . . . taira, Bagan Sondi . . . chowda, Vijay Singh Sondi . . . pandra, Gono Sondi . . . sola, Harish Sondi . . . sattra, Sukmon Sondi . . . atthra, Rahto Samadh." Dansingh himself suffers from cancer, a huge tumor grows out of his stomach. It took him five minutes to remember the dead. A few seconds to denounce the company that laid them off one fine day when the mines shut down in 1983. "They gave us nothing, no healthcare, no pension, just these illnesses." "I worked in the mines for 12 years, and from that day itself I used to cough, and slowly it started to get worse." This man with a lump growing out of his stomach remains a testament to the reality of internal colonization, of a company that currently earns aggregate revenues of over Rs800 crore, of industrial development, and the idea that mining offers jobs. Dansingh Bodra awaits death in a village where his three grandchildren sleep behind him suffering from fever. The mines have long but closed down, but the dust and pollution that emanates from them, still spread across the fields. Even today, as per law, especially as per section 22 of the Air (Prevention and Control of Pollution) Act 1981, all asbestos mines have to be closed. But Hyderabad Industry Limited, part of the CK Birla Group, did not close their mines at Roro village at Chaibasa, West Singhbhum, Jharkhand. As a result, the asbestos fibers that are blown into the wind, that seep into the fields and rivers, still exist 30 years after the mines shut down. "So many people died before they turned forty," said Birsingh Sondi, who points to his neighbours house, "There lived Mangalsingh Sondi, who was 25 when he died, and he never even worked in the mine. His father, Sukmon, worked there, and he died a few years ago too." Asbestos, whose use, manufacture and extraction is banned across the European Union, is still used widely across India and is part of a Rs4,000 crore industry dominated by around 18 companies who justify the use of asbestos as a substitute for affordable roofing, and claim that chrysotile asbestos can be safely manufactured and used without risks. The companies claim that the kind of asbestos used in India isn't carcinogenic, even as all forms of asbestos are classified as carcinogenic by the World Health Organization, the International Labour Organization, and the International Agency For Research On Cancer, who mention in a report that was published in 2010: 'Epidemiological evidence has increasingly shown an association of all forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite, and anthophyllite) with an increased risk of lung cancer and mesothelioma.' It goes on to mention that an estimated 125 million people are still exposed to asbestos at the workplace. Yet, the Asbestos Cement Products Manufacturers Association, one of the main lobby groups for the continued production and use of asbestos, has repeatedly claimed, "Some five hundred other products and industrial processes are recognized as carcinogens, but this does not mean that we must prohibit their use." While the lobby has often reiterated that chrysotile asbestos is safe, the chairman of the Asbestos Cement Products Manufacturers Association, Abhaya Shanker, is also the managing director of Hyderabad Industries Limited. In a telephonic interview with Abhaya Shanker, he said they have closed the Roro mine, and that the mountains of asbestos tailings from the mine are not carcinogenic. "Roro is a finished chapter, a closed mine 30 years back, what's the point of Roro? I don't understand," he exclaims. "That is all an old story, an old type of asbestos and that is all done. The mine is safely handed over, and closed, and handed over to the government of India, and there is no danger to the public. It's all bullshit." "According to the Supreme Court directives in the CERC case, you have to monitor the health of your workers? Do you also monitor the health of your workers from Roro?" Iqbal asked. "You can look at our world class health monitoring system, for our workers . . . for several years we keep calling them, for check- ups, for studying them," responds Shanker. "Even the Roro workers?" Iqbal followed. "The Roro workers are all finished, we would have done them (the survey) for a couple of year, and it's been 30 years now, nobody would be alive now," says Shanker. Roro Hills at Chaibasa were first mined for chromite in the early 1960s by the Tatas. The mines were sold to the CK Birla Group, as the Tatas moved onto mining chromite at Sukinda, in Odisha, which itself, according to international environmental group Blacksmith Institute, is one of the 10 most polluted places in the world, where approximately 70% of the surface water is contaminated by hexavalent chromium, and 24.7% of the population living around the mines are suffering from pollution-induced diseases. When Iqbal visited the village of Suanla in Sukinda in 2010, an old man scoffed at the media's ability to highlight the issue. He claimed that over 30 people have died in the past few months. Some called the deaths in Suanla an exaggeration, but in the house of Markand Hembram, four members of the household had died within a year. Quoting the report by the Blacksmith Institute, the government itself had gone on to say: 'It is unique, it is gigantic and it is beyond the means and purview of the [Orissa Pollution Control] Board to solve the problem.' Back at Roro, there were attempts to close the mountain and clean up. Way back in 2003, a public hearing was held where villagers from 14 villages around the mines had spoken up about working in the mines and the health issues in their villages. The hearing was organized by Jharkhand Organization For Human Rights, and was paneled by a group of prominent doctors and advocates. The report of the hearing was taken to the District Collector and Chief Medical officer who were given representations for conducting medical camps, to monitor health of workers and non- workers, and to detail a scientific closure of mines and to hold Hyderabad Industries Limited accountable to pay for health and environmental damages. Yet, till date, there have never been any attempt by any official body -- from the Pollution Control Board, the Directorate General of Mines Safety, the Mining Department, the company or the local administration to remediate and clean up the mine tailings or do a proper closure. At Roro, only three miners who worked with the Birla Group are left alive. But not everyone worked directly under the company since independent contractors had also taken on the work of disposing asbestos dust, and they paid workers Rs1.50 per day, for working from eight in the evening to eight in the morning, to clear dust. "There was no izzat in mining, we should never have allowed them here," says Dansingh Bodra, who had even worked underground, mining asbestos without any protective clothing. And there were accidents: Turam Sondi, Jida Sondi and Dausar Sondi were killed in the mines in a few years before the lockout and the closing of the mines. "No one should ever have worked the way we did." ASBESTOS UPDATE: Law Firm Belluck & Fox Cites EPA's Fails --------------------------------------------------------- A recent report from the U.S. Environmental Protection Agency about its own apparent mishandling of asbestos in demolition projects underscores the pervasive threat this cancer-causing material poses to Americans' health, New York mesothelioma attorney Joseph W. Belluck said. "If the governmental body charged with keeping us safe from environmental hazards can fail to protect its employees and contractors from asbestos exposure, it is frightening to consider the dangers faced by employees of less-conscientious organizations," said Belluck, a partner in Belluck & Fox, a New York personal injury firm that represents victims of asbestos exposure. Belluck was referring to a Dec. 14 memo from the EPA's inspector general that highlighted concerns about the use of unapproved demolition methods at EPA sites where asbestos was present. Because inhaling asbestos fibers is known to cause lethal cancers such as mesothelioma, demolition crews are required to follow strict protocols to prevent exposure to the deadly material, Belluck said. The EPA report indicated that unapproved asbestos-handling methods were in use at several sites, including one in Washington state and another in Kentucky. The inspector general also cited videos and photos that showed unprotected government workers and contractors present during experiments with unapproved alternative asbestos control methods in Arkansas and Texas. "Many of our clients developed mesothelioma or other asbestos- related diseases after being exposed to toxic asbestos at work decades ago," Belluck said. "It is very alarming to think that workers are still facing exposure to this cancer-causing substance -- even at job sites that are under the control of the government's environmental watchdog." Asbestos, which was once extensively used in a wide variety of applications, is the only known cause of mesothelioma. The disease is a rare but very aggressive form of cancer that usually affects the lining of the lungs. There is no known cure. Many victims do not develop mesothelioma until several decades after their exposure. Because asbestos products remain in many older structures, the EPA has developed specific procedures for safer handling of asbestos during demolitions and renovations. The standards require specialists to remove asbestos-containing materials while minimizing the amount of asbestos dust produced. Because the standards apparently were not followed at several EPA sites, according to the inspector general, the agency should notify workers and the public in the surrounding areas of the possibility that they were exposed to asbestos. Belluck encouraged anyone who has developed an asbestos-related disease to seek qualified medical treatment. He also emphasized that it is important to consult with an experienced asbestos exposure attorney. 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: News Agency Tackles Sri Lankan Asbestos Industry ----------------------------------------------------------------- Rhian Deutrom at The Sunday Leader - Sri Lanka, in her article, "Sri Lanka's Silent Killer" relates that as the sun rises over the Ratmalana grounds of The Sunday Leader, across the road workers lazily file through the gates of a colossal grey factory to begin the day's production of asbestos-based building products. This is just one of the several asbestos product factories in Sri Lanka which provides employment for thousands of people island wide. Yet what these workers handle each day is one of the most deadly substances in the world. Asbestos is a mineral group which is widely used as a building material in developing countries due to its strength, light weight and low cost. Studies show that inhaling exposed asbestos fibers can cause serious illness including a lung cancer known as Mesothelioma as well as Asbestosis, a debilitating lung condition. Due to the developing nature of this field of study, there is no cure for either of these diseases -- the risks of handling asbestos are real and the consequences are fatal. Even more shocking is that these diseases will develop in the body for up to forty years before showing any symptoms. This disturbing evidence has prompted more than 55 countries including Australia, the US, Canada, the European Union and Japan to ban the use of all asbestos products. Australian Foreign Minister Kevin Rudd is currently working with the United Nations to push for a worldwide ban on the production of asbestos material. Despite prohibiting the use of asbestos in its own country, Canada has remained one of the largest exporters of the deadly material in the world. The controversial move has shocked the international community as it continues to export the tax-free raw material to developing nations across the globe. It is highly immoral that Canada and other developed nations can sell such deadly material to the third world. As Sri Lanka attempts to rebuild its infrastructure after a devastating civil war, the temptation of a tax free construction material is simply too good to resist. National project manager of the SAICM department in the World Health Organization, Dr. Harischandra Yakandawala told The Sunday Leader, "The asbestos industry in Sri Lanka is old enough that people will start showing symptoms of asbestos related diseases from now on. The industry may think it is safe now, but it is only a matter of time". With the help of aggressive media marketing, asbestos is the number one roofing material in the island. A highly placed source in the Sri Lankan asbestos industry told The Sunday Leader, "Since the war, the local market has increased substantially, especially in the North and East." However the source dismissed claims that the wide use of asbestos is damaging to the health of workers. "I have been in this industry for fifty years and I am fine -- our workers have medical checkups every couple of years and so far, everything is alright," he said. Environmental lawyer Jagath Gunawardena warns that this naivety will change in time as more cases of asbestos-related diseases emerge. "There are many scientific studies which have proven that extended exposure to asbestos fibers will cause health issues. However, by the time people develop ailments, it will be too late for them to act," he said. This frightening forecast has cast a dreary shadow over the thriving asbestos industry in Sri Lanka. Many asbestos manufacturers did not wish to comment on any speculation that they may be in serious danger. For now, these companies remain safe as health professionals do not test for Mesothelioma or Asbestosis. Dr. Yakandawala said, "Sri Lankan hospitals do not have the facilities and doctors do not have the training to effectively diagnose asbestos related diseases -- this is a major issue in this country". Contrary to the common belief that only workers handling asbestos are at risk, studies show that asbestos is carried through the air and inhaled by unsuspecting victims. On condition of anonymity, a source told The Sunday Leader, "As long as the employees here work safely with the sheeting, there is no problem -- the asbestos we use is perfectly safe." Unfortunately, fibers which escape from these factories are carried by the wind to surrounding dwellings and unsuspecting victims. Asbestos is also used to manufacture brake pads in buses and other vehicles. "What many people do not realize is that when these buses are travelling at high speeds along Sri Lankan roads, braking friction is high and large amounts of asbestos fibers are released into the environment," said Dr. Yakandawala. Across the globe, many victims of asbestos related diseases are currently seeking compensation from their former employers for the suffering and loss they have endured. Infamous asbestos manufacturer James Hardie has paid billions of dollars in compensation to victims and their families as a result of legal action taken against the company. Gunawardena says, "Legal action is possible in Sri Lanka however many victims will not be able to afford the medical or legal costs involved in claiming compensation". As Sri Lankans remain ignorant of the damaging health risks associated with asbestos, potential victims will ultimately be left without adequate assistance. Dr. Yakandawala warns that to protect future generations of Sri Lankans, the government must take action now to ban the use of asbestos across the island. "We must educate policy makers, health professionals and communities of the dangers of using asbestos products," he said. While the country remains oblivious to the dangers of asbestos related diseases for now, it will not be long before Sri Lanka is hit with a major health epidemic leading to a blowout in health expenditure and the potential for legal action against manufacturers. It is in the government's best interests to act now to ban the use of asbestos in Sri Lanka, before it is too late. It is encouraging to note that the Ministry of Health is aware of the problem and is taking steps to assess the situation as a matter of urgency. Time will tell whether any more lives will be put at risk by this silent killer. ASBESTOS UPDATE: Raymark Site Mulls $40M Thermochemical Cure ------------------------------------------------------------ Brittany Lyte, staff writer at ctpost.com, reports that a relatively new technology that neutralizes asbestos waste would cost about $40 million to implement at the Raymark Superfund site, according to correspondence between a federal agency and the technology developer. The process, thermochemical conversion, neutralizes not just asbestos, but all organic compounds. It destroys the very atoms that make up asbestos through a heating process and yields clean fill soil, according to ARI Technologies President Dale Timmons, the Seattle geochemist who developed the process. Save Stratford, a network of residents concerned about toxic waste in town, has been pushing the federal Environmental Protection Agency to determine whether thermochemical conversion could be used to detoxify waste at the Raymark Superfund site and other brownfields in town. Four hazardous waste sites, including the Puget Sound Naval Shipyard and a U.S. Department of Energy site in West Virginia have been remediated this way since 1999. The EPA has agreed to investigate whether thermochemical conversion technology could work on Raymark waste, which is a specific blend of polychlorinated biphenyls, chrysotile asbestos, copper and lead. In December, the EPA emailed Timmons a list of 21 questions. Timmons' responses reveal it would cost about $20 million to design and build a system large enough to process hazardous waste at the Raymark Superfund site, along with another $20 million to mobilize and demobilize the system. About 350 tons of Raymark waste could be treated at a cost of about $38,500 per day, Timmons said. About $21 million is now in an EPA remediation fund designated for the Raymark site. While the correspondence between Timmons and the EPA marks an encouraging step forward for residents who have long advocated for cleanup a solution that eliminates hazardous waste, rather than merely burying it using a method of capping, Timmons' responses indicate that ARI Technologies has never taken on a project as large in scale as the Raymark site. In fact, thermochemical conversion has never before been used to neutralize automotive brake pads, fragments of which are known to exist in Raymark waste, according to Timmons' responses to the questionnaire. "We did a fair amount of initial research talking to other people at the EPA and people at the state," said Jim Murphy, a community development coordinator for the EPA. "We're going to review the answers to the list of questions we sent out and then either send more questions or request a meeting." ASBESTOS UPDATE: CBC Video Blasts Jeffrey Mine Head's Claim ----------------------------------------------------------- Kathleen Ruff of The Victoria Times Colonist reports that Bernard Coulombe, president of Jeffrey Mine, Inc., says that reports showing workers in India handling asbestos with their bare hands is an example of "false information" ("Critics brand asbestos as Canada's latest global sin," Dec. 28). Coulombe claims that Quebec's asbestos is "used safely everywhere we export it" and comments that "there might be some small mom- and-pop shops who buy asbestos from China and do a bad job." But the fact is that workers in India filmed by CBC's The National, handling asbestos with their bare hands, were not handling asbestos from China, but asbestos from Quebec. The clothes and skin of the workers were covered with asbestos fibers, as they worked with sacks of asbestos from LAB Chrysotile Inc. in Quebec. The Indian company employing these workers, Eagle Asbestos Pvt. Ltd, was a customer of LAB Chrysotile. According to the asbestos industry, asbestos exported from Quebec has been handled under rigorous safety conditions overseas since 1997, when the Canadian government and Quebec's last two asbestos mines signed a memorandum of understanding promising this. The evidence shows that these are false assurances. ASBESTOS UPDATE: Bad Abatement Contaminates Neighbors in Chelsea ---------------------------------------------------------------- Dimity Barber at The Mordialloc Chelsea Leader reports that a Chelsea family has been forced to evacuate their home after it was showered with asbestos. An uninsured contractor blasted the potentially lethal fibers over the Bath St. property while cleaning a neighbor's roof with a high-pressure water hose. Site tests revealed three types of asbestos, including the variety which, if inhaled, can cause malignant lung cancer mesothelioma. Three houses in the street have also been affected, with the clean-up bill expected to top $200,000. Len Cubitt said his family moved out of their home after receiving medical advice. They have spent the past four weeks living in a nearby rental property. However, the contamination means trees, shrubs and even the top soil will be removed. Dr. Cubitt, a forensic engineer, said cleaning up after asbestos contamination was a "huge process". "They'll have to vacuum and wash the brickwork, remove 100mm of soil, the paving, trees and shrubs will all have to go - and possibly the air-conditioning and water services as well - it's an environmental disaster," Dr. Cubitt said. He said he was "dumbfounded" by the contractor's actions which he said had endangered his family. "My daughter and son-in-law were down from the country for Christmas and my grandchildren were here," he said. Kingston Council chief executive John Nevins said the clean-up, starting this week, would take about 10 days. "If the owners of the asbestos garage fail to comply with the clean-up notice, council will act to ensure the asbestos is safely removed," Mr. Nevins said. Environment Protection Authority spokesman Simon Frost said it was a timely reminder to only use registered tradesmen who were adequately insured. WorkSafe has been notified about the incident. ASBESTOS UPDATE: Hazmat Assessors Clears Razed Wauchope Apartment ----------------------------------------------------------------- Port Macquarie News reports that asbestos experts have assessed the site of a Wauchope apartment fire. Asbestos assessors on Jan. 6 arrived at a fire-damaged apartment block in Nelson Street, Wauchope, after a fire on Jan. 4. Flames leapt more than three meters above the roof at 9.20pm and 17 fire crew took 90 minutes to contain the fire. It was the second fire at the unit block in a week. Two men were taken to Port Macquarie Base Hospital after the block of eight caught alight five days earlier, sparked from a resident's oxygen therapy unit. A 78-year-old man was still in intensive care last week. Wauchope resident Kylie Vanacker, 37, said she was relieved when asbestos assessment team arrived. Ms. Vanacker lives across the street with her children aged 8, 6 and 3. "They walked around and looked at the levels of asbestos and we've got the answers we want now; they said it was safe," Ms. Vanacker said. But she waited nervously before the all clear, she said. Ms. Vanacker spent much of last week cleaning and re-cleaning her walls and floors on the advice of fire and rescue crew. A ducted air-conditioning system was professionally cleaned twice to remove asbestos dust, she said. "The back of my house was completely full of smoke. "I wanted details; I just wanted to know if it was okay," she said. "The block is absolutely full of asbestos (and) we didn't know what to do next." Wauchope Fire Service Acting Captain Robert Pursehouse said asbestos was most dangerous when on fire. "When we arrived the front unit was engulfed in flames. "Our crews wore breathing apparatus to extinguish the blaze," he said. Police forensics officers investigated the cause of the second fire. Mr. Pursehouse said the second fire was being treated as suspicious. A hazardous materials truck and three fire and rescue vehicles attended. Port Macquarie Fire Service Station Officer Dawn Maynard said the asbestos was contained within the site. "It mainly poses a danger when it is burning and particles escape into the air. When it's damp it is safe," Ms. Maynard said. ASBESTOS UPDATE: Retiree Talks About Valley Forge Contamination --------------------------------------------------------------- Jenny Dehuff of The Times Herald relates that a longtime voice in township matters, Joseph Bartlett, now retired from the township board of supervisors, recently entertained The Times Herald with his institutional knowledge of the brass tacks of Upper Merion Township. From the quieted qualms of Valley Forge asbestos to secrets of the Scouts' jamborees, Bartlett's roots in Upper Merion date back to when he was a land surveyor. He thinks he even may have surveyed the land for The Plaza at King of Prussia and his own house in the 1950s. Bartlett, a Republican, retired in November from the board of supervisors, after a six-year stint. Before that, he chaired the Environmental Advisory Board, a subject, wherein, his true passion lies. He chaired that board for many years, he said, before he realized he wanted to make changes on a bigger scale. With a background in chemistry, Bartlett worked for Gulf Oil Corp. before he retired to teach at Lincoln High School in Northeast Philadelphia. He now teaches evenings at St. Joseph's University -- his alma mater. "I like this, because it keeps me in contact with the kids," he said. Originally from Narberth, Bartlett said he saw some very troubling things going on in the township, which is why he decided to run for supervisor. "I really didn't like the trend that things seemed to be going," he confessed. "I ran for supervisor because I was concerned about maintaining the quality of life we have here in Upper Merion Township. It just seemed to me there was a drift -- more of a concern with procedures and talk and appearances. There was an attitude that anytime anybody wanted to come in and build, there was zero opposition. Build, build, build -- expand Upper Merion. They were turning King of Prussia into a city." Bartlett said there is only about 500 acres of undeveloped land in Upper Merion. "If that's the case, developers can't go out, so they go up. As a result, we have more high rises. They were building houses as fast as the law would allow," he said. Some may not know, said Bartlett, that Valley Forge National Historical Park has a serious asbestos problem. According to him, the Kenne Corporation manufactured insulation materials, some of which contained asbestos in the early years. Trains adjacent to the company carried the materials along railways, where it would often spill onto park land. According to the National Park Service, Valley Forge is considered an asbestos release site, and the Environmental Protection Agency (EPA) conducted emergency response measures that blocked public access to the contaminated area. It has excavated and removed asbestos-contaminated soil for off-site disposal. Signage around the contaminated sites alerts visitors of potential health risks. "Now, who's going to pay for the (cleanup)?" said Bartlett. "A plan, finally approved for Valley Forge park, was to scrape off a foot of soil, put it somewhere, and bring in replacement soil to get us back to ground level. But the logistics to that are amazing, aren't they?" Bartlett described Valley Forge as a "superfund" site -- a location designated by the federal government as a site mandated to be cleaned or at least remediated, under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). These sites are determined to endanger public health or the environment. "Federal EPA rules say, 'it's your property, you are going to pay for the cleanup,' -- or, 'the company that dumped the stuff, get them to pay for it,'" he said. "They finally agreed upon this method to dig up the dirt and take it away, but that's where the process stopped. Valley Forge National Historical Park only became that in 1976. Before that, it was a state park. When it was a state park, that's when the asbestos problems came along. So the feds are saying, it's a national park, a superfund site, but it was your problem, Pennsylvania, when it started. Pennsylvania is saying, 'not us!'" That was one problem Bartlett said he wanted to help mitigate. Another fun fact, he said, was that beneath Valley Forge park lies a water piping system, designed for Boy Scouts jamborees. As many as 50,000 Boy Scouts would trek to the park for jamborees, he said, and the old method of acquiring water -- through a large, canvas sack, called a "water buffalo," -- had proven inefficient. "They put in a water piping system with spigots all over Valley Forge park to help with irrigation, so when the jamboree came, they would have tap water all throughout the park." The shocking thing, he said -- "They've never used those pipes. They've not held a jamboree since." Barlett said he is unaware who paid for that irrigation system, but that board supervisors have largely left the subject alone, since it is out of their hands. The board underwent a political overhaul in November, when it became entirely Democratic -- the first time in nearly 50 years it was not under Republican reign. The grandfather of an autistic girl, Bartlett always wears his autism awareness ribbon on his lapel. The father of a volunteer firefighter, he is a strong supporter of the firefighters. Bartlett lost his wife, Sheila, to cancer a couple years ago. The couple had six children together. "Environmental issues have a direct effect on the quality of life for people here in Upper Merion," he told The Times Herald. "We have a lovely town with an excellent tax structure. The environment is one area where we have to start. We will do this by watching development, by watching possible contaminants, anything that can have an impact upon us. I've lived here a lot of my life, I want it to be a nice place to live, and I'm going to do whatever I can to help it along." ASBESTOS UPDATE: Bags of Toxic Waste Litter Dumped in Barnaby ------------------------------------------------------------- Dave White and Andrea Macpherson of News1130 report that at least six garbage bags holding asbestos, some of them with warning labels, have been dumped on the street in a North Burnaby neighborhood. The bags were lying on Blaine Drive and adjacent alleyways, and some of them were ripped and strewn across the road. The bags were right in front of Rob Vesty's house and he's not happy with what he saw. "We have kids who play in the lane here and I don't know what the fine is, it's probably less than what it cost them to dump it. I don't know how often this happens." They contained a grey-brown substance and markings on the bags labeled the material as asbestos and warned the contents shouldn't be inhaled. The bags were reported on Jan. 7 but may have been there since Jan. 6. Vesty says he and his neighbors complained to the City of Burnaby but the bags were still there when crews showed up just before noon. "I'm surprised nobody saw them because we have a real close-knit neighborhood and people watch out for each other." Those city crews did not show up until after News1130's first story aired late Jan. 9. About 15 minutes after the initial report was broadcast, city work crews showed up. Shortly after that, the RCMP arrived and the road was shut down. The City of Burnaby says it originally knew nothing about the asbestos. "It appears to be asbestos," says acting Mayor Dan Johnston. "But there are several substances that are similar in nature. My understanding is that we have a consultant on site anytime now." Mr.. Johnston claims someone was on scene minutes after the first calls. But photos taken by News1130's reporter just after 11am show the bags sitting completely unattended. Lambert Chu with the city's engineering department says the initial call was only about dumped garbage, and mentioned nothing hazardous. "So we treated it as any dumped garbage on a city right of way," he points out. He adds if the city had known the bags contained asbestos, it would have acted faster. Burnaby Fire Department Chief Shawn Redmond says since the material was secured in a garbage bag, it became more of a disposal concern and less of a health issue. The asbestos was also wet from the rain and the fact it was out in open air lessened any health risk. RCMP say, for now, the incident is being investigated as an abandoned garbage complaint. The person responsible, if ever caught, could be handed a CAD2,000 fine. Until then, taxpayers on the hook for the safe disposal. The cost is unknown. Asbestos has been linked to lung cancer and diseases like mesothelioma. ASBESTOS UPDATE: Tasmania Updates Asbestos Registers State-wide --------------------------------------------------------------- A press release from The Tasmanian Government states that Tasmanian firm Johnstone, McGee and Gandy Pty. Ltd. has been successful in winning a three year tender to update asbestos registers for the Department of Education properties across the state, the Acting Minister for Education and Skills, Brian Wightman said on Tuesday, Jan. 10. "This is a large, State-wide undertaking, with a total of 215 school and college sites, 30 libraries, 127 residences, 18 Polytechnic sites and 15 other sites, including offices, stores, hostels and adult education facilities, to be covered," Mr.. Wightman said. "At each site the register will cover all assets that exist on any campus of the site, comprising buildings, sheds, fences, plant and equipment, switchboards and teaching equipment such as Bunsen burner mats and fume cupboards." Mr.. Wightman said that while DoE properties around the State do currently have asbestos registers, these will be updated and the contract will also inspect and assess the condition of any asbestos to ensure it does not pose any risk. "The Department of Education takes all necessary steps to manage the presence of any asbestos in Tasmanian Government schools and departmental buildings and is committed to ensuring that asbestos continues to be managed in an appropriate manner," Mr. Wightman said. "The updated registers will provide improved information on the presence, awareness and management of asbestos at all DoE sites. "As part of this process, the Department will also enforce a new requirement where all staff are to sign an acknowledgement that they understand that there is an asbestos register at the school. "Clear guidelines for the management of asbestos containing materials have been developed and conveyed to staff. "Any asbestos that exists in areas to be redeveloped, or identified during building works is removed, and all material found to be damaged, or at risk of being damaged, is removed when identified by licensed asbestos contractors." "The Building the Education Revolution (BER) program also saw the removal of significant levels of asbestos from many school buildings, with a total expenditure of approximately CAD6 million on asbestos removal." ASBESTOS UPDATE: Lovett Contracting Inc. Faces EPA Lawsuit ---------------------------------------------------------- Courier-Post Online reports that federal environmental regulators contend asbestos-containing pipes were improperly removed from an industrial site in Gibbstown, N.J. The Environmental Protection Agency says Lovett Contracting Inc. did not take required precautions during demolition of a facility at 200 North Repauno Ave. The site, formerly leased by General Chemical Corp., was razed in 2007. Lovett Contracting also failed to make required notices, the EPA alleges. The agency has sued the firm in federal court in Camden, seeking civil penalties for alleged violations of the Clean Air Act. The demolition work involved about 5,000 linear feet of pipe and some 3,000 linear feet of asbestos-laden pipe insulation, according to the lawsuit. ASBESTOS UPDATE: Abatement in Perth to Be Completed in 1 Month -------------------------------------------------------------- Nikki Hutchinson of The Guardian Express reports that the discovery of asbestos at an East Perth site has resulted in the delay of building works while it is removed. City of Perth acting chief executive Doug Forster said the asbestos-containing-material (ACM) was predominantly traces of old fence sheeting. However, he said the risk to surrounding residents and public was very low. "The asbestos is bonded within the fiber cement sheeting," Mr. Forster said. "Asbestos in these forms is not likely to release appreciable amounts of free asbestos fiber, which presents the main risk from asbestos through inhalation. Mr. Forster said remediation works started at the Goderich Street site on Wednesday, Jan. 4, and would take up to four weeks. "However, the City believes that the most important issue at this time is to address the presence of asbestos and ensure the safety of the community, both now and in the longer term," he said. Mr. Forster said the site remediation works would include the excavation, transport and disposal of ACM-impacted soils to a controlled landfill licensed to accept asbestos waste. He said building works stopped as soon as the sheeting was detected and an environmental consultant was appointed to test the site. "The site has been secured from public access, all works have ceased and the soil was sprayed with a protective layer of hydro mulch to minimize any further disturbance until remediation begins," Mr. Forster said. Mr. Forster said the City promptly notified surrounding residents and businesses about the issue with a letter drop on Dec. 12. A second letter detailing the remedial work, as well as a contact person for any questions, was sent to surrounding residents and businesses on Dec. 22. Mr. Forster said it was likely the asbestos-containing material was buried with other building waste when the houses that used to be at the site were demolished in the 1980s to make way for a car park. "Past demolition and disposal practices for asbestos containing materials have resulted in many sites across Australia being contaminated by ACM," he said. The Key City Worker Development aims to provide affordable rental accommodation in the City and will consist of a three-storey apartment building with 48 units. ASBESTOS UPDATE: Most Claims vs. Bondex & SPHC Remain Stayed ------------------------------------------------------------ Bondex International, Inc. and its parent Specialty Products Holding Corp. are defendants in various asbestos-related bodily injury lawsuits filed in various state courts. These cases generally seek unspecified damages for asbestos-related diseases based on alleged exposures to asbestos-containing products. SPHC is a wholly owned subsidiary of RPM International Inc. Bondex and its parent, SPHC, filed on May 31, 2010, voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the U.S. Bankruptcy Court for the District of Delaware to permanently and comprehensively resolve all pending and future asbestos-related liability claims associated with Bondex and SPHC- related products. As a result of the filing, all Bondex and SPHC asbestos personal injury lawsuits have been stayed due to the imposition of an automatic stay applicable in bankruptcy cases. In addition, at the request of SPHC and Bondex, the Bankruptcy Court has entered orders staying all claims against RPM International Inc. and its affiliates that are derivative of the asbestos claims against SPHC and Bondex, with the exception of certain cases with respect to which the stay was lifted. Through the Chapter 11 proceedings, the filing entities intend ultimately to establish a trust in accordance with section 524(g) of the Bankruptcy Code and seek the imposition of a channeling injunction that will direct all future SPHC-related and Bondex-related claims to the trust. It is anticipated that the trust will compensate claims at appropriate values established by the trust documents and approved by the bankruptcy court. According to RPM International's January 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended November 30, 2011, at this time, it is not possible to predict how long the proceedings will last, the form of any ultimate resolution or when an ultimate resolution might occur. Prior to the bankruptcy filing, the filing entities had engaged in a strategy of litigating asbestos-related products liability claims brought against them. Claims paid during the year ended May 31, 2010, prior to the bankruptcy filing, were $92.6 million, which included defense-related payments during the year of $42.6 million. No claims have been paid since the bankruptcy filing and, with the exception of certain potential payments, it is not contemplated that any claims will be paid until a plan of reorganization is confirmed and an asbestos trust is established and operating. During calendar year 2003, the filing entities' third-party insurers claimed exhaustion of coverage. On July 3, 2003, certain of the Company's subsidiaries, including the filing entities, filed the case of Bondex International, Inc. et al. v. Hartford Accident and Indemnity Company et al., Case No. 1:03-cv-1322, in the United States District Court for the Northern District of Ohio, for declaratory judgment, breach of contract and bad faith against the named third-party insurers, challenging their assertion that their policies covering asbestos-related claims had been exhausted. On December 1, 2008, the trial court denied the plaintiffs' motions for partial summary judgment and granted the defendants' motions for summary judgment against plaintiffs, including the filing entities, and entered judgment on all remaining claims and counterclaims, and dismissed the action. Plaintiffs, including the filing entities, appealed the trial court's decision to the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit affirmed the trial court decision on alternative grounds. Following that ruling, Bondex filed a motion with the Sixth Circuit for reconsideration. Its motion was denied. Bondex has exhausted its rights of appeal. Bondex did not include any potential benefits from the insurance coverage litigation in calculating its asbestos liability. RPM International Inc. was not a party to this insurance litigation. ASBESTOS UPDATE: Calif. Court Dismisses Suit vs. Supro Corp. ------------------------------------------------------------ Richard and Evelyn Spencer appeal from the summary judgment order dismissing their complaint against Supro Corporation, which alleges personal injury claims from Mr. Spencer's alleged on-the- job exposure to asbestos at a construction site during four months between 1959 and 1961. In a Jan. 6, 2012 memorandum and decision, Justice Lawrence D. Rubin of the Court of Appeals of California, Second District, Division Eight, affirmed the summary judgment after finding that the Spencers were not able to show sufficient evidence to permit a trier of fact to find that Mr. Spencer's exposure to asbestos from a Supro product caused his injuries. The mere possibility of exposure to asbestos "does not create a triable issue of fact," Judge Rubin held. Supro, on the other hand, established that the Spencers cannot meet their burden of proof at trial that the company's asbestos products injured Mr. Spencer. The case is Spencer v. Supro Corporation, No. B230680 (Calif.). A copy of Justice Rubin's Decision is available at http://is.gd/YBvuUxfrom Leagle.com The Spencers are represented by: Stephen M. Fishback, Esq. KELLER, FISHBACK & JACKSON 18425 Burbank Blvd., Suite 610 Tarzana, CA 91356 Tel: (818) 342-7442 Fax: (818) 342-7616 E-mail: sfishback@kflegal.com Supro Corporation is represented by: James C. Parker, Esq. Thomas J. Moses, Esq. Erin M. Carpenter, Esq. BRYDON HUGO & PARKER 135 Main Street, 20th Floor San Francisco, CA 94105 Tel: (415) 808-0300 Fax: (415-808-0333 E-mail: jparker@bhplaw.com tmoses@bhplaw.com bbuddell@bhplaw.com ASBESTOS UPDATE: Worker's Suit Survives Motion to Dismiss -------------------------------------------------------- Illinois Central Railroad Company filed a motion to dismiss the complaint filed by a former employee, Walter Fennell, in St. Clair County, Illinois. Mr. Fennell alleged that he suffers from respiratory ailments as a result of exposure to asbestos, diesel exhaust, sand, environmental tobacco smoke, and toxic dusts, fumes, and gases throughout the course of his 37-year career with the company. Illinois Central filed the motion to dismiss on the basis of interstate forum non conveniens. The company said that trial in Mr. Fennell's home county of Copiah County, Mississippi, would be more convenient for all parties. In a Jan. 3, 2012, memorandum and opinion, Justice Melissa A. Chapman of the Appellate Court of Illinois, Fifth District, denied the motion to dismiss finding that Illinois Central has failed to meet its burden of demonstrating that Mr. Fennell's chosen forum is inconvenient to the company and that the company's proposed alternative forum is substantially more convenient for all parties. The Appellate Court initially considered that the transfer of the trial of the case to Mississippi will not unduly burden Mr. Fennell and his counsel. In fact, the Appellate Court held that the need for Mr. Fennell to present medical evidence from his Mississippi medical providers tips the balance very slightly in favor of a Mississippi forum. But the Appellate Court does not believe that Illinois Central carried its burden of demonstrating that this factor strongly favors its chosen forum. The case is Fennell v. Illinois Central Railroad Company, No. 5- 10-0504 (Ill.). A copy of Justice Chapman's Decision is available at http://is.gd/kYNzmxfrom Leagle.com Illinois Central is represented by: Michael C. Hermann, Esq. Thomas R. Peters, Esq. BOYLE BRASHER LLC 5000 West Main St. P.O. Box 23560 Belleville, IL 62223-0560 Tel: (618) 277-9000 Fax: (618) 277-4594 E-mail: mhermann@boylebrasher.com tpeters@boylebrasher.com Mr. Fennell is represented by: William P. Gavin, Esq. GAVIN LAW FIRM #17 Park Place Professional Centre Belleville, IL 62226 Tel: (618) 236-0100 Fax: (618) 236-2684 ASBESTOS UPDATE: Texas Appeals Court Rules in Whistleblower Suit ---------------------------------------------------------------- Mullins v. Dallas Independent School District, No. 05-11-00465-CV (Tex. App. Ct.), involves a claim brought under the Texas Whistleblower Act. James Mullins sued the Dallas Independent School District and asserted various claims based on the termination of his employment with the DISD. Mr. Mullins claimed he was terminated in retaliation for reporting to DISD's Office of Professional Responsibility violations of law by DISD and its employees. Mr. Mullins' past complaints include allegations of, among others, asbestos issues at DISD facilities. A trial court granted the DISD's plea to the jurisdiction and dismissed Mr. Mullins's claim. Mr. Mullins appealed. In a Jan. 5, 2012 memorandum and opinion, Justice Joseph B. Morris of the Court of Appeals of Texas, Fifth District, Dallas, affirmed the trial court's order granting the plea after concluding that Mr. Mullins failed to meet his burden to raise a fact question on the issue of subject matter jurisdiction. Mr. Mullins asserted in his complaint that employees were being forced to work in asbestos hazard areas without the required protective equipment or training. He said this conduct violated both the Occupational Safety and Health Administration and the Clean Air Act. The Appellate Court found that Mr. Mullins makes no argument that OPR had the power to regulate under or enforce any of the statutes or provisions he cites. Nor does he assert that he had a good faith belief that OPR could regulate under or enforce those laws, the Court noted. Mr. Mullins argues only that he believed in good faith that OPR had the power to investigate his allegations and this power made it an appropriate law enforcement authority to which to make his report. The Appellate Court explained that investigatory power may make a governmental entity an appropriate law enforcement authority for purposes of the act only if the plaintiff has reported a violation of criminal law. Furthermore, the criminal conduct reported must be within the investigatory powers of the authority receiving the plaintiff's report or the plaintiff must have a good faith belief that the conduct was within the investigatory powers of the authority to which he reported. Of the provisions cited by Mr. Mullins, only one provision of the Clean Air Act carries any criminal penalties, the Court noted. According to Mr. Mullins, DISD was subject to criminal penalties for failing to follow the asbestos work practice standards adopted by the federal Environmental Protection Agency. Even assuming the conduct Mr. Mullins reported implicated the law he argues was violated, OPR's investigatory authority does not include the power to investigate alleged criminal violations of the Clean Air Act nor did Mr. Mullins have any reasonable belief that it did so, the Appellate Court ruled. A full-text copy of Justice Morris's Decision is available at http://is.gd/uUUD1Kfrom Leagle.com. ASBESTOS UPDATE: GEICO Directed to Reimburse Austin Power --------------------------------------------------------- Weldon Bradley and his wife sued several companies, including Austin Power, Inc., alleging that Weldon was injured by his exposure to the companies' asbestos-containing products and machinery. In the complaint, the Bradleys did not identify the date Weldon's injury occurred. In 2008, a trial court granted summary judgment in favor of Austin Power and dismissed it from the Bradley case. The parties have stipulated that Austin Power incurred $54,706.67 in attorney's fees and costs in defending the Bradley case. Austin Power held a commercial general liability insurance policy issued by the predecessor of GEICO General Insurance Company, covering the period from December 31, 1969, to December 31, 1970. Austin Power demanded reimbursement for its defense costs from GEICO. The trial court in the coverage lawsuit granted traditional summary judgment in favor of Austin Power, denied GEICO's competing summary-judgment motion, and ordered GEICO to pay Austin Power's attorney's fees and costs from the Bradley suit, the coverage suit, and any appeals. GEICO appeals the judgment of the trial court, arguing that because the claim in the Bradley petition lacked a specific temporal factual allegation it was not a potentially covered claim under the insurance policy and thus did not trigger GEICO's duty to defend. In a Jan. 5, 2012 memorandum and opinion, Justice Tracy Christopher of the Court of Appeals of Texas, Fourteenth District, Houston, affirmed the judgment of the trial court after finding that the pleadings in the asbestos lawsuit allege claims that potentially falls within coverage under the insurance policy. Under the policy's terms, GEICO is required to defend Austin against any suits arising from "an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury." The policy period is defined as December 31, 1969, to December 31, 1970. Although in the Bradley case, there is no specific date of injury alleged, the Appellate Court found other indications of time of injury. The Appellate Court held that Austin Power's coverage claim does not depend on extrinsic evidence or on facts that are no encompassed within the factual allegations in the Bradley case. The allegations themselves, when construed liberally in favor of the insured, are sufficient to state a claim that is potentially within the coverage. The case is GEICO General Insurance Company v. Austin Power Inc., No. 14-11-00049-CV (Tex. App. Ct.). A copy of Justice Christopher's Decision is available at http://is.gd/iFDeLCfrom Leagle.com. ********* 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. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. 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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