/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/120217.mbx C L A S S A C T I O N R E P O R T E R Friday, February 17, 2012, Vol. 14, No. 34 Headlines ACCURAY INC: Consolidated Securities Suit Dismissed in December AVX CORP: Class Action Suits Remain Pending in South Carolina BANK OF NEW YORK: State of Oregon Seeks to Co-Lead Class Action BAYER CORP: Calif. Sup. Ct. To Review "Pay-for-Delay" Agreements CARTER'S INC: May 31 Settlement Fairness Hearing Set COMCAST: BThrifty Files Class Action Over Insertable Networks COMPUTER SCIENCES: Motion to Dismiss "Morefield" Remains Pending COMPUTER SCIENCES: Still Awaits Ruling on Bid to Dismiss Suit CVB FINANCIAL: Consolidated Shareholder Class Suit Dismissed DELL INC: Settlement Objectors' Fairness Hearing Bid Rejected DEMANDTEC INC: Signs MOU to Settle IBM Merger-Related Class Suit DIAL CORP: Sued Over Bogus Claims on "Body Wash" Soap DIGI INTERNATIONAL: Remaining Appeal in IPO Suit Dismissed DRYSHIPS INC: Lutovich Law Files Securities Class Action EDUCATION MANAGEMENT: Appeal in "Gaer" Suit Remains Pending FINANCIAL FREEDOM: Sued Over Fraudulent Debt Adjustment Services GERBER PRODUCTS: Sued in California for Deceptive Advertising HECLA MINING: Pomerantz Law Firm Files Securities Class Action HONDA MOTOR: Deadline to Object to Hybrid Settlement Extended INTERNATIONAL GAME: Discovery Still Ongoing in Consolidated Suit INTERNATIONAL GAME: Hearing in "Atlantic" Suit on February 28 INTERNATIONAL GAME: Parties Document "IBEW" Suit Settlement INTL FCSTONE: Discovery in Consolidated Securities Suit Ongoing INTL FCSTONE: Motion to Dismiss Shareholder Suit Still Pending NBTY INC: Awaits Approval of Settlement in "Dirickson" Suit NBTY INC: Awaits Ruling on Bids to Dismiss Glucosamine Suits NBTY INC: Discovery in "Hamilton" Class Suit Still Ongoing NBTY INC: Motion to Dismiss "Hutchins" Suit Remains Pending NETWORK ENGINES: Insurers Paid IPO Suit Plaintiffs Last Month RESERVE BANK: Axed Employees Must File Class Action, Jacob Says SIMILISAN CORP: Sued Over False Claims on Homeopathic Medicines STATE OF NEW YORK: To Face Class Action Over Parole Policy STIHL INC: Recalls 3,000 Chain Saws Due to Risk of Injury WELLS FARGO: Faces RICO Class Action in California XTO ENERGY: Shareholder Class Action Attorneys Get $8.6 Million Asbestos Litigation ASBESTOS UPDATE: Asbestos Workers' Protection Bill Wins Senate ASBESTOS UPDATE: DOE Step Ups Safety at Hanford Site Clean-Up ASBESTOS UPDATE: Toxins Found at Old Hospital Not Major Concern ASBESTOS UPDATE: Widow of Geelong Ex-Worker Sues Alcoa ASBESTOS UPDATE: Wansbeck MP Slams DfE's reaction to APPG's Report ASBESTOS UPDATE: Republicans Block $451,000 Demolition Project ASBESTOS UPDATE: London Subway Workers Raise Exposure Concerns ASBESTOS UPDATE: 4 Lawsuits Filed in St. Louis Circuit Court ASBESTOS UPDATE: Ministry Says Family of Ex-Royal Navy Ineligible ASBESTOS UPDATE: McGill U Probes McDonald Research for Misconduct ASBESTOS UPDATE: Law Firm Updates Web Site for U.S. Army Veterans ASBESTOS UPDATE: Simmons Is Platinum Sponsor to 2012 AIAAC ASBESTOS UPDATE: DNR Likely to Employ Wet Method at Joplin High ASBESTOS UPDATE: James Hardie Pledges AU$109MM to Asbestos Victims ASBESTOS UPDATE: Weitz & Luxenberg Attorney Joins Florida Race ASBESTOS UPDATE: CSUN Has No Plans to Remove Nonfriable Hazmats ASBESTOS UPDATE: Unaware Helensburgh Residents Slams Abatement ASBESTOS UPDATE: McGill U Probe Over Research Criticized ASBESTOS UPDATE: Redwood Elementary Abatement to Last for Month ASBESTOS UPDATE: Pueblo Rep Blows Top on Naval Building Snub ASBESTOS UPDATE: Rise In Usage of Deadly Fibers Alarms Watchdogs ASBESTOS UPDATE: Construction Firm Slapped With GBP10,000 Fine ASBESTOS UPDATE: Tax Office Urged to Pay Up Before March 31 ASBESTOS UPDATE: School Cleaner Acquired Mesothelioma At Work ASBESTOS UPDATE: Thompsons Firm Wins Compensation for Hall Family ASBESTOS UPDATE: Riverwalk Project Needs $600K for Abatement ASBESTOS UPDATE: CPSM Wins Appeal on Clients' Lawsuit vs Kmart ASBESTOS UPDATE: High Court Awards Dying Beeston Man GBP73,890 ASBESTOS UPDATE: Loring Park Project Receives $345.3K in Grants ASBESTOS UPDATE: Westmount Firm Sends SOS to Ottawa Officials ASBESTOS UPDATE: "Properly Worded Language" on Gillon v. CSX Case ASBESTOS UPDATE: Turin Court Issues Ruling in Eternit Case ASBESTOS UPDATE: Safety Maintained at Kingston Foreshore Clean-up ASBESTOS UPDATE: Titan Environmental Sets Up Anaheim Operations ASBESTOS UPDATE: Contaminants in Grapevine Water Pumping Plant ASBESTOS UPDATE: 3M Company, 72 Others Face Mesothelioma Lawsuit ASBESTOS UPDATE: Real Estate Bigwigs Breach Environmental Laws ASBESTOS UPDATE: Conn. Court Affirms Liability Ruling v. Barney ASBESTOS UPDATE: Oregon Court Reverses Ruling vs. Lexington ASBESTOS UPDATE: Delaware Court Junks Suit v. Arkema ASBESTOS UPDATE: Calif. Court Affirms $10-Mil. Ruling v. Lone Star ASBESTOS UPDATE: NY Ct. Junks Motion to Supplement Record as Moot ASBESTOS UPDATE: Ohio Court Dismisses Inmate's Exposure Claims ASBESTOS UPDATE: NY Court Drops Punitive Damages Award v. Fisher ASBESTOS UPDATE: Meritor's Maremont Has $75MM Reserves at Dec. 31 ASBESTOS UPDATE: Meritor Unit Still Faces Rockwell-Related Suits ASBESTOS UPDATE: Meritor's Appeal From $4.5MM Award Still Pending ASBESTOS UPDATE: GenCorp Has 146 Cases Pending at Nov. 30 ASBESTOS UPDATE: Scotts Miracle-Gro Still Defends Exposure Cases ASBESTOS UPDATE: Cabot Corp. Still Faces Exposure Claims ASBESTOS UPDATE: Rockwell Automation Continues to Defend PI Suits ASBESTOS UPDATE: Consol Energy's Unit Still Faces 7,500 Claims ********* ACCURAY INC: Consolidated Securities Suit Dismissed in December --------------------------------------------------------------- The U.S. District Court for the Northern District of California issued its final judgment and order of dismissal of a consolidated securities lawsuit in December 2011, according to Accuray Incorporated's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On July 22, 2009, a securities class action lawsuit was filed in the U.S. District Court for the Northern District of California against the Company and certain of its current and former directors and officers. On August 7, 2009, and August 9, 2009, two securities class action complaints, both similar to the one filed on July 22, 2009, were filed against the same defendants in the same court. These three actions were consolidated. The consolidated complaint generally alleges that the Company and the individual defendants made false or misleading public statements regarding its operations and seek unspecified monetary damages and other relief. On August 31, 2010, the Court granted defendants' motion to dismiss the consolidated complaint and granted plaintiffs leave to file an amended complaint. On September 27, 2010, plaintiffs filed an amended complaint. The amended complaint names the Company and certain of its current and former officers and directors as defendants and generally alleges that the defendants made false or misleading public statements regarding its operations. The amended complaint seeks unspecified monetary damages and other relief. Defendants filed a motion to dismiss the amended complaint. On April 28, 2011, the parties filed a stipulation of settlement with the court, providing for the settlement of the litigation for a payment of $13.5 million which will be covered by insurance. The court preliminarily approved the settlement on June 10, 2011. A hearing on the terms of the settlement was held on September 1, 2011. On December 8, 2011, the Court issued its final judgment and order of dismissal with prejudice. Accuray Incorporated designs, develops and sells the CyberKnife system, which is an image-guided robotic radiosurgery system used for the treatment of solid tumors anywhere in the body. AVX CORP: Class Action Suits Remain Pending in South Carolina ------------------------------------------------------------- There are two lawsuits pending with respect to property adjacent to AVX Corporation's Myrtle Beach, South Carolina factory claiming property values have been negatively impacted by alleged migration of certain pollutants from the Company's property. On November 27, 2007, a lawsuit was filed in the South Carolina State Court by certain individuals as a class action. Another lawsuit is a commercial lawsuit filed on January 16, 2008, in South Carolina State Court. Both of these lawsuits are pending. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. The Company says it intends to defend vigorously the claims that have been asserted in these two lawsuits. At this stage of the litigation, there has not been a determination as to responsible parties or the amount, if any, of damages. In light of the foregoing, the Company is not able to estimate any amount of loss or range of loss. No accrual for costs has been recorded and the potential impact of these cases on the Company's financial position, results of operations, and cash flows cannot be determined at this time. BANK OF NEW YORK: State of Oregon Seeks to Co-Lead Class Action --------------------------------------------------------------- Portland Business Journal reports that Oregon is seeking to co-lead a class action lawsuit against the Bank of New York Mellon Corp. over alleged currency exchange manipulation. The suit seeks to recover at least $15.7 million that the Oregon Common School Fund and Oregon Public Employees Retirement Fund lost as a result of the alleged scheme. According to a press release from Oregon Treasurer Ted Wheeler and Attorney General John Kroger, the losses were triggered by the manipulation of foreign currency exchange rates that came to light after whistleblowers accused BNY Mellon of rigging prices to obtain higher profits. The lawsuit alleges that instead of buying and selling foreign currency at the "best execution standards," as promised, BNY Mellon would charge clients the least favorable rates and pocket the difference in profits. Oregon did not have any foreign currency transactions through BNY Mellon. However, according to Wheeler and Kroger, the Common School Fund and Oregon Public Employee Retirement Fund were damaged because the fraudulent practices and subsequent outrage caused the value of Oregon's holdings of BNY Mellon stock to plummet. The Oregon State Treasury and Oregon Investment Council bought and sold shares in BNY Mellon between April 2008 and June 2011 on behalf of the funds. In that span, the value of those shares declined by 41 percent. The Public Employees Retirement Fund lost more than $14.5 million and the Oregon Common School Fund lost approximately $1.2 million. BAYER CORP: Calif. Sup. Ct. To Review "Pay-for-Delay" Agreements ------------------------------------------------------------------ The California Supreme Court on February 15 agreed to review whether California's antitrust laws were violated by a nearly $400 million payoff by Bayer Corporation to several generic drug manufacturers for the explicit purpose of preventing the introduction into the market of generic versions of Bayer's antibiotic Cipro. "With prescription drug prices continuing their unchecked rise, drug companies owning prescription drug patents must not be permitted to suppress competition by buying off their would-be rivals," stated Lieff Cabraser attorney Joseph R. Saveri, counsel for a certified class of California consumers, union health and welfare funds, and others who overpaid for Cipro. "We are grateful that the California Supreme Court will review this case and look forward to arguing that these collusive agreements violate California's antitrust laws." From 1997 to 2004, Bayer signed exclusionary reverse payment agreements with Barr Laboratories under which Barr agreed not to sell a generic version of Cipro. The agreements allowed Bayer to foreclose competition by sh aring its monopoly profits from Cipro with potential competitors. Bayer paid $398.1 million to Barr and other potential competitors who make generic drugs, preserving branded Cipro as the only choice for consumers and thereby maintaining, and even increasing, its cost. Bayer's agreement with generic drug manufacturers to keep generic Cipro off the market was the largest "pay-for-delay deal" of all time. Bayer and the generic companies contend that California's antitrust law does not prohibit such agreements. The United States Department of Justice, the Federal Trade Commission, California Attorney General Kamala Harris, and numerous other Attorneys General, as well as academics and commentators throughout the country agree that that these types of deals are anticompetitive and should not be permitted. In particular, California Attorney General Kamala Harris and the American Antitrust Institute submitted letters strongly supporting review of this case, which presents issues of first impression in California. The four Justices whose names appear on the order are Justices Kathryn M. Werdegar, Ming W. Chin, Carol A. Corrigan, and Goodwin Liu. In addition to Lieff Cabraser's Joseph Saveri, Dan Drachler of the Seattle, Washington, law firm Zwerling, Schachter & Zwerling, LLP, and Ralph Kalfayan of Krause, Kalfayan, Benink & Slavens, LLP, located in San Diego, California, serve as counsel for plaintiffs and appellants. CARTER'S INC: May 31 Settlement Fairness Hearing Set ---------------------------------------------------- Summary Notice of Pendency of Class Action and Proposed Partial Settlement and Motion for Attorneys' Fees and Expenses UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA Civil Action No. 1:08-CV-2940-AT In re Carter's Inc. Securities Litigation TO: ALL PERSONS WHO PURCHASED THE PUBLICLY TRADED SECURITIES OF CARTER'S, INC. DURING THE PERIOD FROM MARCH 16, 2005 THROUGH NOVEMBER 10, 2009, INCLUSIVE, AND WERE ALLEGEDLY DAMAGED THEREBY (THE "SETTLEMENT CLASS"). YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the Court, that the above- captioned action has been preliminarily certified as a class action for settlement purposes only and that a partial settlement for $20 million has been proposed with Carter's, Inc., Frederick J. Rowan, II, Joseph Pacifico, Michael D. Casey, Andrew North, Charles E. Whetzel, Jr., and Joseph M. Elles (collectively, the "Settling Defendants"). The case will continue against defendant PricewaterhouseCoopers LLP. A hearing will be held before the Honorable Amy Totenberg of the United States District Court for the Northern District of Georgia in the Richard B. Russell Federal Building and United States Courthouse, 75 Spring Street, SW, Atlanta, GA 30303-3309, at 11:00 a.m., on May 31, 2012, in Courtroom 2308 to, among other things, determine whether the proposed settlement should be approved by the Court as fair, reasonable and adequate, determine whether the proposed plan of allocation for distribution of the settlement proceeds should be approved as fair and reasonable, and to consider the application of Lead Counsel for attorneys' fees and reimbursement of expenses. The Court may change the date of the hearing without providing another notice. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS DESCRIBED ABOVE, YOUR RIGHTS WILL BE AFFECTED AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT PROCEEDS. If you have not yet received the full printed Notice of Pendency of Class Action and Proposed Partial Settlement and Motion for Attorneys' Fees and Expenses ("Notice") and a Proof of Claim and Release form ("Proof of Claim"), you may obtain copies of these documents by contacting the Claims Administrator, Epiq Systems, Inc. at: In re Carter's, Inc. Securities Litigation Claims Administrator P.O. Box 5110 Portland, OR 97208-5110 Telephone: (866) 833-7918 Web site: http://www.carterssecuritieslitigation.com The Claims Administrator can also help you if you have questions about these documents. Inquiries, other than requests for the forms of Notice and Proof of Claim or the status of a claim, may be made to Lead Counsel: Labaton Sucharow LLP Jonathan Gardner, Esq. 140 Broadway New York, NY 10005 Telephone: (888) 219-6877 Web site: http://www.labaton.com If you are a Settlement Class Member, to be eligible to share in the distribution of the settlement proceeds you must submit a Proof of Claim postmarked no later than June 1, 2012. To exclude yourself from the Settlement Class, you must submit a written request for exclusion in accordance with the instructions set forth in the Notice such that it is received or postmarked no later than May 10, 2012. If you are a Settlement Class Member and do not exclude yourself from the Settlement Class, you will be bound by the Final Order and Judgment of the Court. Any objections to the Settlement, plan of allocation or Lead Counsel's application for attorneys' fees and reimbursement of expenses must be filed with the Court and served on counsel for the Settling Parties in accordance with the instructions set forth in the Notice, such that they are received or postmarked no later than May 10, 2012. If you are a Settlement Class Member and do not submit an acceptable Proof of Claim, you will not share in the Settlement but you nevertheless will be bound by the Final Order and Judgment of the Court. Further information may be obtained by contacting the Claims Administrator. Dated: February 14, 2012 By Order of The Court United States District Court Northern District of Georgia COMCAST: BThrifty Files Class Action Over Insertable Networks ------------------------------------------------------------- BThrifty has filed a lawsuit seeking class action certification against Comcast. Comcast Spotlight starting in 2002 and up until at least 2009 offered and sold to advertisers what they call their "40 insertable networks". Comcast claimed that an advertiser could choose any of the "select 40" networks to have their commercial aired in all regions simultaneously. BThrifty in accordance with their normal internal audit practice of Comcast's "Affidavit of Performance" discovered certain cable networks were NOT insertable. A Comcast representative eventually acknowledged one. In a lawsuit filed against Comcast, pending in the Connecticut Superior Court, it is alleged that Comcast did not, in fact, have full insertable capability for certain networks. BThrifty said "We believe there may be several thousand advertisers that were charged for commercials that did not run in all regions. BThrifty expressed concern that to date Comcast may not as yet have notified any of their advertisers or Ad agencies of this situation. BThrifty believes that the total overcharges as a result of the alleged failure to provide full insertability could amount to many millions of dollars." COMPUTER SCIENCES: Motion to Dismiss "Morefield" Remains Pending ---------------------------------------------------------------- On May 29, 2009, a class action lawsuit entitled Shirley Morefield vs. Computer Sciences Corporation, et al., Case # A-09-591338-C, was brought in state court in Clark County, Nevada, against the Company and certain current and former officers and directors asserting claims for declarative and injunctive relief related to stock option backdating. The alleged factual basis for the claims is the same as that which was alleged in a prior derivative case, In re CSC Shareholder Derivative Litigation, CV 06-5288, filed in U.S. District Court in Los Angeles, which was dismissed on August 9, 2007, by such court. This dismissal was affirmed on appeal by the Ninth Circuit, which judgment is final. The defendants in the Morefield case deny the allegations in the complaint. On June 30, 2009, the Company removed the case to the United States District Court for the District of Nevada, Case No. 2:09-cv-1176-KJD-GWF. On motion made by the plaintiffs, the District Court remanded the case to state court on February 18, 2010. Defendants filed a motion to dismiss on April 30, 2010, and plaintiffs filed their opposition on June 14, 2010. A hearing took place on August 18, 2010. A decision is pending. The Company says it is not possible to make reasonable estimate of the amount or range of loss, if any, that could result from this matter at this time. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 30, 2011. COMPUTER SCIENCES: Still Awaits Ruling on Bid to Dismiss Suit ------------------------------------------------------------- Between June 3, 2011, and July 21, 2011, four putative class action complaints were filed in the United States District Court for the Eastern District of Virginia, entitled City of Roseville Employee's Retirement System v. Computer Sciences Corporation, et al. (No. 1:11-cv-00610-TSE-IDD), Murphy v. Computer Sciences Corporation, et al. (No. 1:11-cv-00636-TSE-IDD), Kramer v. Computer Sciences Corporation, et al. (No. 1:11-cv-00751-TSE-IDD) and Goldman v. Computer Sciences Corporation, et al. (No. 1:11-cv- 777-TSE-IDD). On August 29, 2011, the four actions were consolidated as In re Computer Sciences Corporation Securities Litigation (No. 1:11-cv-610-TSE-IDD) and Ontario Teachers' Pension Plan Board was appointed lead plaintiff. A consolidated class action complaint was filed by plaintiff on September 26, 2011, and names as defendants CSC, Michael W. Laphen, Michael J. Mancuso and Donald G. DeBuck. A corrected complaint was filed on October 19, 2011. The complaint alleges violations of the federal securities laws in connection with alleged misrepresentations and omissions regarding the business and operations of the Company. Specifically, the allegations arise from the Company's disclosure of the Company's investigation into certain accounting irregularities in the Nordic region and its disclosure regarding the status of the Company's agreement with NHS. Among other things, the plaintiff seeks unspecified monetary damages. The plaintiff filed a motion for class certification with the court on September 22, 2011, and the defendants filed a motion to dismiss on October 18, 2011. Both motions are fully briefed, a hearing was held on November 4, 2011, and the motions are now pending before the court. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 30, 2011. The defendants deny the allegations and intend to defend their position vigorously. It is not possible to make reasonable estimates of the amounts or range of losses that could result from this matter at this time. CVB FINANCIAL: Consolidated Shareholder Class Suit Dismissed ------------------------------------------------------------- The class action lawsuit against CVB Financial Corp., which sought to draft onto the investigation of the U.S. Securities and Exchange Commission, was dismissed in its entirety by the federal court in Los Angeles, according to the Company's February 7, 2012, Form 8-K filing with the SEC. However, the Company says, an amended and restated complaint by the plaintiffs is possible. As previously reported, on August 23, 2010, a purported shareholder class action complaint was filed against the Company in an action captioned Lloyd v. CVB Financial Corp., et al., Case No. CV 10-06256-MMM, in the United States District Court for the Central District of California. Along with the Company, Christopher D. Myers (President and Chief Executive Officer) and Edward J. Biebrich Jr. (former Chief Financial Officer) were also named as defendants. On September 14, 2010, a second purported shareholder class action complaint was filed against the Company in an action originally captioned Englund v. CVB Financial Corp., et al., Case No. CV 10-06815-RGK, in the United States District Court for the Central District of California. The Englund complaint named the same defendants as the Lloyd complaint and made allegations substantially similar to those included in the Lloyd complaint. On January 21, 2011, the Court consolidated the two actions for all purposes under the Lloyd action now captioned as Case No. CV 10-06256-MMM (PJWx). That same day, the Court also appointed the Jacksonville Police and Fire Pension Fund (the "Jacksonville Fund") as lead plaintiff and approved the Jacksonville Fund's selection of lead counsel. On March 7, 2011, the Jacksonville Fund filed a consolidated complaint naming the same defendants and alleging violations by all defendants of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder and violations by the individual defendants of Section 20(a) of the Exchange Act. Specifically, the complaint alleges that defendants misrepresented and failed to disclose conditions adversely affecting the Company throughout the purported class period, which is alleged to be between October 21, 2009, and August 9, 2010. The complaint seeks compensatory damages and other relief in favor of the purported class. On May 13, 2011, defendants filed a motion to dismiss the consolidated complaint. Following the filing by each side of supplemental motions and memoranda, the District Court conducted a hearing on August 29, 2011. DELL INC: Settlement Objectors' Fairness Hearing Bid Rejected ------------------------------------------------------------- David Lee at Courthouse News Service reports that the 5th Circuit rejected two appeals from objectors to a $40 million securities fraud settlement between Dell computer and a class of investors. In a unanimous ruling, a three-judge panel agreed with the Austin Federal Court's denial of motions to reconvene a fairness hearing, issue additional notice to the class, and extend the time for filing claims. Judge Patrick Higginbotham wrote that an additional fairness hearing was not necessary. "In this case, the fairness hearing lasted over three hours, and the objectors presented argument and conducted cross-examination," Judge Higginbotham wrote. "Their request to 'continue' the fairness hearing is based on two documents submitted after the fairness hearing: (1) class counsel's receipts for expenses and (2) a declaration of the claims administrator's vice president of operations. But '[a] district court is not required to hold a hearing on a motion for attorneys' fees in a class action,' and there is even less reason to require one on receipts for attorneys' expenses. Furthermore, the Schuleman objectors were not entitled to live testimony and cross-examination of all declarants. A fairness hearing is not a trial. 'Historically, courts have commonly relied on affidavits, declarations, arguments made by counsel, and other materials in the record without also requiring live testimony.' The district court denied the objectors' request because, in its judgment, the objectors 'were afforded full opportunity at the [fairness] hearing to present their objections and remedies.' They have presented no reason to conclude that this judgment was an abuse of discretion." Judge Higginbotham said that the lower court's decision not to reissue notice or reopen the filing period was correct, that no rules or due process violations took place. "First, during the filing period, class members did not know with certainty whether the de minimis provision would apply to them. The amount to be paid out per share depended on the total number of claims filed, something no class member could know during the filing period," Judge Higginbotham wrote. "Second, the notice explicitly informed the class members that (1) the plan of allocation was still subject to court approval, (2) the plan could be modified in a way that would affect their personal recovery, and (3) they would not necessarily receive notice of any such changes. The notice was sent to all potential class members, regardless of how much stock they owned, and warned that by doing nothing, they would give up their rights and get no payment. Finally, the objectors point to no cases requiring a second round of notice to class members, nor an extended filing deadline, when a plan of allocation is amended." The court also disagreed with the argument that the $7.2 million in attorney's fees were not excessive, that interest was correctly awarded and that the correct method was used to come to that amount. "Without citing law, the Schuleman objectors contend that the fee award of 18% is 'excessive' because the case was dismissed prior to discovery," Judge Higginbotham wrote. "The district court arrived at 18% by looking to class counsel's retainer agreement, which provided for a fee of 18% to 25% of any common fund. Noting the lead plaintiff's sophistication, the district court held that the class counsel's requested 25% fee was 'entitled to a presumption of reasonableness.' The court still opted to adjust the requested award downward to 18%, the lower end of the range in the retainer, reasoning that 18% compensated counsel while protecting the class's interests and accounting for [other] factors. The court explicitly considered the amount and sources of discovery in reaching its decision, and the objectors concede that the district court 'correctly used the [other] factors to help determine a reasonable fee.' That much of counsel's efforts were outside of formal discovery processes does not render them irrelevant. There is no basis here for concluding that the district court abused its discretion in setting the amount of attorneys' fees." A copy of the decision in Union Asset Management Holding A.G. v. Dell, Inc., et al., Nos. 08-51163, 10-50688 (5th Cir.), is available at: http://www.courthousenews.com/2012/02/14/FifthDell.pdf DEMANDTEC INC: Signs MOU to Settle IBM Merger-Related Class Suit ---------------------------------------------------------------- DemandTec, Inc. entered into a memorandum of understanding to resolve a putative class action lawsuit arising from its proposed acquisition by International Business Machines Corporation, according to the Company's February 8, 2012, Form 8-K filing with the U.S. Securities and Exchange Commission. On February 8, 2012, DemandTec entered into a memorandum of understanding with plaintiff and other named defendants regarding the settlement of a putative class action lawsuit filed in the Superior Court of California, Santa Clara County (the "Court"), as well as the settlement of all related claims that were or could have been asserted in other actions, in response to the announcement of the execution of an Agreement and Plan of Merger, dated as of December 7, 2011 (the "Merger Agreement"), by and between DemandTec, International Business Machines Corporation ("IBM") and Cudgee Acquisition Corp., a wholly-owned subsidiary of IBM. Pursuant to the Merger Agreement, DemandTec will become a wholly owned subsidiary of IBM (the "Merger"). As described in further detail in the definitive proxy statement dated January 12, 2012 (the "Proxy Statement"), a purported stockholder of DemandTec filed a class action lawsuit in the Court, captioned Strategic Trading Company v. Daniel R. Fishback, et al., Case No. 112CV216048 (Cal. Sup. Ct.) (the "Lawsuit"). The Lawsuit names DemandTec, its directors, IBM and Cudgee Acquisition Corp. as defendants. Under the terms of the MOU, DemandTec, the other defendants and the plaintiff have agreed to settle the Lawsuit and release the defendants from all claims relating to the Merger, subject to approval by the Court. If the Court approves the settlement contemplated by the MOU, the Lawsuit will be dismissed with prejudice. Pursuant to the terms of the MOU, DemandTec has agreed to make available additional information to its stockholders. Defined terms used but not defined herein have the meanings set forth in the Proxy Statement. In return, the plaintiff has agreed to dismissal of the Lawsuit with prejudice and to withdraw all motions filed in connection with the Lawsuit. If the MOU is finally approved by the Court, it is anticipated that the MOU will resolve and release all claims in all actions that were or could have been brought challenging any aspect of the Merger, the Merger Agreement and any disclosures made in connection therewith. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the Court will approve the settlement, even if the parties were to enter into such stipulation. In such event, the proposed settlement as contemplated by the MOU may be terminated. The settlement will not affect the consideration to be paid to DemandTec's stockholders in connection with the Merger or the timing of the special meeting of DemandTec's stockholders, which is scheduled for February 14, 2012, in Redwood City, California, to consider and vote upon a proposal to approve the Merger Agreement, among other things. DemandTec and the other defendants have vigorously denied, and continue to vigorously deny, any wrongdoing or liability with respect to the facts and claims asserted, or which could have been asserted, in the Lawsuit, including that they have committed any violations of law or breach of fiduciary duty, that they have acted improperly in any way, or that they have any liability or owe any damages of any kind to plaintiff or to the purported class, and specifically deny that any further supplemental disclosure is required under any applicable rule, statute, regulation or law or that the DemandTec directors failed to maximize stockholder value by entering into the merger agreement with IBM and Cudgee Acquisition Corp. The settlement contemplated by the agreement in principle is not, and should not be construed as, an admission of wrongdoing or liability by any defendant. However, to avoid the risk of delaying the Merger, and to provide additional information to DemandTec's stockholders at a time and in a manner that would not cause any delay of the Merger, DemandTec and its directors agreed to the settlement. The parties considered it desirable that the action be settled to avoid the substantial burden, expense, risk, inconvenience and distraction of continued litigation and to fully and finally resolve the matter. DIAL CORP: Sued Over Bogus Claims on "Body Wash" Soap ----------------------------------------------------- Matt Reynolds at Courthouse News Service reports that Dial pushes its "Body Wash" soap with bogus claims that it contains pheromones that attract women, a customer claims in a federal class action. Lead plaintiff Frank Ortega says: "On defendants' promotional web site about the products, defendants state: 'We're not saying that our new pheromone-enhanced body wash will cause you to be attacked by hordes of sex-crazed females, but if that is your endgame, you should consider it a piece of the equation not to be ignored.'" The complaint continues with a list alarming claims that Dial makes for its soap: "Defendants' claim the pheromone androstadienone is in the products. Defendants do not inform consumers of whether the androstadienone in the Products is synthetic or real. Androstadienone is a normally occurring pheromone in human body sweat. . . . "Defendants products' Web site represents, via an animated singing molecule, that after a woman senses a man's pheromones with her vomeronasal organ, she responds by releasing catecholamine, which triggers dopamine release, making her more sexually receptive to men. "Defendants' representations about androstadienone are, in fact, false, deceptive and misleading because, among other reasons, human beings do not possess a functioning vomeronasal organ. "Further, the few studies about androstadienone that resulted in an effect on female attraction were small, poorly designed, and used concentrations of the ingredient as much as a million times higher than what occurs naturally." Mr. Ortega sued The Dial Corp., Henkel Consumer Goods, and two other Henkel entities. He wants them enjoined from continuing their "deceptive and false advertising message." Dial advertises its soap with a number of attention-grabbing phrases, the complaint states, including "Pheromone-Infused, Attraction Enhancing Body Wash," and "Magnetic." The ads state: "'You don't need the help, but it doesn't hurt to increase your odds. Dial(R)for Men Magnetic"! body wash is clean rinsing and moisture rich, so you get a great clean without drying your skin, and leaves you smelling so good women can't help but notice,'" according to the complaint. The complaint continues: "The back of the Products' label, under Directions, states '1. Squeeze Magnetic body wash onto a washcloth, sponge, poof, hands -- whatever. 2. Lather up. 3. rinse off. 4. Stand back and watch the magic happen.'" Mr. Ortega seeks an injunction, corrective advertising, costs, and damages for consumer law violations and unfair competition. Henkel did not immediately respond to a request for comment. A copy of the Complaint in Ortega v. The Dial Corporation, et al., Case No. 12-cv-00361 (S.D. Calif.), is available at: http://www.courthousenews.com/2012/02/14/Dial.pdf The Plaintiffs are represented by: Craig Sean Mellon, Esq. 700 W Harbor Dr#401 San Diego, CA 92101 Telephone: (619) 884-8525 E-mail: eris.llc@gmail.com - and - Jeffrey M. Salas, Esq. John C. Wang, Esq. SALAS WANG LLC 155 N. Wacker Drive, Suite 4250 Chicago, IL 60606 E-mail: jsalas@salaswang.com jwang@salaswang.com DIGI INTERNATIONAL: Remaining Appeal in IPO Suit Dismissed ---------------------------------------------------------- The last remaining appeal from the approval of a settlement agreement resolving a consolidated class action lawsuit involving Digi International Inc., has been dismissed with prejudice, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On April 19, 2002, a consolidated amended class action complaint was filed in the United States District Court for the Southern District of New York asserting claims relating to the initial public offering ("IPO") of the Company's subsidiary NetSilicon, Inc. and approximately 300 other public companies. The Company acquired NetSilicon on February 13, 2002. The complaint named the Company as a defendant along with NetSilicon, certain of its officers and certain underwriters involved in NetSilicon's IPO, among numerous others, and asserted, among other things, that NetSilicon's IPO prospectus and registration statement violated federal securities laws because they contained material misrepresentations and/or omissions regarding the conduct of NetSilicon's IPO underwriters in allocating shares in NetSilicon's IPO to the underwriters' customers. The Company believed that the claims against the NetSilicon defendants were without merit and the Company defended the litigation vigorously. Pursuant to a stipulation between the parties, the two named officers were dismissed from the lawsuit, without prejudice, on October 9, 2002. As previously disclosed, the parties advised the District Court on February 25, 2009, that they had reached an agreement-in-principle to settle the litigation in its entirety. A stipulation of settlement was filed with the District Court on April 2, 2009. On June 9, 2009, the District Court preliminarily approved the proposed global settlement. Notice was provided to the class, and a settlement fairness hearing, at which members of the class had an opportunity to object to the proposed settlement, was held on September 10, 2009. On October 6, 2009, the District Court issued an order granting final approval to the settlement. Ten appeals were filed objecting to the definition of the settlement class and fairness of the settlement. Five of those appeals were dismissed with prejudice on October 6, 2010. On May 17, 2011, the Court of Appeals dismissed four of the remaining appeals. On January 10, 2012, the last remaining appeal was dismissed with prejudice, as a result of which the settlement became final, by its terms. Under the settlement, the Company's insurers are to pay the full amount of settlement share allocated to the Company, and it would bear no financial liability beyond its deductible of $250,000 per claim. As of December 31, 2011, the Company has an accrued liability for the final settlement of $300,000 and a receivable related to the insurance proceeds of $50,000. This $50,000 represents the anticipated settlement of $300,000 less the Company's $250,000 deductible. The Company may also be reimbursed for all or part of the deductible from the Company's insurers, which may reduce the ultimate cost to the Company in the future. DRYSHIPS INC: Lutovich Law Files Securities Class Action -------------------------------------------------------- Lutovich Law LLC disclosed that a class action lawsuit, case no. 4:12-cv-00130-JCH, Rabbani v. DryShips, et.al., has been filed in the United States District Court for the Eastern District of Missouri on behalf of purchasers of DryShips Inc. who purchased shares between December 1, 2008 and December 31, 2010, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934 and the Securities Act of 1933. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from February 13, 2012. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel Julia Lutovich, at 314-898-3054 or via e-mail at julia.lutovich@lutovichlaw.com Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice or may choose to do nothing and remain an absent class member. This action involves a series of materially false and misleading statements and omissions by DryShips, its officers and executives in connection with (i) DryShips' spin-off of 100% wholly owned subsidiary of DryShips', Primelead Shareholders Inc., later renamed Ocean Rig UDW; (ii) DryShips' financial health and (iii) its ability to comply with loan covenants. Furthermore, this complaint alleges that plaintiffs suffered serious harm as a result of number of violations of law committed by DryShips' officers and directors, and by violations of law committed by officers and directors of Merrill Lynch & Co. and Deutsche Bank AG who acted as underwriters for secondary stock offerings. This complaint further alleges that it was entirely foreseeable to DryShips, its officers and executives, as well as the DryShips Board that concealing from investors (i) DryShips deteriorating financial condition, (ii) DryShips intent to raise equity, (iii) the circumstances surrounding the spin-off and/or IPO, including DryShips' ability to secure charters and financing, would artificially inflate the price of DryShips common stock. Plaintiff alleges that it was similarly foreseeable that the ultimate disclosure of this information and, in particular, the truth about DryShips' ability to comply with its loan covenants and drillships IPO, would cause the price of DryShips' securities to drop significantly as the inflation caused by their earlier misstatements was removed from stock. Lutovich Law, LLC is a St. Louis, Missouri law firm that represents shareholders and investors in litigation, including shareholder class action and derivative litigation. EDUCATION MANAGEMENT: Appeal in "Gaer" Suit Remains Pending ----------------------------------------------------------- On August 11, 2010, a securities class action complaint captioned Gaer v. Education Management Corp., et. al was filed against the Company, certain of its executive officers and directors, and certain underwriters of the Company's initial public offering. The complaint alleges violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Exchange Act of 1934 due to allegedly false and misleading statements in connection with the Company's initial public offering and the Company's subsequent press releases and filings with the Securities and Exchange Commission. On November 10, 2010, the District Court granted the Oklahoma Police Pension and Retirement System's motion to serve as lead plaintiff in the lawsuit. On January 10, 2011, the lead plaintiff and the Southeastern Pennsylvania Transportation Authority filed an Amended Class Action Complaint with the Court alleging similar violations of Section 11, 12(a)(2) and 15 of the Securities Act of 1933 and Section 10(b) and 20(a) of the Exchange Act of 1934 and adding one additional individual defendant and other underwriters from the Company's initial public offering. On September 29, 2011, the District Court granted the Company's motion to dismiss the case with prejudice. The plaintiffs have appealed the District Court's dismissal of the lawsuit to the Third Circuit Court of Appeals. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. FINANCIAL FREEDOM: Sued Over Fraudulent Debt Adjustment Services ---------------------------------------------------------------- Lisa Coston at Courthouse News Service reports that Phoenix-based Financial Freedom Southwest, a so-called "debt adjuster," defrauds people of thousands of dollars in fees, without providing the "almost magical" services it promises, a woman claims in a class action. Cynthia Snyder sued Financial Freedom Southwest and its founder and owner, Malcolm Giles, of Scottsdale, Ariz., in Carroll County Superior Court. Ms. Snyder, who owed more than $55,000 to 15 credit card companies, claims that of the $14,969 she paid to Financial Freedom, it took $4,349 for itself. [The fees come to 29 percent of Snyder's payments. The complaint erroneously calculates the fees as 41 percent: $4,349 of the $10,620 that Snyder says Financial Freedom did distribute to her creditors.] In her complaint, Ms. Snyder says she found Financial Freedom Southwest through the Internet as she was struggling to pay her debts. She claims the defendants target "Georgia's most financially desperate individuals struggling under the crushing weight of what appears to be insurmountable consumer debt. Looking for a miracle, or at least an alternative to avoid the stigma of bankruptcy, these Georgia citizens are most vulnerable to defendants' siren song of virtually instant relief." The complaint adds: "Defendants go so far as to claim 'something almost magical about [their] simple approach' which 'will obtain better results than [the debtor] could ever obtain on [their] own.'" Ms. Snyder says Financial Freedom and Mr. Giles claim "that through their many years of experience, their connections in the credit industry and their financial savvy, defendants can dramatically lower the client's bills and get the client out of debt much faster than any other service can provide, and for as little as 40 cents on the dollar of the debt actually owed." Actually, according to the complaint, the defendants did not settle for 40 cents on the dollar but took almost 30 cents of every dollar she paid on her debts. Over 36 months, Ms. Snyder says, she paid more than $14,000 for a set-up fee, an enrollment fee, a monthly membership fee, and a monthly "set aside" fee. "From March 2002 to August 2006, defendants collected $14,969.00 from plaintiff and retained $4,349 of this amount in debt adjusting fees," the complaint states. "Of the monies defendants collected, only $10,620 of said funds were distributed to plaintiff's creditors, thus representing a 40.95 percent fee." From 1956 to 2003, Georgia's Debt Adjustment Act made it a misdemeanor for companies such Financial Freedom to engage in "debt adjusting," but in 2003 the Georgia General Assembly amended the Act, allowing debt-adjustment companies to do business in the state so long as they provided insurance coverage, self audits conducted by CPAs on debtors' accounts, and a trust account for debtors' funds, according to the complaint. "The amended Act thus removed the out-and-out prohibition on debt adjusting for a fee and cracked the door to allow debt adjusters to operate in Georgia as long as the Act's mandates are followed," the complaint states. Ms. Snyder says Financial Freedom violated Georgia law by charging her and the class more than 7.5 percent of their debts in fees. In addition, "Defendants fraudulently induced the plaintiff and plaintiff class members to pay for debt settlement services with no intent or possibility of actually resolving their debts in the manner represented by defendants," the complaint states. Ms. Snyder seeks class damages and an injunction. A copy of the Complaint in Snyder v. Financial Freedom Southwest, et al., Case No. 12-cv-00136 (Ga. Super. Ct., Carroll Cty.), is available at: http://www.courthousenews.com/2012/02/14/FinancialFreedom.pdf The Plaintiff is represented by: James W. Hurt, Jr., Esq. Irwin w. Stolz, Jr., Esq. Jean G. Mangan, Esq. HURT, STOLZ & CROMWELL, LLC 345 W. Hancock Ave. Athens, GA 30601 Telephone: (706) 395-2750 E-mail: jhurt@hurtstolz.com istolz@hurtstolz.com jmangan@hurtstolz.com - and - David E. Hudson, Esq. Christopher A. Cosper, Esq. Christopher J. Driver, Esq. HULL BARRETT, P.C. Post Office Box 1564 Augusta, GA 30903-1564 Telephone: (706) 722-4481 E-mail: ccosper@hullbarrett.com dhudson@hullbarrett.com cdriver@hullbarrett.com - and - George Richard DiGiorgio, Esq. F. Jerome Tapley, Esq. Jon C. Conlin, Esq. CORY, WATSON, CROWDER & DEGARIS, PC 2131 Magnolia Avenue Birmingham, AL 35205 Telephone: (205) 328-2200 E-mail: rdigiorgio@cwcd.com jtapley@cwcd.com jconlin@cwcd.com GERBER PRODUCTS: Sued in California for Deceptive Advertising ------------------------------------------------------------- Courthouse News Service reports that Gerber and Nestle deceive consumers with labeling that implies their formula products are healthier and more nutritious than other, less costly baby food products that do not contain prebiotics and probiotics, a class claims. A copy of the Complaint in Siddiqi v. Gerber Products Company, et al., Case No. 12-cv-01188 (C.D. Calif.), is available at: http://www.courthousenews.com/2012/02/14/gerber.pdf The Plaintiffs are represented by: Ronald A. Marron, Esq. Maggie K. Realin, Esq. Skye Resendes, Esq. LAW OFFICES OF RONALD A. MARRON, APLC 3636 Fourth Avenue, Ste. 202 San Diego, CA 92103 Telephone: (619) 696-9006 E-mail: ron.marron@gmail.com maggie.realin@yahoo.com skyer@san.rr.com HECLA MINING: Pomerantz Law Firm Files Securities Class Action -------------------------------------------------------------- Pomerantz Haudek Grossman & Gross LLP has filed a federal securities class action (12-cv-067) in United States District Court, District of Idaho, on behalf of all persons who purchased Hecla Mining Company securities between October 26, 2010 and January 11, 2012, inclusive. This class action is brought under the Securities Exchange Act of 1934 and Rule 10b-5 against the Company and certain of its top officials. If you are a shareholder who purchased Hecla securities during the Class Period, you have until April 2, 2012 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Rachelle R. Boyle at rrboyle@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, x350. Those who inquire by e-mail are encouraged to include their mailing address and telephone number. The Complaint alleges that throughout the Class Period, the Company made false and/or misleading statements and/or failed to disclose that: (1) the Company was not in compliance with safety regulations at its Lucky Friday mine; (2) the Company had allowed sand and concrete material to improperly build up in the Silver Shaft over a period of years, creating a safety hazard; (3) following the December closure, the Company would be unable to reestablish mining operations at the Lucky Friday mine by February 2012; (4) the Company improperly accounted for its contingent liabilities in violation of Generally Accepted Accounting Principles; and (5) as a result of the foregoing, the Company's statements were materially false and misleading at all relevant times concerning the Company's operations and its expected silver production. On January 11, 2012, Hecla disclosed that the Mine Safety and Health Administration had ordered the Silver Shaft at the Lucky Friday mine closed due to built-up of sand and concrete material over a number of years in the shaft. On these revelations, Hecla shares declined $1.23 per share or 21%, to close at $4.61 per share on January 11, 2012. The Pomerantz Firm -- http://www.pomerantzlaw.com-- is a law firm that specializes in the areas of corporate, securities, and antitrust class litigation. The firm represents victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. It has offices in New York, Chicago and Washington, D.C. HONDA MOTOR: Deadline to Object to Hybrid Settlement Extended ------------------------------------------------------------- The Associated Press reports that a judge on Feb. 14 granted California and four other states more time to consider objecting to a class-action settlement between Honda Motor Co. and car owners over inflated fuel-efficiency claims about the automaker's hybrid vehicles. The states' sudden interest in the proposed settlement came shortly after Honda owner Heather Peters won $9,867 in small claims court -- much more than the couple hundred dollars cash that the settlement is offering. Attorneys general in California, Iowa, Massachusetts, Texas and Washington asked last week -- only two days before the Feb. 18 deadline -- for more time to consider the settlement with about 200,000 Honda Civic hybrid owners. San Diego County Superior Court Judge Timothy Taylor granted the states an extension until Feb. 29, but only after questioning why they missed the deadline when dozens of opponents didn't. The states were notified of the settlement in October. "They managed to get theirs in on time. I don't see why you can't," the judge said. Albert Shelden, a California deputy attorney general, acknowledged to reporters that Ms. Peters' victory this month in a Los Angeles court caught the attention of authorities. "From a number of different sources, other questions have been raised," he said. "Everything figures in." California has not decided whether to enter the fray and, if it did, on what grounds it would object, Mr. Shelden said. The amount of the offer would be among the questions it considers. "We're going to look at the whole settlement," he said. American Honda Motor Co., the Japanese automaker's U.S. subsidiary, said on Feb. 14 that it believed the settlement was a "very good resolution." "We look forward to a discussion with the state attorneys general concerning the benefits that our customers will receive from the settlement," Honda's statement read. Ms. Peters, who attended the hearing, told reporters the states' objections might carry enormous weight. "It resonates with the judges," she told reporters. Alan Mansfield, an attorney for the class-action plaintiffs, said the significance was unclear. "For me to presume what is important to a judge is not for me to say," he said. Ms. Peters, who has been working full-time to challenge the settlement, was denied an opportunity to address the judge. She told Judge Taylor that her license to practice law was recently reactivated, but the judge said he didn't have any evidence to support her claim. Ms. Peters opted out of the class-action lawsuit so she could try to claim a larger damage award for the failure of her 2006 Honda Civic to deliver the 50 mpg that was promised. The proposed class-action settlement would give aggrieved owners $100 to $200 each and a $1,000 credit toward the purchase of a new car. Legal fees in the class action would give trial lawyers $8 million. Honda noted that the settlement includes rebates of up to $1,500 toward the purchase of a new car and a warranty extension on the battery. Some owners would be eligible to seek additional relief. The judge granted the extension only after attorneys for Honda and the class-action plaintiffs said they had no problem with it. He gave less time than the states wanted and insisted on sticking to a March 16 hearing to decide whether to accept the settlement. Geoff Greenwood, a spokesman for the Iowa Department of Justice, said California was taking the lead and declined to comment on his state's involvement. Grant Woodman, a spokesman for the Massachusetts attorney general, also declined to comment. Spokesmen for attorneys general in Texas and Washington did not immediately respond to requests for comment. Mr. Shelden said the states would likely file any objections jointly. INTERNATIONAL GAME: Discovery Still Ongoing in Consolidated Suit ---------------------------------------------------------------- On October 2, 2009, two putative class action lawsuits were filed on behalf of participants in International Game Technology's employee pension plans, naming as defendants the Company, the IGT Profit Sharing Plan Committee, and several current and former officers and directors. The actions, filed in the US District Court for the District of Nevada, are captioned Carr et al. v. International Game Technology et al., Case No. 3:09-cv-00584, and Jordan et al. v. International Game Technology et al., Case No. 3:09-cv-00585. The actions were consolidated. The consolidated complaint (which seeks unspecified damages) asserts claims under the Employee Retirement Income Security Act, 29 U.S.C Sections 1109 and 1132. The consolidated complaint is based on allegations similar to those in the securities and derivative lawsuits against the Company, and further alleges that the defendants breached fiduciary duties to plan participants by failing to disclose material facts to plan participants, failing to exercise their fiduciary duties solely in the interest of the participants, failing to properly manage plan assets, and permitting participants to elect to invest in Company stock. In March 2011, defendants' motion to dismiss the consolidated complaint was granted in part and denied in part. Discovery is proceeding. International Game Technology is a global company specializing in the design, manufacture, and marketing of electronic gaming equipment and systems products. The Company is a supplier of gaming products in substantially all legal jurisdictions worldwide and provides a diverse offering of quality products and services at competitive prices, designed to increase the potential for gaming operator profits by enhancing the player's experience. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. INTERNATIONAL GAME: Hearing in "Atlantic" Suit on February 28 ------------------------------------------------------------- Atlantic Lottery Corporation's motion to dismiss a class action for abuse of process will be heard on February 28, 2012, according to International Game Technology's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On May 11, 2010, Atlantic Lottery Corporation commenced an action against International Game Technology, VLC, Inc. and IGT-Canada, wholly-owned subsidiaries of International Game Technology, and other manufacturers of video lottery machines in the Supreme Court of New Foundland and Labrador seeking indemnification for any damages that may be awarded against Atlantic Lottery Corporation in a class action lawsuit, captioned Rice (formerly Piercey) v. Atlantic Lotteries, also filed in the Supreme Court of New Foundland and Labrador. In December 2011, the plaintiff filed a motion seeking leave to substitute a new plaintiff in place of Rice and to make certain amendments to plaintiff's statement of claim. In January 2012, Atlantic Lottery Corporation filed a motion to dismiss the action for abuse of process. These motions are scheduled to be heard on February 28, 2012. A motion for class certification was filed by the plaintiff, and arguments on the motion are expected to be scheduled for hearing in April 2012. International Game Technology is a global company specializing in the design, manufacture, and marketing of electronic gaming equipment and systems products. The Company is a supplier of gaming products in substantially all legal jurisdictions worldwide and provides a diverse offering of quality products and services at competitive prices, designed to increase the potential for gaming operator profits by enhancing the player's experience. INTERNATIONAL GAME: Parties Document "IBEW" Suit Settlement ----------------------------------------------------------- Parties in the securities fraud class action lawsuit against International Game Technology are currently documenting a settlement agreement to resolve their dispute, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On July 30, 2009, International Brotherhood of Electrical Workers Local 697 filed a putative securities fraud class action in the US District Court for the District of Nevada, alleging causes of action under Sections 10(b) and 20(a) of the Exchange Act against IGT and certain of its current and former officers and directors. The complaint alleges that between November 1, 2007, and October 30, 2008, the defendants inflated IGT's stock price through a series of materially false and misleading statements or omissions regarding IGT's business, operations, and prospects. In April 2010, plaintiffs filed an amended complaint. In March 2011, defendants' motion to dismiss that complaint was granted in part and denied in part. The Court found that the allegations concerning statements about the seasonality of game play levels and announcements of projects with Harrah's and City Center were sufficient to state a claim. Plaintiffs did not state a claim based on the remaining statements about earnings, operating expense, or forward-looking statements about play levels and server-based technology. The parties have reached an agreement to settle this action. On February 1, 2012, at the direction of the Court, the plaintiffs filed a Notice of Pending Settlement. The parties are in the process of documenting a settlement agreement which requires judicial approval in order for the settlement to take effect. International Game Technology is a global company specializing in the design, manufacture, and marketing of electronic gaming equipment and systems products. The Company is a supplier of gaming products in substantially all legal jurisdictions worldwide and provides a diverse offering of quality products and services at competitive prices, designed to increase the potential for gaming operator profits by enhancing the player's experience. INTL FCSTONE: Discovery in Consolidated Securities Suit Ongoing --------------------------------------------------------------- Discovery is ongoing in the consolidated securities class action lawsuit involving a subsidiary of INTL FCStone Inc., according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. FCStone Group, Inc. ("FCStone"), a subsidiary of INTL FCStone Inc., and certain officers of FCStone were named as defendants in an action filed in the United States District Court for the Western District of Missouri on July 15, 2008. A consolidated amended complaint ("CAC") was subsequently filed on September 25, 2009. As alleged in the CAC, the action purports to be brought as a class action on behalf of purchasers of FCStone common stock between November 15, 2007, and February 24, 2009. The CAC seeks to hold defendants liable under Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934 and concerns disclosures included in FCStone's fiscal year 2008 public filings. Specifically, the CAC relates to FCStone's public disclosures regarding an interest rate hedge, a bad debt expense arising from unprecedented events in the cotton trading market, and certain disclosures beginning on November 3, 2008, related to losses it expected to incur arising primarily from a customer energy trading account. FCStone and the named officers moved to dismiss the action. Although the court denied that motion on November 16, 2010, it limited the action to the public disclosures made on November 3, 2008, and November 4, 2008, related to the energy trading account. The parties have completed briefing of lead plaintiffs' motion to certify a class on behalf of purchasers of FCStone stock between April 14, 2008, and February 24, 2009, and that motion is pending the court's ruling. Discovery has commenced and is continuing. No further updates were reported in the Company's latest SEC filing. The Company and the FCStone defendants continue to believe the action is meritless, and intend to defend the action vigorously. INTL FCStone Inc. -- http://www.intlfcstone.com/-- together with its consolidated subsidiaries, form a financial services group focused on domestic and select international markets. The Company's services include comprehensive risk management advisory services for commercial customers; execution of listed futures and options on futures contracts on all major commodity exchanges; structured over-the-counter ("OTC") products in a wide range of commodities; physical trading and hedging of precious and base metals and select other commodities; trading of more than 130 foreign currencies; market-making in international equities; debt origination and asset management. During the quarter ended March 31, 2011, the Company changed its name from International Assets Holding Corporation to INTL FCStone Inc., following approval of the name change by the Company's stockholders. INTL's businesses, which include the commodities advisory and transaction execution firm FCStone Group, Inc., serve more than 10,000 commercial customers in more than 100 countries through a network of offices in 12 countries around the world. INTL FCSTONE: Motion to Dismiss Shareholder Suit Still Pending -------------------------------------------------------------- In August 2008, a shareholder derivative action was filed against FCStone Group, Inc. ("FCStone"), a subsidiary of INTL FCStone Inc., and certain directors of FCStone in the Circuit Court of Platte County, Missouri, alleging breaches of fiduciary duties, waste of corporate assets and unjust enrichment. An amended complaint was subsequently filed in May 2009 to add claims based upon the losses sustained by FCStone arising out of a customer's energy trading account. On July 7, 2009, the same plaintiff filed a motion for leave to amend the existing case to add a purported class action claim on behalf of the holders of FCStone common stock. On July 8, 2009, a purported shareholder class action complaint was filed against FCStone and its directors, as well as the Company in the Circuit Court of Clay County, Missouri. The complaint alleged that FCStone and its directors breached their fiduciary duties by failing to maximize stockholder value in connection with the contemplated acquisition of FCStone by the Company. This complaint was subsequently consolidated with the complaint filed in the Circuit Court of Platte County, Missouri. The plaintiffs subsequently filed an amended consolidated complaint which does not assert any claims against the Company. This complaint purports to be filed derivatively on FCStone and the Company's behalf and against certain of FCStone's current and former directors and officers and directly against the same individuals. The Company, FCStone, and the defendants filed motions to dismiss on multiple grounds. That motion is fully briefed and pending decision. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. INTL FCStone Inc. -- http://www.intlfcstone.com/-- together with its consolidated subsidiaries, form a financial services group focused on domestic and select international markets. The Company's services include comprehensive risk management advisory services for commercial customers; execution of listed futures and options on futures contracts on all major commodity exchanges; structured over-the-counter ("OTC") products in a wide range of commodities; physical trading and hedging of precious and base metals and select other commodities; trading of more than 130 foreign currencies; market-making in international equities; debt origination and asset management. During the quarter ended March 31, 2011, the Company changed its name from International Assets Holding Corporation to INTL FCStone Inc., following approval of the name change by the Company's stockholders. INTL's businesses, which include the commodities advisory and transaction execution firm FCStone Group, Inc., serve more than 10,000 commercial customers in more than 100 countries through a network of offices in 12 countries around the world. NBTY INC: Awaits Approval of Settlement in "Dirickson" Suit ----------------------------------------------------------- NBTY, Inc. is awaiting court approval of its settlement of a wage and hour class action lawsuit, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On April 8, 2010, a putative class action captioned Dirickson v. NBTY Acquisition, LLC, NBTY Manufacturing, LLC, NBTY, Inc., and Volt Management Corporation ("Volt") was filed against the Company and certain subsidiaries in the Superior Court of California, County of Los Angeles. Volt is not related to the Company. Plaintiff seeks to represent a class of employees in connection with several causes of action alleging, among other things, wage and hour violations. The complaint seeks damages on behalf of all non-exempt employees within the State of California who worked for Volt or any of the NBTY entities between April 8, 2006, and April 8, 2010, including compensatory damages, unpaid wages, statutory penalties, restitution, unspecified injunctive relief, unjust enrichment and attorneys' fees and costs in unidentified amounts. The NBTY entities have agreed upon a proposed settlement with the plaintiffs, and submitted a settlement agreement on November 16, 2011, for court approval providing for potential payments to the class in the range of $161 million to $338 million in the aggregate. Until such settlement is approved and entered by the court, however, no determination can be made as to the ultimate outcome of the litigation or the amount of liability, if any, on the part of the defendant. The estimated settlement value has been accrued in other liabilities. NBTY, Inc. -- http://www.nbty.com/-- is a global vertically integrated manufacturer, marketer and distributor of a broad line of high-quality, value-priced nutritional supplements in the United States and throughout the world. Under a number of NBTY and third party brands, the Company offers over 22,000 products, including products marketed by the Company's Nature's Bounty(R), Vitamin World(R), Puritan's Pride(R), Holland & Barrett(R), Rexall(R), Sundown(R), MET-Rx(R), Worldwide Sport Nutrition(R), American Health(R), GNC (UK)(R), DeTuinen(R), LeNaturiste(TM), SISU(R), Solgar(R), Good 'n' Natural(R), Home Health(TM), Julian Graves, Ester-C(R) and Natural Wealth brands. NBTY INC: Awaits Ruling on Bids to Dismiss Glucosamine Suits ------------------------------------------------------------ NBTY, Inc. is awaiting a court decision on its and other defendants' motions to dismiss class action lawsuits challenging the marketing of glucosamine-based dietary supplements, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. Beginning in June 2011, certain putative class actions have been filed in various jurisdictions against the Company, its subsidiary Rexall Sundown, Inc. ("Rexall"), and/or other companies as to which there may be a duty to defend and indemnify, challenging the marketing of glucosamine-based dietary supplements, under various states' consumer protection statutes. The lawsuits against the Company and its subsidiaries are: Cardenas v. NBTY, Inc. and Rexall Sundown, Inc. (filed June 14, 2011, in the United States District Court for the Eastern District of California, on behalf of a putative class of California consumers seeking unspecified compensatory damages based on theories of restitution and disgorgement, plus punitive damages and injunctive relief); and Jennings v. Rexall Sundown, Inc. (filed August 22, 2011, in the United States District Court for the District of Massachusetts, on behalf of a putative class of Massachusetts consumers seeking unspecified trebled compensatory damages), as well as other cases in California and Illinois against certain wholesale customers as to which the Company may have certain indemnification obligations. Motions to dismiss have been filed in all of these cases; all cases currently remain at the pleading stage. The Company disputes the allegations and intends to vigorously defend these actions. At this time, however, no determination can be made as to the ultimate outcome of the litigation or the amount of liability, if any, on the part of any of the defendants. NBTY, Inc. -- http://www.nbty.com/-- is a global vertically integrated manufacturer, marketer and distributor of a broad line of high-quality, value-priced nutritional supplements in the United States and throughout the world. Under a number of NBTY and third party brands, the Company offers over 22,000 products, including products marketed by the Company's Nature's Bounty(R), Vitamin World(R), Puritan's Pride(R), Holland & Barrett(R), Rexall(R), Sundown(R), MET-Rx(R), Worldwide Sport Nutrition(R), American Health(R), GNC (UK)(R), DeTuinen(R), LeNaturiste(TM), SISU(R), Solgar(R), Good 'n' Natural(R), Home Health(TM), Julian Graves, Ester-C(R) and Natural Wealth brands. NBTY INC: Discovery in "Hamilton" Class Suit Still Ongoing ---------------------------------------------------------- On July 7, 2010, a putative class action captioned Hamilton and Taylor v. Vitamin World, Inc. was filed against one of NBTY, Inc.'s subsidiaries in the Alameda Superior Court, California. Plaintiffs seek to represent a class of employees in connection with several causes of action alleging, among other things, wage and hour violations. Plaintiffs describe the class as all non- exempt current and former employees of Vitamin World Stores in California. The complaint seeks compensatory damages, statutory penalties, restitution, disgorgement of profits, and attorneys' fees and costs in unidentified amounts. To date, the Plaintiffs have filed an amended complaint and discovery is ongoing. The Company challenges the validity of the claims and intends to vigorously defend this action. At this time, however, no determination can be made as to the ultimate outcome of the litigation or the amount of liability, if any, on the part of the defendant. In addition, on or about October 27, 2010, a different set of plaintiffs filed an action captioned Hickman v. Vitamin World, Inc. in Solano County Superior Court, California. Vitamin World filed a demurrer and motion to abate that action because it is identical to the instant Hamilton complaint and the Hickman action was dismissed on May 31, 2011. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. NBTY, Inc. -- http://www.nbty.com/-- is a global vertically integrated manufacturer, marketer and distributor of a broad line of high-quality, value-priced nutritional supplements in the United States and throughout the world. Under a number of NBTY and third party brands, the Company offers over 22,000 products, including products marketed by the Company's Nature's Bounty(R), Vitamin World(R), Puritan's Pride(R), Holland & Barrett(R), Rexall(R), Sundown(R), MET-Rx(R), Worldwide Sport Nutrition(R), American Health(R), GNC (UK)(R), DeTuinen(R), LeNaturiste(TM), SISU(R), Solgar(R), Good 'n' Natural(R), Home Health(TM), Julian Graves, Ester-C(R) and Natural Wealth brands. NBTY INC: Motion to Dismiss "Hutchins" Suit Remains Pending ----------------------------------------------------------- On May 11, 2010, a putative class-action, captioned John F. Hutchins v. NBTY, Inc., et al, was filed in the United States District Court, Eastern District of New York, against NBTY and certain current and former officers, claiming that the defendants made false material statements, or concealed adverse material facts, for the purpose of causing members of the class to purchase NBTY stock at allegedly artificially inflated prices. An amended complaint, seeking unspecified compensatory damages, attorneys' fees and costs, was served on February 1, 2011. The Company moved to dismiss the amended complaint on March 18, 2011, and that motion is pending. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. The Company believes the claims to be without merit and intends to vigorously defend this action. At this time, however, no determination can be made as to the ultimate outcome of the litigation or the amount of liability, if any, on the part of any of the defendants. NBTY, Inc. -- http://www.nbty.com/-- is a global vertically integrated manufacturer, marketer and distributor of a broad line of high-quality, value-priced nutritional supplements in the United States and throughout the world. Under a number of NBTY and third party brands, the Company offers over 22,000 products, including products marketed by the Company's Nature's Bounty(R), Vitamin World(R), Puritan's Pride(R), Holland & Barrett(R), Rexall(R), Sundown(R), MET-Rx(R), Worldwide Sport Nutrition(R), American Health(R), GNC (UK)(R), DeTuinen(R), LeNaturiste(TM), SISU(R), Solgar(R), Good 'n' Natural(R), Home Health(TM), Julian Graves, Ester-C(R) and Natural Wealth brands. NETWORK ENGINES: Insurers Paid IPO Suit Plaintiffs Last Month ------------------------------------------------------------- In January 2012, insurers paid a settlement amount directly to the plaintiffs of a consolidated litigation over initial public offerings, according to Network Engines, Inc.'s February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. On December 3, 2001, a putative class action lawsuit was filed in the United States District Court for the Southern District of New York against the Company, Lawrence A. Genovesi (the Company's former Chairman and Chief Executive Officer), Douglas G. Bryant (the Company's Chief Financial Officer), and several underwriters of the Company's initial public offering. The lawsuit alleges, inter alia, that the defendants violated the federal securities laws by issuing and selling securities pursuant to the Company's initial public offering in July 2000 ("IPO") without disclosing to investors that the underwriter defendants had solicited and received excessive and undisclosed commissions from certain investors. The lawsuit seeks damages and certification of a plaintiff class consisting of all persons who acquired shares of the Company's common stock between July 13, 2000, and December 6, 2000. In October 2002, Lawrence A. Genovesi and Douglas G. Bryant were dismissed from this case without prejudice. On December 5, 2006, the United States Court of Appeals for the Second Circuit overturned the District Court's certification of a plaintiff class. On April 6, 2007, the Second Circuit denied plaintiffs' petition for rehearing, but clarified that the plaintiffs may seek to certify a more limited class in the District Court. On September 27, 2007, plaintiffs filed a motion for class certification in certain designated "focus cases" in the District Court. That motion has since been withdrawn. On November 13, 2007, the issuer defendants in certain designated "focus cases" filed a motion to dismiss the second consolidated amended class action complaints that were filed in those cases. On March 26, 2008, the District Court issued an Opinion and Order denying, in large part, the motions to dismiss the amended complaints in the "focus cases." On April 2, 2009, the plaintiffs filed a motion for preliminary approval of a new proposed settlement between plaintiffs, the underwriter defendants, the issuer defendants and the insurers for the issuer defendants. On June 10, 2009, the Court issued an opinion preliminarily approving the proposed settlement, and scheduling a settlement fairness hearing for September 10, 2009. On October 5, 2009, the Court issued an opinion granting plaintiffs' motion for final approval of the settlement, approval of the plan of distribution of the settlement fund, and certification of the settlement classes. An Order and Final Judgment was entered on December 30, 2009. Various notices of appeal of the District Court's October 5, 2009 order were filed. On October 7, 2010, all but two parties who had filed a notice of appeal filed a stipulation with the District Court withdrawing their appeals with prejudice, and the two remaining objectors filed briefs in support of their appeals. On May 17, 2011, the Second Circuit dismissed one of the appeals and remanded the one remaining appeal to the District Court for further proceedings to determine whether the remaining objector has standing. On August 25, 2011, the District Court concluded that the remaining objector lacks standing to object to the settlement because he was not a class member. On September 23, 2011, the remaining objector filed a Notice of Appeal of the District Court's August 25, 2011 Order. On January 13, 2012, the Second Circuit issued a mandate dismissing the appeal, thereby finalizing the settlement between the plaintiffs and defendants and ending this case. The settlement required the insurers for the issuer defendants to pay the settlement directly to the plaintiffs, as the Company had no liability in connection with this litigation. In January 2012, the insurers for the issuer defendants paid the settlement amount directly to the plaintiffs. As the Company did not and will not have any obligation related to this case or settlement, no amounts have been accrued as of December 31, 2011. Networks Engine Inc., as a system integrator, designs and manufactures application platforms and appliance solutions on which software applications are applied to both enterprise and telecommunications networks. The Company markets its application platform solutions and services to original equipment manufacturers, or OEMs, and independent software vendors, or ISVs, that then deliver their software applications in the form of a network-ready hardware or software platform. RESERVE BANK: Axed Employees Must File Class Action, Jacob Says --------------------------------------------------------------- Phil Jacob, writing for The Daily Telegraph, reports that Australia's recently unemployed should take a class action against the Reserve Bank because it has failed to deliver on one of its core missions, one of the nation's top economists said on Feb. 14. Professor William Mitchell, a leading voice on the jobless from the University of Newcastle, has said the proof was plain to see that the Reserve Bank wasn't living up to its duty of "maintaining full employment in Australia". "I definitely believe the unemployed should take a class action against the central bank," Prof Mitchell said. "They've certainly failed in this part of their requirements, because they claim to have managed the current unemployment rate yet it's clearly on the rise." After ANZ announced on Feb. 13 it would axe 1000 jobs, speculation is mounting that Qantas will be the next company to announce mass job losses. The airline was due to unveil its half-yearly financial results on Feb. 16, when it is feared engineering job cuts may also be announced. Australian Licensed Aircraft Engineers Association federal secretary Steve Purvinas said the rumors were building that the airline was planning to slash jobs. "It wouldn't surprise me that Qantas would shed hundreds of jobs which seems to be their style of management rather than harnessing the quality product that we produce here in Australia," Mr. Purvinas said. Qantas denied the claim, saying in a statement that "any suggestion that Qantas is sending jobs offshore is totally incorrect". While last month's overall unemployment remained steady at a respectable 5.2 per cent for December, analysts suggest the official figure could have been much more dire. "If the participation rate remained at 65.5 per cent, then the unemployment rate would have risen to 5.6 per cent," TD Securities head of Asian-Pacific research Annette Beacher said. However the participation rate sank to 65.2 per cent, its lowest level in almost two years. Former Reserve Bank board member Warwick McKibbon on Feb. 14 said the bank would now be finding it difficult to balance keeping inflation in check with managing unemployment levels. "We know from the '80s that if you let inflation get out of control and then stomp on it like they did in '89 and '91, the unemployment will spike dramatically. That's the trade-off right now, between inflation and unemployment," Mr. McKibbon said. SIMILISAN CORP: Sued Over False Claims on Homeopathic Medicines --------------------------------------------------------------- Courthouse News Service reports that a federal class action claims Similisan pushes its homeopathic medicines with false claims. A copy of the Complaint in Allen v. Similasan Corporation, et al., Case No. 12-cv-00376 (S.D. Calif), is available at: http://www.courthousenews.com/2012/02/14/Homeop.pdf The Plaintiffs are represented by: Ronald A. Marron, Esq. Maggie K. Realin, Esq. Skye Resendes, Esq. LAW OFFICES OF RONALD A. MARRON, APLC 3636 4th Avenue, Suite 202 San Diego, CA 92103 Telephone: (619) 696-9006 E-mail: ron.marron@gmail.com maggie.realin@yahoo.com skyer@san.rr.com STATE OF NEW YORK: To Face Class Action Over Parole Policy ---------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that high-ranking corrections officials in New York must face two lawsuits -- including a putative class action -- claiming that they went around the courts to reincarcerate hundreds of convicted felons for violating parole. "Beginning in 1998, New York mandated that certain violent felonies be punished by a determinate prison sentence followed by a mandatory term of parole, known as post-release supervision ('PRS')," U.S. District Judge Shira Scheindlin explained on Feb. 10 in a 42-page order brushing aside motions to dismiss the lawsuits. "The governing statute did not require that the term of PRS be announced by the judge at sentencing. In thousands of cases where the judge did not impose a term of PRS at sentencing, the New York State Department of Correctional Services ('DOCS') imposed PRS on convicted felons either before or as they were released from prison and the Department of Parole ('DOP') then enforced its terms upon them." The 2nd Circuit declared that practice unconstitutional on June 9, 2006, in its Earley v. Murray decision, which stated: "Only the judgment of a court, as expressed through the sentence imposed by a judge, has the power to constrain a person's liberty." "The additional provision for post-release supervision added by DOCS is a nullity," the appellate decision continued. Dozens filed suit last year, however, claiming that current and former high-ranking officials with the Department of Corrections and Department of Prisons ignored the 2nd Circuit's order. The defendants include Robert J. Dennison, the former chair of New York State Division of Parole; Anthony G. Ellis II, the division's former executive director; George B. Alexander, its former chair and CEO; Terrence Tracy, its chief counsel; Brian Fischer, commissioner of the New York State Department of Correctional Services; Anthony J. Annucci, deputy commissioner and counsel for DOCS; Luciente J. LeClaire Jr., former acting commissioner of DOCS; Glenn S. Goord, former commissioner of DOCS; and dozens of John Does. One of the lawsuits, filed by lead plaintiff Paul Betances, seeks class action status. Judge Scheindlin ruled on Feb. 10 that the officials will remain on the hook for both lawsuits. "According to plaintiffs' allegations, defendants were the officials individually responsible for establishing and enforcing DOCS's and DOP's policies with respect to PRS - policies that led directly to plaintiffs' unlawful custody," Judge Scheindlin wrote. "These claims allege sufficient personal involvement to survive a motion to dismiss." The defendants also failed to defeat false-imprisonment claims. Attorney Joel Berger praised Judge Scheindlin's "excellent, scholarly decision." "I am confident that if there is an appeal it will be affirmed," Mr. Berger said in an e-mail to Courthouse News. The New York Attorney General's Office declined to comment. Judge Scheindlin scheduled a conference for Feb. 21. A copy of the Opinion and Order in Bentley, et al. v. Dennison, et al., Case No. 11-cv-01056, and in Betances, et al. v. Fischer, et al., Case No. 11-cv-03200 (S.D.N.Y.), is available at: http://www.courthousenews.com/2012/02/14/Parole%20Class%20Action%2 02-10-12.pdf The Betances Plaintiffs were represented by: Matthew D. Brinckerhoff, Esq. Adam R. Pulver, Esq. EMERY, CELLI, BRINCKERHOFF & ABADY LLP 75 Rockefeller Plaza, 20th Floor New York, NY 10019 Telephone: (212) 763-5000 E-mail: mbrinckerhoff@ecbalaw.com apulver@ecbalaw.com The Bentley Plaintiffs were represented by: Joel Berger, Esq. 360 Lexington Avenue, 16th Floor New York, NY 10017 Telephone: (212) 687-4911 E-mail: jberger1955@aol.com The Defendants were represented by: Michael J. Keane, Esq. James B. Cooney, Esq. Assistant Attorneys General State of New York 120 Broadway, 24th Floor New York, New York 10271 STIHL INC: Recalls 3,000 Chain Saws Due to Risk of Injury --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with STIHL Inc., of Virginia Beach, Virginia, announced a voluntary recall of about 3,000 MS 391 Chain Saws. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The flywheel on the chain saw can crack causing parts of the flywheel to separate and strike users or bystanders, posing a risk of injury. No incidents or injuries have been reported. This recall involves STIHL MS 391 gas-powered chain saws with an orange top casing, gray base and black front handle and hand guard. "STIHL" and "MS 391" are printed in an orange circle on the starter side of the unit. The serial number is located on the crankcase to the right of the muffler when viewed from the rear of the saw. Serial numbers included in the recall are: 28535 1759 through 28535 1956 28664 5278 through 28664 6277 28665 1283 through 28665 5577 28724 4317 through 28724 4480 28735 3627 through 28735 3647 Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12108.html The recalled products were manufactured in the United States of America and sold at authorized STIHL dealers nationwide from March 2011 through July 2011 for between $530 and $550. Consumers should immediately stop using the recalled chain saws and return them to an authorized STIHL dealer for the installation of a free replacement flywheel. For additional information, consumers should contact STIHL at (800) 610-6677 between 8:00 a.m. and 8:00 p.m. Eastern Time Monday through Friday, or visit the firm's Web site at http://www.stihlusa.com/.Consumers also can e- mail the firm at stihlrecall@stihl.us WELLS FARGO: Faces RICO Class Action in California -------------------------------------------------- Dan McCue at Courthouse News Service reports that Wells Fargo Bank and J.P. Morgan Chase charge homebuyers who go into default inflated fees and interest rates, customers say in a federal RICO class action. Lead plaintiff Latara Bias claims the defendants, including Chase Home Finance, service almost 20 million mortgage loans, approximately 25 percent of the home loans made in the United States. The class claims the defendants use an automated mortgage loan management system, and subsidiaries, to "fraudulently conceal their unlawful assessment of improperly marked-up or unnecessary fees for default-related services, cheating borrowers who have least afford it." The plaintiffs concede that when mortgage borrowers go into default, it is natural for lenders to act to protect their interest in the property. "However, lenders are not permitted to mark up the fees for such services to earn a profit," the complaint states. Nor are lenders permitted to assess borrowers' accounts for defaulted-related service fees that are unreasonably and unnecessary. Nevertheless . . . using false pretenses to conceal the truth from borrowers, that is precisely what defendants do. "In effect, to generate hearty profits, defendants have substituted inflated interest rates with inflated fees. Defendants formed enterprises -- associations of subsidiaries and affiliated companies -- and designed schemes to disguise hidden mark-ups, and unnecessary fees so that they could earn additional, undisclosed profits. Through these unlawful enterprises, defendants mark up the fees charged by vendors, often by 100 percent or more, and then, without disclosing the mark-up, assess borrowers' accounts for the hidden profits. In connection with their schemes, defendants also have a practice of routinely assessing fees for default-related services, even when they are unnecessary and inappropriate. Employing this strategy, defendants are able to quietly profit from default-related service fees at the expense of struggling consumers. Indeed, in the fourth quarter of 2011 alone, defendant Wells Fargo & Co. saw a 20 percent increase in profits." The class claims these tricks evolved and expanded dramatically in recent years. Traditionally, they say, borrowers reasonably believed that the lender from whom they obtained their mortgage would hold it until it was paid off. But that's no longer the case, because of the securitization and sale of mortgage-backed securities. "In today's market, loans and the rights to service them are bought and sold at will, multiple times over," the plaintiffs say. "Because banks like defendants who service loans do not profit directly from interest payments made by borrowers, rather than ensuring that borrowers stay current on their loans, defendants are more concerned with generating revenue from fees assessed against the mortgage accounts they service. According to one member of the Board of Governors of the Federal Reserve System, 'a foreclosure almost always costs the investor [who owns the loan] money, but [it] may actually earn money for the servicer in the form of fees.' "Banks like defendants see opportunity where investors see failure because borrowers are captives to companies who service their loans. Accordingly, when borrowers go into default and defendants unilaterally decide to perform default-related services, borrowers have no option but to accept defendants' choice of providers. "Taking advantage of these circumstances, the Wells Fargo defendants and Chase defendants each formed enterprises with their respective subsidiaries and affiliates and then, developed a uniform practice of unlawfully marking up default-related service charges assessed against borrowers' accounts so that defendants can earn undisclosed profits in connection with these services. Defendants' marked-up fees violate borrowers' mortgage agreements because the fees exceed the actual cost of the services, and therefore, they are not, as the mortgage agreements require, 'reasonable' or 'appropriate' to protect the not holder's interest in the property. "Defendants are aware that it is improper to mark up the fees assessed on borrowers' accounts for default-related services. Therefore, defendants fraudulently conceal these fees on borrowers' accounts, omitting any information about defendants' additional profits, by identifying them on mortgage statements only as 'other charges,' 'other fees,' 'miscellaneous fees,' or 'corporate advances.'" The class seeks declaratory and injunctive relief, restitution and disgorgement, and compensatory and treble damages for unfair competition, unjust enrichment and RICO conspiracy. A copy of the Complaint in Bias, et al. v. Wells Fargo & Company, et al., Case No. 12-cv-00664 (N.D. Calif.), is available at: http://www.courthousenews.com/2012/02/14/Bias.pdf The Plaintiffs are represented by: Daniel Alberstone, Esq. Roland Tellis, Esq. Mark Pifko, Esq. BARON & BUDD, P.C. 1999 Avenue of the Stars, Suite 3450 Los Angeles, CA 90067 Telephone: (310) 860-0476 E-mail: dalberstone@baronbudd.com rtellis@baronbudd.com mpifko@baronbudd.com XTO ENERGY: Shareholder Class Action Attorneys Get $8.6 Million --------------------------------------------------------------- David Lee at Courthouse News Service reports that a Texas appeals court awarded $8.6 million in attorney's fees to attorneys for a class of XTO Energy shareholders who contested its $41 billion merger with ExxonMobil. The ruling more than doubles the $3.9 million in fees awarded in Fort Worth State Court. In a 2-1 decision, a three-judge panel of the Court of Appeals for the 2nd District of Texas agreed with the plaintiffs' argument that the trial court abused its discretion by failing to apply certain enhancement factors in determining the reasonableness of the request for attorneys' fees. "After a hearing in which no live witnesses or other additional evidence were presented, the trial court issued its final judgment granting plaintiffs' request for $188,355.66 for expenses, but awarding only $3,972,367.75 of the requested $8,611,644.34 for attorneys' fees," the opinion states. "The trial court issued a letter 'to clarify some of the reasons for the court's ruling.' In it, the trial court noted several problems with the evidence supporting the award. Specifically, the trial court noted a lack evidence that the hours worked and rates billed were reasonable. The trial court also expressed concern that some of the factors to be considered in granting a multiplier 'would not be appropriate across the board' because of the firms' differences in size, location, specialization, and degree of involvement with the case." Writing for the majority, Judge Lee Gabriel said the trial court's assumption was not based on presented evidence, was without reference to the "guiding rules and principles," and resulted in an award that is not just. He wrote the unenhanced award of $3.9 million does not reflect the "exceptional results achieved by plaintiffs' counsel, the undesirability of this litigation, the high risk borne by its contingent nature, or the fact that the fee award requested is comparable to that awarded in similar class action litigation, all of which were directly established by uncontradicted evidence." Judge Gabriel said the court was obligated to consider the adjustment based on that evidence and other factors and that it was an abuse of discretion to fail to do so based on an unsubstantiated assumption. "We hold that the requested multiplier of 2.17 is appropriate in this case. The lodestar of $3,968,277.25 multiplied by 2.17 equals an award of $8,611,161.63, which we hold to be an appropriate and reasonable award," Judge Gabriel wrote. In dissent, Judge Bill Meier wrote that the majority focused on just on a phrase in the trial court's letter as opposed to the entire document. Judge Meier wrote that "the lynchpin of the majority opinion states 'it appears that the trial court did not complete the required steps.' Because I would treat the . . . letter as nothing more than what the trial court stated in the opening paragraph of the letter -- 'This letter attempts to clarify some of the reasons for the court's ruling, but it should not be considered an exhaustive or complete discussion of all considerations given to the Motion for Final Certification prior to the court's ruling thereon.' -- I do not read the letter to support an appellate ruling that 'the trial court did not complete the required steps.' To the extent that we permit the trial court's letter to function as rule of civil procedure 42(h)(3) findings of fact and conclusions of law, reviewing the letter in its entirety -- instead of considering one short phrase contained within the letter in isolation -- reveals that the trial court declined to adjust the presumptively reasonable lodestar because it had already accounted for relevant Johnson factors in determining the lodestar. For these reasons, I dissent." A copy of the Memorandum Opinion in Stratton v. XTO Energy Inc., et al., Case No. 02-10-00483 (Tex. App. Ct.), is available at: http://www.courthousenews.com/2012/02/14/TexXTO.pdf Asbestos Litigation ASBESTOS UPDATE: Asbestos Workers' Protection Bill Wins Senate -------------------------------------------------------------- Michael Lee Pope of The Connection relates that labor advocates say the people who are licensed to remove asbestos may not be fully aware of the dangers posed by toxic chemicals. That's why Sen. Adam Ebbin (D-30) and Sen. Barbara Favola (D-31) have introduced legislation to tighten regulation on the industry, creating new restrictions on how workers are licensed and increased notification of the dangers of working with asbestos. "There's a real recognition that we need to keep asbestos workers safer and that we need to help the industry keep the workers safer and to play by the rules," said Ebbin. "We need for asbestos workers to know their rights in this very dangerous industry." Workers who handle asbestos are required to pay $320 for a 32-hour training course. At the end of the training course, asbestos removal companies will administer a test of the material. Last year, a handful of complaints were filed with the Virginia Department of Professional and Occupational Regulation that employers were openly giving the answers to employees during the test. Those complaints sparked the Labors Mid-Atlantic Regional Organizing Coalition to approach Ebbin about introducing legislation take the power to give tests out of the hands of companies and put it in the hands of regulators. "Keep in mind that in some cases these workers are not functionally literate, so they struggle with the written exam," said Steve Lanning, of Labors Mid-Atlantic. "If it's known on the streets that this company will fail you and you still owe them $320 for the training, people will go someplace else." That creates a business incentive for companies not to fail workers, a function of how the testing is administered. Ebbin's bill is aimed squarely at changing that dynamic. Instead of allowing the companies to administer the tests, the bill would require the Board for Asbestos, Lead, Mold and Home Inspections to be responsible for making sure workers have absorbed the material. It would also require employees to provide each licensed asbestos worker with a written notice informing them that they have the right to work in a safe environment as well as a summary of basic safety rules. "I am very proud the Senate passed my asbestos worker's protection legislation unanimously," said Favola. "Asbestos workers have one of the most dangerous jobs in the commonwealth, and it is critical to ensure workers are well-trained and companies understand that there is state oversight body to protect both the public health and workers who handle dangerous asbestos." The vast majority of asbestos workers in Northern Virginia are Latino immigrants, many of whom have a tenuous grasp on the English language. As a result, Ebbin and Favola are concerned that the language barrier may be creating a situation where workers are handling toxic materials without a full understanding of the dangers. "We've talked to enough workers in this industry to see a pattern of negligence and abuse on the part of contractors related to safety standards," said Lanning. "Asbestos is a known carcinogen, and it just seems that these are not cumbersome and overly burdensome regulations." The bill received unanimous support before the General Laws and Technology Committee, and it received unanimous support on the floor of the state Senate. Nobody testified against the bill, and no senator raised objections to it. "What you see in a lot of these situations is that most companies who are involved in asbestos removal are doing things responsibly," said Sen. George Barker (D-36). "The ones that aren't behaving responsibly aren't going to come to Richmond and ask us to let them continue behaving irresponsibly." The measure will now head to the House of Delegates after crossover. ASBESTOS UPDATE: DOE Step Ups Safety at Hanford Site Clean-Up ------------------------------------------------------------- Pat Guth of The Mesothelioma Cancer Alliance writes that the U.S. Department of Energy (DOE) says they are taking additional steps to make sure that all employees at Washington's Hanford Site are not exposed to hazardous asbestos. According to an article in the Tri-City Herald, the action is being taken after numerous workers noted concerns about their health and safety. Though an environmental clean-up is currently underway at Hanford, which was the site of the historic Manhattan Project and the location for the first full-scale plutonium production reactor in the world, a good portion of the facility has not been demolished, prompting concerns about the presence of a large amount of friable asbestos. In addition, asbestos debris often remains behind even after structures have been torn down. Because the majority of the Hanford Site was built during an era when asbestos use was widespread, and thousands of construction products once contained the hazardous mineral, the clean-up has been tedious and expensive. Pipefitters and insulators, especially, have expressed their concerns about working at the property. "Concerns include old buildings with deteriorating siding or roofing with asbestos incorporated in it that could blow off and then break apart," said John Lehew, president of CH2M Hill Plateau Remediation Co., the company handling the clean up. In addition, Lehew told the media that outdoor steam lines are insulated with asbestos materials and additional asbestos may be underground or at the level of foundation. Matt McCormick, manager of the DOE Hanford Richland Operations Office, also noted that they may speed up the demolition schedule for those buildings that present the highest level of concern, noting that a wind storm could easily pull off asbestos materials and spread asbestos fibers throughout the area, prompting further concerns about asbestos exposure and the eventual development of related diseases such as pleural mesothelioma, an aggressive form of cancer for which the only known cause is asbestos inhalation. "We're happy that employees brought their concerns forward," McCormick said. "It's provided an opportunity to improve safety at the site and to work with employees to find solutions to the issues raised." ASBESTOS UPDATE: Toxins Found at Old Hospital Not Major Concern --------------------------------------------------------------- CBC News Windsor reports that the provincial Ministry of Labour ordered all workers off the former Grace Hospital property on Feb. 7. The reason for the order is because samples have tested positive for asbestos. The ministry made the discovery in four of eight samples taken in the prior week. The asbestos was found in the flooring. The crew working for the past few months had taken 860 other samples from the piles of debris on site but all of those came back negative. The ministry has ordered the owner to seal off the areas with asbestos and develop by Feb. 14 a plan for removing it. Mayor Eddie Francis said the development means city council will not decide what to do about the property until after that. "We will benefit from the information -- we being the city -- that will be in that report on Feb. 14 because that will put the city in a position to be more informed in terms of what is on that site should the city decide to step in and take action," he said. The city had planned to take action on the site within the week. The city was to choose to demolish or clean up the site itself. That's because owner Lou Vozza missed a Jan. 30 deadline to have the site clean and secure. The first mortgage holder, Westpark Developments, stripped Vozza of the cleanup responsibility and was doing the work itself. The mayor could not say whether the discovery poses any danger to neighbors. "By taking these steps they are protecting the neighborhood," the mayor said. A local contractor who specializes in asbestos removal said there likely isn't much risk to neighbors. Rick White of R.C. White, Ltd. said that based on his knowledge of asbestos, what he's seen in photos and video taken at Grace and the report released Feb. 8 that there is not a "major concern." White was asked to rate the danger on a scale of one to 10, with one being not concerned and 10 being alarmed. "I say one to two," White said. "If there's debris laying around or there was not the proper procedures in place, to contain the dust, then yes it could get airborne." But even if that happens, White says it would be trace amounts. The Grace site was once supposed to be converted to a nursing home, but those plans have been abandoned. ASBESTOS UPDATE: Widow of Geelong Ex-Worker Sues Alcoa ------------------------------------------------------ Daniel Fogarty of the Australian Associated Press reports Aluminum producer Alcoa would have known of the dangers of asbestos when a man who has since died of mesothelioma worked with the substance at its Geelong plant in the 1960s, a court has been told. David Grant, 82, had been an active, happy and outgoing man until about six months before he died in July 2010, the Victorian Supreme Court heard on Feb. 8. Mr. Grant was exposed to asbestos dust and fibers while he worked on construction of the Alcoa Point Henry smelter plant between 1962 and 1964, his barrister Jack Rush, QC, told jurors. Mr. Grant's widow Margaret Grant is suing Alcoa of Australia Limited for damages for loss of enjoyment of life and medical costs. Opening the trial, Mr. Rush said Alcoa should have been aware of the dangers of asbestos, which had been documented in public records and medical journals dating back to 1898. He said Alcoa was not a Johnny-come-lately backyard business, but a very large company with many resources. Mr. Rush said Alcoa breached its duty of care to its employee -- Mr. Grant -- by exposing him to asbestos. Mr. Grant's jobs included cutting asbestos with a large saw and using an asbestos paste, the court heard. "The dust created, as you might expect, was quite enormous," Mr. Rush said. At times Mr. Grant's overalls were often covered in the dust and it went into his mouth and ears, the court heard. Mr. Rush said Mr. Grant received "quite an extraordinary exposure to asbestos". Mr. Grant's son-in-law Stephen Webb, who was also one of his doctors, told the court the Scottish-born Mr. Grant was an active man until about six months before his death. In about January 2010 he became lethargic and experienced shortness of breath, Dr. Webb said. As the months went by his condition deteriorated, he said. Dr. Webb told the court about a decade before his death Mr. Grant had a stroke and had a heart valve replaced. Under cross examination, Michael Thompson, for Alcoa, suggested that Mr. Grant had suffered from a number of significant medical conditions. Dr. Webb said he did not believe the conditions had impacted on his life. The trial is before Justice Stephen Kaye. ASBESTOS UPDATE: Wansbeck MP Slams DfE's reaction to APPG's Report ------------------------------------------------------------------ Roger Bagley of The Morning Star online reports that Left Labour MP Ian Lavery flung down a challenge to government ministers to act now or risk the lives of tens of thousands of schoolchildren and teachers from killer asbestos. The Wansbeck MP issued his urgent call after meeting a complacent response from Education Minister Nick Gibb in a Commons debate on the asbestos menace lurking in 75% of Britain's schools. Mr. Lavery warned that even commonplace classroom activities such as placing drawing pins in the wall or slamming the door could release "frightening" levels of asbestos fibers. Slamming a classroom door five times "could release levels of amosite fibers more than 600 times greater than outdoor levels," said Mr. Lavery as he launched an adjournment debate of Feb. 7. Mr. Lavery spotlighted the danger facing teachers and pupils in the wave of new free schools and academies because of confusion over who was responsible for monitoring and clearing asbestos from the buildings. Mr. Gibb stumbled when Mr. Lavery asked him to tell the house precisely who would be responsible for asbestos management in free schools. In a rambling reply, the minister stated: "The duty to manage is the duty of the employer. "In academies and free schools that would be either the governing body or the academy trust. "However, I will write to the honorable gentleman shortly to ensure that I am correct on the technical question of who precisely is the employer in those circumstances." Mr. Lavery demanded a clear government strategy for tackling asbestos in schools following earlier this month's shock report from the all-party parliamentary group on occupational safety and health. But the minister rejected the report's key demands and insisted that the government was following Health and Safety Executive advice that if asbestos was in "good condition" it was safer to leave it in place than to remove it. The minister said the government did not propose to introduce mandatory asbestos awareness training for teachers, governors and staff. Nor would it introduce the U.S. system of regularly informing parents and school staff about asbestos and how it was being managed. The Minister promised MPs a review of asbestos advice to schools later this year following an ongoing investigation into the vulnerability of children to low levels of exposure, commissioned by the asbestos in schools steering group under junior minister Lord Hill. ASBESTOS UPDATE: Republicans Block $451,000 Demolition Project -------------------------------------------------------------- Patrick Malone of The Pueblo Chieftain reports that a bid by House Democrats to secure funding for the demolition of an asbestos- contaminated building near the Colorado State Fair in Pueblo failed on Feb. 7. Rep. Sal Pace, D-Pueblo, proposed adding a $451,000 project to level the vacant Naval and Marine Corps Reserve buildings at Northern and Acero avenues to the capital development budget that the General Assembly is considering. However, Republicans blocked the allocation by a 33-32 vote when Rep. Keith Swerdfeger, R-Pueblo West, reversed his course and joined the GOP chorus against the allocation after first speaking out in support of it. Pace cited an assessment conducted by the Colorado State Fair that showed airborne asbestos from the building could pose a threat to nearby residents. "We're setting ourselves up for liability on this issue, and someone could get sick from this," he said. Pace said the State Fair would like to use part of the property for parking, and the Army National Guard next door would like to expand onto the space. Swerdfeger initially pointed to the asbestos-tainted ice house fire in Pueblo's Midtown neighborhood seven years ago as a reason that Republicans should join him in supporting the demolition. "When that building collapsed, all that asbestos went everywhere," he said. "All the water fighting the fire took that asbestos into the soil. The bill to clean up that building was $7 million." Later, Swerdfeger backtracked and cast the vote that killed the allocation. He said arguments from his fellow Republicans on the issue were not raised at the appropriate time. Its possible impact on other projects and the Department of Agriculture's decision not to prioritize the work changed his mind, Swerdfeger said. Colorado State Fair General Manager Chris Wiseman said he was disappointed that Pace's effort to fund the demolition failed. He said the state Department of Agriculture for more than a decade has been hopeful that the federal government would abate the health threat, but with each passing year it seems less likely. ASBESTOS UPDATE: London Subway Workers Raise Exposure Concerns -------------------------------------------------------------- Shane Croucher of The International Business Times reports that asbestos is "all over the place" on London Underground and the east end of the Central line is "in a bad way", a Tube worker has told International Business Times UK. Alan Jenkins, a Tube signal worker and RMT union activist, said: "[The east end of the Central line] is in a bad way. [The asbestos] is above and beyond anywhere else on the whole of the Underground system." Jenkins said the asbestos runs all the way along the tunnel walls from Mile End station to the east end of the line. "They have painted it with encapsulating paint. The concern we have got is that paint could easily chip off and expose the asbestos. "No matter what, they won't remove it. It costs too much money and takes too long. They are going to leave it there. "So we're trying to get safety measures put in place, which have been partially successful. But then there are still whole departments working down there without adequate procedures to deal with it," he said, adding that workers fear someone could chip the paint by dropping a tool on it, thereby exposing the asbestos." Transport for London (TfL) is "reluctant" to deal with the asbestos, according to Jenkins, because it would entail disruption to staffing and work programs, including line improvements. "It is more important to get the work done than it is to get it done in a manner that is safe for the workforce and the public," he claimed. Asbestos was extensively used as insulation by builders until laws in the 1980s and 1990s curtailed its use. If the fibers are inhaled, they can cause respiratory diseases and cancer, such as mesothelioma. A Central Line commuter told IBTimes UK that she overheard two Tube workers talking about the deadly substance. One Tube worker said he was going on "asbestos training". He added that he worries about exposure to asbestos on the London Underground system, but that it is part and parcel of working in ageing infrastructure. When asked how much of a problem he thought it was on the Underground, he replied: "It wouldn't surprise me if we're breathing this s**t in down here." TfL said it had strict controls in place, in line with the Control of Asbestos Regulations 2006, meaning passengers and staff "are not at risk from exposure to asbestos fibers when travelling on the Underground". "TfL has robust rules in place, which means that work teams know in advance if there is asbestos-containing material in their work location before they start work," a spokesman said. "There are strict training requirements before staff go on site and strict procedures for making sure that workers are protected." The transport service insists it has taken "every opportunity" to remove asbestos from the Underground system. Staff are also required to undergo health and safety training that covers dealing with asbestos. "If staff are required to work in areas where there are asbestos- containing materials, specific control measures are put in place to prevent uncontrolled disturbance and to protect workers from the hazards associated with asbestos at this location," the spokesman added. ASBESTOS UPDATE: 4 Lawsuits Filed in St. Louis Circuit Court ------------------------------------------------------------ Kelly Holleran of The Madison/St. Clair Record reports that St. Louis circuit court appears to have an active asbestos docket. At the end of last month, four new complaints were filed in the 22nd Judicial Circuit in the City of St. Louis. The Simmons firm of Alton brought two of them. Louise Della-Croce sued 16 defendant corporations on Jan. 26; Kathleen A. Kelly filed a lawsuit Jan. 23 against 39 defendant corporations; Khachick Khodadadi filed a lawsuit Jan. 26 against 15 defendant corporation; and Raymond Pitrucha Jr. and Rhonda Marsh of Missouri filed a lawsuit Jan. 26 against 18 companies. Della-Croce, Kelly and Khodadadi do not specify where they reside. Della-Croce, Kelly and Khodadadi will be represented by Christopher R. Guinn -- cguinn@simmonsfirm.com -- Myles L. Epperson -- mepperson@simmonsfirm.com -- and William A. Kohlburn of Simmons, Browder, Gianaris, Angelides and Barnerd in Alton. Pitrucha and Marsh will be represented by Aaron K. Dickey of Dickey Law Firm in St. Louis and by Devin C. McNulty and Troy Chandler of Williams, Kherkher, Hart and Boundas in Houston. In her complaint, Della-Croce alleges the defendant companies caused her recently deceased husband, Albert Della-Croce, to develop mesothelioma after his exposure to asbestos-containing products throughout his career. The complaint does not indicate where Della-Croce resides, however it states that he worked as a farmhand, driver, refrigeration pipefitter and laborer in Colorado and California, according to the complaint. In her complaint, Kathleen Kelly alleges her mother, Anna Marie Kelly, developed mesothelioma after she worked as a receptionist, ranch worker, laborer and clerical worker at various locations from 1976 until 1992. She was also secondarily exposed to asbestos fibers through her ex-husband, Thomas Tegro, who worked as a laborer from 1976 until 1983, the suit states. In her complaint, Khodadadi alleges she developed mesothelioma after she worked as an accounting and financial analysis advisor from 1969 until now. Pitrucha and Marsh allege their recently deceased father, Raymond Pitrucha Sr., developed lung cancer after his exposure to asbestos products throughout his career as a laborer, drywaller and sheet rocker from 1960 until the 1990s throughout several Midwestern states. The defendants should have known of the harmful effects of asbestos, but failed to exercise reasonable care and caution for the plaintiff's safety, the suits state. As a result of their asbestos-related diseases, Albert Della- Croce, Anna Marie Kelly, Khodadadi and Raymond Pitrucha Sr. became disabled and disfigured, incurred medical costs and suffered great physical pain and mental anguish, the complaint says. In addition, they became prevented from pursuing their normal course of employment and, as a result, lost large sums of money that would have accrued to them, the plaintiffs claim. Because of Albert Della-Croce's, Anna Marie Kelly's and Raymond Pitrucha Sr.'s deaths, their families have incurred funeral costs and have been deprived of their support and society. In her four-count complaint, Louise Della-Croce is seeking actual and compensatory damages of more than $50,000 and punitive and exemplary damages of more than $50,000, plus other relief the court deems just. In her four-count complaint, Kathleen Kelly is seeking punitive and exemplary damages of more than $50,000 and actual and compensatory damages of more than $50,000. In her four-count complaint, Khodadadi is seeking actual and compensatory damages of more than $50,000 and punitive and exemplary damages of more than $50,000. In their four-count complaint, Raymond Pitrucha Jr. and Marsh are seeking actual and compensatory damages of more than $125,000 and punitive and exemplary damages of more than $50,000 and punitive damages in an amount sufficient to deter Ferris Kimball from performing similar acts in the future, plus costs and other relief the court deems just. St. Louis Circuit Court case numbers: 12-L-408, 12-L-443, 12-L-442, 12-L-438. ASBESTOS UPDATE: Ministry Says Family of Ex-Royal Navy Ineligible ----------------------------------------------------------------- ThisisGloucestershire.co.uk reports that the family of an ex- serviceman who died from exposure to asbestos has criticized the Ministry of Defence for not compensating them. Royal Navy stoker Albert Hooper, from Churchdown, died on Sept. 23 at Gloucestershire Royal Hospital as a result of his work in asbestos-filled boiler rooms on ships 47 years ago. Mr. Hooper spent 12 years working in boiler rooms at a time when all the pipe work on ships was lagged with asbestos. In the prior week, a coroner directed that Mr. Hooper died from the industrial disease. Natalie Hooper, Albert's daughter, has criticized the Royal Navy for not supporting her family following the ordeal. She said the Ministry of Defence told her that, because her father was in contact with asbestos before 1984, his family were not eligible for compensation. Natalie, 32, said: "My father was very proud of the years he spent in the Navy and to be told that the MOD won't touch the case is devastating. I can't believe they won't help us. "My mother is distraught without him. "This wasn't his time to go and I think it is appalling that they would do this to us and other victims' families." Mr. Hooper fell ill in June of last year. Natalie paid tribute to him. "He was a brilliant dad and a marvelous granddad to his 17 grandchildren," she said. "Everyone in Churchdown knew him. All the neighbors loved him because he would do anything for anybody," she added. Natalie said her father was not aware of the danger his time in the Royal Navy posed to his health until doctors diagnosed him with mesothelioma -- a cancer caused by asbestos. A spokesman for the Veterans Agency, for the Ministry of Defence, confirmed the Hoopers were not eligible for compensation under their guidelines. But he urged the family to contact the agency directly because Mr. Hooper's wife may be eligible for a war pension if his death was attributed to his time in the Navy. ASBESTOS UPDATE: McGill U Probes McDonald Research for Misconduct ----------------------------------------------------------------- The Canadian Press reports that McGill University says it is reviewing the findings of a major research project into the asbestos industry and cancer caused after a CBC News investigation raised questions about links between the research and industry interests. David Eidelman, the university's dean of medicine, says allegations in the CBC report that several decades of research led by J. Corbett McDonald could have been influenced by the asbestos industry must be taken seriously. But he also says holding scientific views different from those of the majority does not constitute research misconduct. McDonald, who is now retired, began studying mortality rates associated with asbestos in 1966, looking at about 11,000 Quebec miners and millers of chrysotile, an asbestos fiber. He and his research team published a series of studies between 1971 to 1998 which were funded in part by the Institute of Occupational and Environmental Health of the Quebec Mining Association, something which McDonald acknowledged. While Eidelman says McDonald drew different conclusions about the safe use of asbestos from some current-day authorities, he did demonstrate that asbestos is a carcinogen associated with lung cancer and mesothelioma. ASBESTOS UPDATE: Law Firm Updates Web Site for U.S. Army Veterans ----------------------------------------------------------------- Clapper, Patti, Schweizer & Mason urges all U.S. Army veterans diagnosed with mesothelioma, asbestos cancer, or asbestosis to use the resources their law firm offers to help them know the best way to get financial compensation to help pay for their mesothelioma treatments and to provide for their families. The website of CPSM was recently updated to include even more information for Army veterans diagnosed with mesothelioma. The US Centers for Disease Control (CDC) estimates about 3000 people in the United States will be diagnosed with mesothelioma this year. Of that, about 30% will be veterans from all branches of the military. Although Navy veterans were and are most at risk, Army veterans also have a heightened risk due to the likelihood of exposure to asbestos during service. Mesothelioma is a fatal cancer that develops in the lining of internal body cavities, such as the heart, lungs, and abdomen, and is caused by exposure to asbestos. Thousands of construction and industrial products were made with asbestos, especially up until the mid-1980's. These materials, such as asbestos containing insulation, roofing, flooring, wall board and caulking, were then used aboard ships and to construct military housing and mess halls, causing high potential for all those that served in the military, including Navy, Air Force, Marines, Coast Guard and Army, to be at risk of mesothelioma. CPSM is particularly concerned that Army veterans know they have a right to financial compensation outside of the Veterans Administration (VA). Veterans with asbestos related diseases can file a mesothelioma law suit or asbestos bankruptcy claim against asbestos companies responsible for the products that caused their illness. The key for Army veterans, or anyone diagnosed with mesothelioma, is to get experienced asbestos attorneys who have expertise in filing claims on behalf of veterans and a long history of winning awards against asbestos manufacturers. CPSM has specialized in assisting veterans diagnosed with mesothelioma for over three decades. Contact CPSM today at 1-800-440-4262 for a free case evaluation or to request a comprehensive brochure explaining your rights, how to file a mesothelioma lawsuit, mesothelioma treatment options, and other support services for those diagnosed with asbestos related illnesses. ASBESTOS UPDATE: Simmons Is Platinum Sponsor to 2012 AIAAC ---------------------------------------------------------- The Simmons Firm, a leading asbestos and mesothelioma law firm, will be a platinum sponsor of the 8th Annual International Asbestos Awareness Conference. The conference, organized by the Asbestos Disease Awareness Organization (ADAO), will be held March 30-April 1, 2012, at the Manhattan Beach Marriott in Manhattan Beach, Calif., to bring leading international experts together to discuss asbestos as a global public health crisis. "The Asbestos Disease Awareness Organization is extremely grateful to Simmons Law Firm for being a 2012 Platinum sponsor for our Annual Asbestos Awareness Conference," said Linda Reinstein, president of ADAO. "Through their generous support and donations, ADAO has been able to continue our educational, advocacy and community support efforts. Simmons' unwavering support to prevent asbestos-caused disease is truly appreciated and respected throughout our ADAO community. Together, change is possible." Topics covered at this year's conference will focus on novel treatments for pleural mesothelioma; asbestos use in India, Brazil and other international countries; legal asbestos use in America and why a total ban is needed; and an investigation into the need to enforce current asbestos regulation. Conference speakers include Dr. Richard Lemen, retired Assistant Surgeon General; Dr. Dan Sterman, director of Interventional Pulmonary Services at Penn Medicine whose medical interests include mesothelioma; and Joel Shufro, executive director of the New York Committee for Occupational Safety & Health. Barbara McQueen, wife of the late actor, Steve McQueen, will be giving the Sunday keynote speech during the Unity and Remembrance Brunch. "The International Asbestos Awareness Conference provides a forum for advocates, patients and medical researchers to join together and promote awareness about the important public health issue of asbestos and its related diseases," said John Simmons, chairman of the Simmons Law Firm. "Our continued support of ADAO and its annual conference is just one part of our own mission to support our clients and the mesothelioma and asbestos-related diseases community as much as possible." The Simmons Law Firm has a long-standing commitment to support individuals and families impacted by asbestos-related diseases in and out of the courtroom. With this mission, the firm has pledged more than $20 million to cancer research, and has been a top cumulative donor to non-profits like the Asbestos Disease Awareness Organization, the Mesothelioma Applied Research Foundation and Miles for Meso 5K Races. About Simmons Browder Gianaris Angelides & Barnerd LLC The Simmons Firm, headquartered in Alton, Ill., is one of the country's leading asbestos and mesothelioma litigation firms. With offices in Illinois, Missouri and California, the firm has represented thousands of patients and families affected by mesothelioma in every state. The Simmons Firm has pledged over $20 million to cancer research and proudly supports mesothelioma medical researchers throughout the country in order to find a cure. For more information about the Simmons Firm, visit http://www.simmonsfirm.com/ ASBESTOS UPDATE: DNR Likely to Employ Wet Method at Joplin High --------------------------------------------------------------- The Mesothelioma News Center reports that the Joplin, Missouri School District announced that changes in asbestos handling regulations are continuing to slow down the demolition of severely ravaged schools in that city. An article in the Joplin Globe reports that the Missouri Department of Natural Resources (DNR) has changed the method of asbestos abatement required at the next damaged school to be addressed, the old South Middle School on West 22nd Street. The article notes that instead of using the wet method of removal -- which involves dousing the building with water as it is demolished -- the DNR has decided that all asbestos inside the former school needs to be removed before demolition commences. Mike Johnson, director of buildings, grounds, and transportation for the Joplin School District, says that he understands the changes. Some of the buildings that have already come down were in danger of immediate collapse, so the wet method was deemed safer and more appropriate. Because South Middle School is considered to be still stable, pre-demolition removal is deemed necessary. Nonetheless, the new regulation adds more dollars to the cost of cleaning up the schools damaged after a fierce tornado hit the city last summer. "The actual situation for each of those schools [that have been damaged] is going to be different," explained DNR Director of Communications, Renee Bungart. "They're still sampling, monitoring, and removing items that contain asbestos, and wrapping those items and properly disposing of them." The EPA has recently questioned the overall use of the wet method, stating that it "largely mitigates the release of fibers" but that prolonged exposure to the fibers released into the air may "increase the amount of fibers deposited in the lungs." David Bryan, public affairs specialist with the regional EPA in Kansas City, Missouri, explained that when fibers become imbedded in lung tissue, they have the potential to cause asbestosis, lung cancer, or the aggressive asbestos-caused cancer known as pleural mesothelioma. Bungart told reporters that the DNR is still waiting for a determination as to which method will be used at Joplin High School, which must also be demolished in the near future. As that structure has been deemed structurally unstable, it is highly unlikely that asbestos removal will occur before demolition. Most likely, the wet method will be used. ASBESTOS UPDATE: James Hardie Pledges AU$109MM to Asbestos Victims ------------------------------------------------------------------ The Australian Associated Press reports that the High Court of Australia dismissed the Australian Taxation Office or ATO's application for special leave to appeal a 2011 Federal Court decision that had been in favor of James Hardie. The dismissal by the High Court finalizes the dispute, which had run since 2006. As a result, the ATO is obliged to refund AU$248 million, plus interest, which James Hardie estimates will be about AU$63 million. A portion of the company's legal costs will also be paid by the ATO. James Hardie said it would contribute 35% of the refunded amount, or AU$108.85 million, to the asbestos injuries compensation fund if it is received before the end of March. The fund was set up by James Hardie in 2006 to compensate sufferers of asbestos-related diseases, and relies on annual contributions from the company's free cash flow. The legal dispute with the ATO related to an amended tax assessment provided to a James Hardie subsidiary, RCI, in 2006. The amendment related to net capital gain arising from an internal restructure in the company in 1998. The ATO disallowed RCI's objection to the amended assessment in 2007, and RCI took the matter to the Federal Court. The Federal Court dismissed RCI's application, but a subsequent appeal to the Full Federal Court in August 2011 was upheld. James Hardie shares were up 12 cents, or 1.6%, at $7.55 on Feb 10. ASBESTOS UPDATE: Weitz & Luxenberg Attorney Joins Florida Race -------------------------------------------------------------- Mesothelioma attorney Kevin Mulderig of the New York-based law firm Weitz & Luxenberg, P.C., was slated to join a Feb. 12 Florida race to raise funds for asbestos cancer research, despite a hip condition that prevents him from running. Mulderig hopes to inspire those mesothelioma cancer patients by figuratively walking at least a mile in their shoes -- shoes he for now will borrow but may end up actually owning, since he himself is at risk of developing mesothelioma. "My clients have it; I could get it," says Mulderig, 53, a Philadelphia native now living in that city's Bucks County suburbs. "Exposure to asbestos is the overwhelming, if not exclusive, cause of mesothelioma." It was while serving in the Navy during the early 1980s that Mulderig -- then an ensign aboard the aircraft carrier USS Saratoga -- suffered his potentially lethal brush with the toxic mineral. "Saratoga was in dry dock at the Philadelphia Navy Yard to be retrofitted with modern technology," says Mulderig, who supervised 600 crewmen assigned to help replace pipes and ducts on the lower decks. "Like everyone from the captain on down, I had no inkling that asbestos was dangerous stuff -- until the day I happened to see an asbestos-insulated vent shaft being pulled down from the overhead." Shipyard civilian personnel had sealed off that work area with a protective curtain of plastic sheeting, Mulderig explains. As the vent shaft was demolished, clouds of asbestos dust billowed in all directions. The enclosure was meant to contain the dust, but failed. Says Mulderig, "The stuff spilled out over the top and escaped through flaps in the sides. It ended up all over the place. There's no question that some of it got on me." But four of his men got it worse. They were inside the enclosure -- and wore no protective gear. That's when Mulderig noticed three civilians also within the enclosure. They were wearing bio- hazard moonsuits. "I asked them, why the outfits? They explained it was because asbestos is dangerous and can kill you." Mulderig says he then promptly alerted his superiors. Bio-hazard suits were unavailable, so he and the crew members were instead supplied with goggles and filtration masks. Mulderig wonders now whether those measures were adequate and if mesothelioma will be his fate. "It takes about 30 or 40 years for mesothelioma to show up after exposure to asbestos, so I guess I'll know soon enough," he says. "But if I do happen to develop it, there's currently nothing that medical science can do to stop it from killing me -- death can only be delayed." Not by long, though. "Most victims die less than a year after they're diagnosed," he says. "That's why on Feb. 12 we're going down to Florida where the race will be held -- it's to raise awareness and to raise money for research that we hope leads to a cure, or at least a much longer mesothelioma life expectancy." Mulderig went to law school after leaving the Navy in 1983, and has been a practicing attorney now for 25 years. He works in the Cherry Hill, N.J., office of Weitz & Luxenberg, a mass-torts and personal injury litigation law firm out of Manhattan that has secured more than $6.5 billion in verdicts and settlements for its clients, many of them mesothelioma victims and their survivors. (Erin Brockovich, the environmental-health crusader portrayed by Oscar-winning actress Julia Roberts in a 2000 motion picture, is affiliated with Weitz & Luxenberg and appears in the firm's television commercials.) Nearly all of the cases today handled by Mulderig involve former servicemen -- Navy mainly -- who suffered asbestos exposures that can be traced back to a tour of duty. "It's a genuine privilege for me to take these cases," he says, "because I'm able to represent the good guys -- and nobody but the good guys. That's what the victims of mesothelioma are. Good guys. Heroes. Every last one of them." ASBESTOS UPDATE: CSUN Has No Plans to Remove Nonfriable Hazmats --------------------------------------------------------------- Laura Davis of The Daily Sundial reports that the CSUN environmental health & safety department disseminated a report in January that lists 18 buildings on campus with remnants of asbestos-containing materials. The California Health and Safety Code requires the university to put out an annual notification to alert people of exactly where the asbestos is located in the buildings. "As long as the asbestos is not disturbed, it is not a health hazard," said Antonio Pepe, assistant director of environmental health and safety. "This notification is to give folks an idea of where these materials are so they don't disturb them." Faculty and students are advised to avoid drilling holes, or hanging objects from walls or ceilings where asbestos has been found, according to the report. Over the past 15 years, asbestos has been taken out by building renovation projects, according to an email from the environmental health & safety department. "A large majority of the asbestos was removed in these buildings as a result of the 1994 earthquake," said Lynn Wiegers, interim executive director of physical plant management. The asbestos remnants were discovered through detailed building inspections, material sampling and laboratory analysis that met the National Institute for Occupational Safety & Health and Environmental Protection Agency standards, according to the annual report. Specific contaminated building parts include: floor and ceiling tiles, thermal pipe insulation, weather stripping, putty, and both hot and cold water pipes. Not every building contains asbestos in all of the listed areas. According to the report, asbestos-containing materials pose no health threats unless its fibers become airborne due to deterioration, or as a result of damage. "I didn't believe it was really that harmful to be around. I thought everyone was over-exaggerating," said Frank LeClair, a contractor who suffers from lung problems possibly related to asbestos exposure. As of now, CSUN has no plans to completely remove all of the asbestos. "It's not a hazard as it is where it's located. As we go through various projects and we work in various areas we take the opportunity to remove it as part of those projects," Pepe said. ASBESTOS UPDATE: Unaware Helensburgh Residents Slams Abatement -------------------------------------------------------------- Tina Kemp of the Lennox Herald reports that worried residents watched in horror recently as masked workmen in safety suits removed dangerous asbestos from the roof of a Helensburgh building. The workers were taking away the toxic substance from the former Quorum premises in James Street which is being converted into a Wetherspoon's pub. The residents have slammed Argyll and Bute Council for not warning them about the removal of the asbestos. Gordon White, speaking on behalf of residents in Scott Court and James Street, said neighbors were shocked to see the workmen appear. He said: "We had heard that they needed to ask the council for permission because notifiable asbestos had been discovered. The council must have OK'd that but it wasn't publicized. "As there is a mix of familes with young children and elderly and retired folks living close to this, plus local shops and pedestrians, surely it would have been courteous to have let folks know?" A local community councilor had phoned the council to be told that it was not required to inform the public and that it was at the discretion of the contractors whether they advise neighboring properties. Mr. White continued: "It seems strange that we don't need to be informed, yet the workmen are clad in special suits and wearing masks for their breathing. "That stuff was in the air and there were children around and people walking past. They were just breaking bits of it off." Planning permission for the pub, due to open in May, has already caused controversy with many nearby residents objecting, especially as there is already another pub in the same street. A spokeswoman for Argyll and Bute Council said: "Two of our officers have visited the site and spoken to the site agent. "Low grade cement based asbestos roof sheeting covering part of the building has been removed by a specialist contractor and taken off the site. "The work was low risk in nature and therefore non-notifiable to inspecting bodies. "The roof sheet fixings had been mechanically removed and any small broken fragments of roofing as a result of the cutting had been bagged and removed from site. "The site was then tested for fibers and subsequently had a clean air certificate issued. "In relation to the concerns of the residents, there was no statutory duty on the council to advise of the removal of asbestos (indeed the council was not aware of such activity taking place, as the works were not subject to statutory notification) nor was there such need for notification from the contractor." ASBESTOS UPDATE: McGill U Probe Over Research Criticized -------------------------------------------------------- CBC News Montreal reports, a group of anti-asbestos activists and scientists are criticizing McGill University's plans for an internal review of a major asbestos research study that has been called into question. In a letter dated Friday, Feb. 10 to Dr. David Eidelman, the school's dean of medicine, 20 activists and scientists called on McGill to carry out a "thorough, independent and transparent investigation" of the original study, which they claim is "flawed, lacks transparency and contains manipulated data." On Feb.9, McGill said it would review the findings of the study, which was led by J. Corbett McDonald, after a CBC documentary aired about the university's past ties to the asbestos industry. Eidelman has said the allegations in the CBC report must be taken seriously, although he has also defended McDonald's work, saying that holding scientific views that are different from those of the majority does not constitute research misconduct. However, the critics are panning the university's planned review. In their letter to Eidelman, the activists and scientists said that Prof. Rebecca Fuhrer, the school's chair of the department of epidemiology, biostatistics and occupational health, and the person chosen to do the internal review, is in a conflict of interest because McDonald is still a professor emeritus of the department of epidemiology. "You also state that you expect Prof. Fuhrer's review to be completed next week. Given the serious nature of the concerns raised, this does not indicate a credible review," the group said in their letter. The major research study led by McDonald, which followed the health of 11,000 miners and mill workers in Quebec between 1966 and the late 1990s, is used by the Chrysotile Institute -- a lobby arm funded by, overseen and closely associated with both the former Liberal and Conservative governments -- to promote the use of asbestos overseas. The McGill researchers would suggest in a 1997 study that cases of mesothelioma occurred in "most, if not all," miners who had a greater exposure to tremolite, a more dangerous contaminant than chrysotile, and that the mines close to the centre of the town of Thetford, Que., were the ones most contaminated with tremolite. McDonald suggested that chrysotile was "essentially innocuous" at certain levels and advocated for its export to the Third World. CBC has obtained documents that show payments from the Quebec Asbestos Mining Association to McDonald and other researchers at the McGill school of occupational health totaling almost a million dollars from 1966 to 1972. Eidelman has said that McDonald's work demonstrated that asbestos, including chrysotile asbestos, is a carcinogen associated with both lung cancer and mesothelioma, a cancer of the lining of the lung. ASBESTOS UPDATE: Redwood Elementary Abatement to Last for Month --------------------------------------------------------------- Karen Yi of West Orange Patch reports that school officials are working on removing asbestos in the ceiling at Redwood Elementary School in West Orange. The abatement process began earlier this month and will displace several classrooms to other areas of the school to maintain the students' safety. Superintendent of Schools Dr. Anthony Cavanna assured there will be no danger to the children at the school. "Right now the asbestos is sealed in the ceiling . . . in five to six days, the asbestos will be removed," Cavanna said. He said that because a leak in the ceiling could not be found, workers will have to open up the ceiling to look for the leak -- a process that will take several weeks. The asbestos will then be located and removed. Cavanna said the whole project will take four weeks. A meeting was held at the school to discuss the plan with the parents who were upset by what they said was poor communication by the district on the issue. "My concern was that I knew nothing about anything. A note came home . . . that said there would be repairs, but it had no information (about asbestos)," said one Redwood parent who did not want to be identified. Another parent who did not want to be identified said one of her children had been displaced from his classroom for the past three weeks without her knowledge. "My son is in the class directly affected and for three weeks he has been displaced from his classroom, carrying his books back and forth everyday," she said. "They didn't tell us about the leak." She said she did not receive adequate notice from the school, only that "renovations" were to take place. She said parents began contacting the school to find out why their kids were coming home with their books. "It was miscommunicated from the beginning," she said, insisting that her issue was with transparency not the asbestos leak. "Asbestos is a situation that's unfortunate, but that's all OK, those things happen. I can't be angry with the school for that . . . but it was not handled forthright." Cavanna told Patch the situation had been "rectified" after he met with the parents and took responsibility for the lack of information. He reiterated the students' safety was a priority and that undisturbed and contained asbestos was not damaging to students. "In West Orange we took care of all of the major problems we had but things like in the ceiling that are encapsulated, we've been doing that as we have money to do that. But in this particular instance, there was a leak in the ceiling that we couldn't find." The two rooms next to the boiler where the work will take place will be completely sealed off to the students and work will only be completed after school hours. Air quality tests will be performed daily to ensure the school can safely re-open for the students every morning. The treatment is taking place now so that the students will be able to return to their classrooms and finish out the rest of the year. If the district decided to wait until the summer, the students would be displaced for the rest of the year, Cavanna said. ASBESTOS UPDATE: Pueblo Rep Blows Top on Naval Building Snub ------------------------------------------------------------ Patrick Malone of The Pueblo Chieftain reports that Pueblo Rep. Sal Pace erupted on Feb. 9, at a mountain-town representative's claim that removing an asbestos-laden building near the Colorado State Fair is not a priority for the community. "Don't tell me what my city thinks," Pace, a Democrat, said loudly. Rep. Cheri Gerou, R-Evergreen, said she contacted the state architect and was told that abating the problem of airborne asbestos and lead paint at the Naval and Marine Corps Reserve building at Northern and Acero avenues was not of paramount concern in Pueblo. "When they talked to the local entity that is dealing with this building, they were not concerned about it," Gerou said. Pace referenced a letter from Pueblo City Council that he shared with the Colorado House urging action on the building and expressing concern about the health ramifications to residents in its neighborhood. "Don't tell me what my constituents want," he said. Nonetheless, the House voted 51-12 to approve a list of construction projects that did not include the $450,000 abatement that Pace sought. Rep. Keith Swerdfeger, R-Pueblo West, originally supported the project, but later voted against it on Feb. 7 and again on Feb. 9. ASBESTOS UPDATE: Rise In Usage of Deadly Fibers Alarms Watchdogs ---------------------------------------------------------------- Belluck & Fox, LLP, sponsored MesotheliomaHelp.net reports that the recent release of the United States Geological Survey's (USGS) Mineral Commodity Summaries 2012 has left many mesothelioma advocates shocked by the discovery that the U.S. continues to increase the amount of asbestos imported into the country. Asbestos is proven to cause deadly respiratory illnesses including mesothelioma, lung cancer, asbestosis and countless other pulmonary diseases. For years, medical professionals, environmentalists, lawyers, and others affected by the tragedy of asbestos exposure, have been calling for a ban of asbestos. The only way to eliminate the deadly asbestos-caused diseases is to eliminate exposure to the deadly toxin. In fact, in December the U.S. Environmental Protection Agency issued a warning saying, "asbestos is a human carcinogen with no safe level of exposure." In a prepared statement, Linda Reinstein, co-founder and president of the Asbestos Disease Awareness Organization (ADAO), said she "was appalled and shocked to discover" that according to the report, U.S. industries consumed 1,100 metric tons of asbestos from January through July 2011, compared to 820 metric tons during the same period in 2010. The difference represents a 34 % increase in consumption. The report indicates that the use of asbestos in 2011 and the preceding 5 years is the lowest it has been in the United States since 1909. Further, the USGS reports that in 2011, U.S. apparent consumption increased by 6%, but it is unlikely to represent any resurgence in the asbestos industry. The report suggests that based on current trends, U.S. asbestos consumption is likely to remain near the 1,000-ton level in the near future. The U.S. relies 100% on asbestos imports. The primary sources are Canada (92%) and Zimbabwe (6%). Reinstein issued an appeal to Congress and President Obama, saying: "On behalf of the Asbestos Disease Awareness Organization (ADAO), I am calling on Congress and the President to immediately prohibit the importation of raw asbestos and asbestos-containing products from crossing our borders to protect public health. I have lost my husband, Alan, to Mesothelioma, a disease caused from asbestos exposure. Nothing can bring him or the hundreds of thousands of other victims back to life, but we can begin by aggressively preventing exposure thus eliminating deadly diseases." Symptoms of mesothelioma such as shortness of breath, pain in the chest, and a persistent cough, often appear 20 to 50 years after exposure. Most cases of mesothelioma are not diagnosed until symptoms appear and the disease has progressed to an advanced stage leaving the patient with life-threatening complications. Once the disease has reached an advanced stage, median survival is often less than one year. ADAO was founded by asbestos victims and their families in 2004. ADAO seeks to give asbestos victims and concerned citizens a united voice to raise public awareness about the dangers of asbestos exposure. ADAO is the largest independent organization dedicated to preventing asbestos-related diseases. ASBESTOS UPDATE: Construction Firm Slapped With GBP10,000 Fine -------------------------------------------------------------- Wiltshire Times reports a building firm in Bradford on Avon has been given a GBP7,000 fine after admitting removing an asbestos insulation board from a house in an unsafe manner. Chippenham Magistrates' Court heard the removal was carried out while DB Construction (West Wilts), of Frome Road, revamped a home in November and December, 2010. An electrician, also working on the house, raised concerns that ceiling boards could contain asbestos and the materials were analyzed. The Health and Safety Executive found the boards contained white and the more hazardous brown asbestos. It said DB Construction failed to investigate the site prior to work starting and stored the boards and debris in open bags in the garden, breaching safety rules. HSE inspector Helena Tinton said: "Work with materials containing higher risk asbestos, including asbestos insulation board, is a licensed activity with work only carried out by trained people under tightly controlled conditions. "DB Construction should have been aware of this and yet these ceiling boards were removed in an uncontrolled manner over a period of several hours, which resulted in the spread of airborne asbestos fibers inside and outside the property, leaving workers and the householders at risk of exposure." DB Construction admitted breaching Regulation 5 of the Control of Asbestos Regulations 2006 and was fined GBP7,000, plus GBP3,617.50 in costs. ASBESTOS UPDATE: Tax Office Urged to Pay Up Before March 31 ----------------------------------------------------------- Elisabeth Sexton of The Sydney Morning Herald reports that five years of uncertainty over a AU$368 million tax dispute ended favorably in the High Court on Feb. 10 for James Hardie Industries and the asbestos compensation trust it funds. The court refused an application by the Tax Office for special leave to appeal a full Federal Court decision handed down in August. James Hardie said that it expected to be reimbursed AU$311 million, comprising half the disputed amount, which it deposited with the Tax Office in 2007, plus interest. It also anticipates receiving some of its legal costs. Its shares initially rose on the news, but later joined the fall on the broader market and closed almost 3% lower at $7.22. The Asbestos Injuries Compensation Fund, set up after a public furor over James Hardie's gross underfunding of a similar trust in 2001, stands to receive 35% of the reimbursement, or about AU$109 million. However, the injection will not come soon enough to prevent the fund calling on emergency funding made available by the NSW and federal governments last year. A NSW government spokesman said on Feb. 10 the fund had issued a notice to draw down $29.7 million from the NSW loan facility and that the money would be transferred on Feb. 17. The loan does not reduce James Hardie's liability as the fund will draw on future contributions from the company to repay the government, with interest. The timing of the fund's receipt of cash from the court ruling will depend on whether the Tax Office reimburses James Hardie before its March 31 balance date. The NSW legislation governing the fund, introduced in 2007, provides for a transfer each July of 35% of James Hardie's cash flow recorded in the year to the previous March. If the Tax Office pays James Hardie after March 31 this year, the fund will not receive its share until July next year. The Asbestos Diseases Foundation of Australia called on the Tax Office to release the money immediately to "avoid any more damaging uncertainty for victims of asbestos-related disease." A Tax Office spokesman said it was considering the implications of the High Court ruling. The last published information showed the fund had cash of $74 million in September. In the previous six months it paid $52 million in compensation, indicating that it would need to use the line of credit this year. The NSW and federal governments established the emergency facility, of up to $320 million, after the fund was affected by a sharp fall in James Hardie's cash flow caused by the downturn in the US housing market, in turn caused by the 2008 credit crisis. The tax dispute related to 1998 transactions involving three wholly owned subsidiaries of James Hardie in Australia, the US and Malta. The transactions were part of a wider restructure in which James Hardie moved its operational base from Australia to the US, its largest market. ASBESTOS UPDATE: School Cleaner Acquired Mesothelioma At Work ------------------------------------------------------------- Natalie Crockett of the South Wales Argus reports that a former school cleaner and caretaker died as a result of exposure to asbestos throughout her career, a court heard yesterday. Brenda Ann Butcher, 65, of Blackwood, was diagnosed with the cancer mesothelioma on March 7 last year after doctors discovered a tumour on her lung. She died on April 26. Gwent Coroner David Bowen recorded a verdict of death from industrial disease. The Newport hearing heard how between 1978 and 1988 Mrs. Butcher was employed by Caerphilly council initially as a lollipop lady but went on to work as a cleaner and caretaker at Pengam Primary School. In a statement written before she died which was read to the court, Mrs. Butcher described how she was responsible for cleaning the heating system, including a boiler and pipes, which were lagged with asbestos. She told how when she cleaned, dust would fill the air and she would breathe it in. The non-smoker said she was never told the dangers the potentially deadly substance posed, nor was she given any protective equipment such as a face mask when working with it. The court heard Mrs. Butcher worked in a number of places where asbestos was present throughout her career, including factories in Newport and the Gossard underwear factory in Pontllanfraith, before she gave up work to care for husband in 1988. A post mortem examination found her death was as a result of mesothelioma. However, tests carried out by Dr. Alan Gibbs concluded the level of asbestos in Mrs. Butcher's lungs was not elevated beyond background level. In his opinion, there was not enough evidence to suggest it was asbestos related. But Mr. Bowen said he was satisfied that on a balance of probabilities Mrs. Butcher's exposure to the substance in the work place was the cause. He added it was not the purpose of the inquest to find out which workplace contributed. ASBESTOS UPDATE: Thompsons Firm Wins Compensation for Hall Family ----------------------------------------------------------------- The Sunderland Echo reports that the family of a former Wearside shipyard worker killed by an asbestos-related illness has won compensation for his death. Ted Hall died aged 80, just months after he was diagnosed with mesothelioma, a cancer of the lining of the lungs. Caused by exposure to asbestos, the disease has no cure. Mr. Hall was exposed to the chemical as a 15-year-old apprentice and joiner while working at Hudson Dock and Pallion Yard on the Wear. He was never warned by his employers about the dangers of asbestos or provided with any protection. The dad-of-two moved to Basingstoke in 1954 and then to Dartmouth with his wife Patricia, in 2004. He was diagnosed with mesothelioma in December 2010 and died five months later. Mrs. Hall instructed Thompsons Solicitors to investigate a compensation claim. A "substantial" damages payout was secured for the family and an additional payment to Rowcroft Hospice towards the costs of looking after Mr. Hall. Mrs. Hall said: "Ted was exposed to asbestos when he was just a teenager and, as a result, mesothelioma took his life. It was important to the family to make sure that someone took responsibility for his painful death." ASBESTOS UPDATE: Riverwalk Project Needs $600K for Abatement ------------------------------------------------------------ Brad Flory at mlive.com reports that demolition plans for the vacant hotel in downtown Jackson are not dead, but they may hinge on efforts to find new ways to finance unexpected asbestos-removal costs. The Jackson County Brownfield Redevelopment Authority, which is helping fund cleanup of the hotel site, is assigned to look for funding sources for a projected bill of nearly $600,000 to remove asbestos found in drywall mud. "Will it be easy? No. But we may have resources and access to funds," said James E. Shotwell Jr., chairman of the Jackson County Board of Commissioners. Amy Torres, executive director of the Brownfield Authority, said that group already planned to spend $151,398 for asbestos removal at the hotel. The money will come from a $1 million stimulus grant received in 2009. An additional $48,000 remains uncommitted from the stimulus grant, and that money would likely be put toward the hotel project, Torres said. Staff of the Brownfield Authority was "directed to identify additional funding sources" to close the remaining funding gap, Torres said. It is possible that other EPA clean-up money can be redirected toward the project, she said. The former hotel, located at 130 E. Michigan Ave. and last known as the Riverwalk Plaza, is owned by Jackson County due to unpaid taxes. Efforts to sell the structure failed years ago, and county commissioners set aside $1.8 million to demolish the building this year. Clean-up costs shot up to an estimated $557,100 to $590,100 after asbestos was discovered in drywall mud, Torres said. County officials describe the estimates, prepared by a consultant, as "high-end" and "worst-case." "We're hoping the bids would come in lower," said Torres. "They may come in quite a bit lower, depending on how hungry people are for work." The Brownfield Authority is expected to report on options March 1, Shotwell said. ASBESTOS UPDATE: CPSM Wins Appeal on Clients' Lawsuit vs Kmart -------------------------------------------------------------- Clapper, Patti, Schweizer & Mason filed a wrongful death complaint on behalf of their clients, Rachel Flores and her two children, against Kmart in Superior Court. The trial court dismissed the Flores case, stating that the claim was barred because of Kmart's reorganization plan that had been approved in April of 2003 as result of bankruptcy proceedings. (In re Kmart Corp. (Bkrtcy. N.D.Ill. 2003) 293 B.R. 905, 907.) CPSM filed an appeal, to overturn the ruling. CPSM was successful and this ruling was reversed on appeal. According to testimony taken in preparation for filing a mesothelioma lawsuit, Martin Flores stated he was exposed to asbestos in 1989 and 1990 while performing construction work in a Riverside store operated by defendant, Kmart. Mr. Flores then developed mesothelioma, an incurable cancer caused by exposure to asbestos, and died on June 19, 2008. His wife, Rachel Flores, filed a wrongful death action on behalf of herself and her two children on Dec. 17, 2008. According to the National Institutes of Health, mesothelioma's long latency period between time of exposure and development of disease does not develop is anywhere from ten to fifty years after exposure to asbestos. Asbestos exposure is a common occurrence during construction projects on older buildings, as most were constructed using asbestos containing materials until the mid- 1980's when restrictions began to be enforced. As reflected in court documents, Kmart asserted that Flores could not file a wrongful death action because of defendant's approved reorganization plan of 2003 that discharged all known and unknown claims. The plaintiffs argued that barring the Flores claim violated their Fourteenth Amendment due process rights as there was no evidence that Mr. Flores or his family had any notice of the 2002 and 2003 bankruptcy proceedings and furthermore there was no way that Mr. Flores could have been aware of injuries sustained at the time of the reorganization plan approval. The California State Court of Appeals reversed the previous ruling, (Flores v. Kmart Corp. (2012) 2012 Cal. App. LEXIS 55) agreeing that it would violate due process rights, and ordered that the Flores family could indeed continue with their wrongful death action against Kmart Corporation. The case was remanded to trial court for further proceedings. About CPSM Clapper, Patti, Schweizer & Mason are leading mesothelioma attorneys having successfully won awards, settlements and bankruptcy claims on behalf of their clients for more than 30 years. If you have been diagnosed with mesothelioma and would like to know what your legal rights are, contact our office today at 1-800-442-4262 and receive a free case evaluation from one of our attorneys that specialize in handling asbestos claims. ASBESTOS UPDATE: High Court Awards Dying Beeston Man GBP73,890 -------------------------------------------------------------- The Nottingham Post reports that a 92-year-old man suffering from asbestos-related cancer has been awarded GBP73,890 damages by the High Court. Dennis Ball, from Beeston, has been battling against mesothelioma -- a cancer of the lining of the lungs notorious for its incurability and for the pain endured by its victims. At the High Court, in London, the Department of Energy and Climate Change admitted that Mr. Ball was exposed to asbestos at Sutton Colliery and Moorgreen Colliery, both in Notts, where he worked between 1967 and 1985. The Honorable Mrs. Justice Swift ruled that the disease has had a "devastating effect" on Mr. Ball's life". She said: "Mr. Ball is experiencing a real fear about the ordeal that may be in store for him, together with distress at the knowledge of his imminent death and its cause. "For a man with a fierce sense of independence and a fear of hospitals, this must have been a very difficult time for him." As a result of the disease Mr. Ball was forced to move out of his home and into a care home in 2011. In March last year, after being plagued by a hacking cough and breathing difficulties, Mr. Ball's stepson, David Taylor, found him lying on the floor of his flat. He was later diagnosed with mesothelioma. Mrs. Justice Swift awarded Mr. Ball GBP73,890 damages against the Department of Energy and Climate Change, which took over the liabilities of the National Coal Board and British Coal. The payout includes GBP50,000 for his "pain, suffering and loss of amenity" and almost GBP20,000 for his "lost years" of life. Mrs. Justice Swift said that, prior to the mesothelioma diagnosis, Mr. Ball, who was born a year after the end of the First World War, was in reasonably good physical health and was determined to stay in his own flat rather than move into a nursing home. She added: "Before his illness, he was managing in his flat with some help. "The importance that he attached to his independent way of life is clear. It is exemplified by the fact that, even now, he continues to pay rent on his flat, plainly clinging to the hope that he may one day be able to return there. "Thus, despite his age, his disease has had a devastating effect on his life. "It is clear from the medical records that he has been well aware of the diagnosis and prognosis for more than five months now. "He is a private man and has been unwilling to talk about his prognosis. "However, there is no reason to suppose that he is not experiencing a real fear about the ordeal that may be in store for him, together with distress at the knowledge of his imminent death and its cause. "Mr. Ball's age means that he does not have the distress of knowing that many years, even decades, of his life have been denied him. "Importantly, however, the onset of illness forced him to leave his home and thus to lose his independence." ASBESTOS UPDATE: Loring Park Project Receives $345.3K in Grants --------------------------------------------------------------- Minneapolis Star Tribune reports that an ambitious project to convert a historic Loring Park office building into market-rate apartments won an $80,000 environmental grant from the Hennepin County Board. The funding will be used to seal an old well inside the building to prevent groundwater contamination, said Rosemary Lavin, the county's assistant director of environmental services. The Environmental Response Fund grant was the last of 11 that the board recently approved to help housing projects evaluate pollution, remove asbestos and lead-based paint, and clean up contaminated soil. The grants, amounting to $1.4 million, are funded with a mortgage registry and deed tax. The Loring Park building, at 430 Oak Grove St., is being developed by Kraus-Anderson Realty. It was built in 1923 as an insurance company headquarters. Last month the Metropolitan Council awarded the project $265,300 to remove asbestos. The developer also has applied for state money for environmental work. ASBESTOS UPDATE: Westmount Firm Sends SOS to Ottawa Officials ------------------------------------------------------------- Michelle Lalonde of The Montreal Gazette relates that Quebec's asbestos industry has been taking a heavy pounding of late, with two damning documentaries airing on CBC and Radio-Canada, renewed calls from politicians in Quebec City and Ottawa to outlaw the cancer-causing mineral, and a review launched into some industry- funded research at McGill. On Feb. 10, the opposition Quebec Solidaire called on the provincial and federal governments to stop financing the asbestos industry and to ban export of the mineral. Parti Quebecois mining critic Martine Ouellette told Canadian Press she wants a parliamentary commission to look at the issue. The calls are partly in response to a documentary aired on Radio- Canada "that reveals the true face of a lobby that in the past has had no scruples at all about manipulating the facts to the detriment of human health to defend its financial interests," according to the Quebec Solidaire statement. McGill University announced Feb. 9 that it has launched a preliminary review into the work of professor emeritus John Corbett McDonald, after the university received a letter last week signed by dozens of academics, physicians and researchers accusing some McGill researchers of being controlled by the asbestos industry. On Feb. 10, an official complaint was lodged with McGill by many of those same academics. "We call on McGill University to carry out a thorough, independent and transparent investigation of the allegation that the Quebec asbestos industry had improper influence over the epidemiological research carried out by Prof. J. C. McDonald and his unit at McGill; that the research is flawed, lacks transparency and contains manipulated data; that requests for the study data to be released have been refused; that the research minimized the threat to health posed by chrysotile asbestos; and that Prof. McDonald and others at times denied that the asbestos industry was funding the research," reads the complaint. A letter attached to the complaint says that no one within the department of epidemiology, of which Mc-Donald is a past chair, should be conducting the preliminary review. "It is our understanding that (members of that department) were involved in the research in question or are related to Prof. McDonald by family ties," the letter says. The Radio-Canada documentary detailed how the asbestos industry in Quebec engaged McDonald to produce studies that would raise doubt about U.S. studies that showed chrysotile causes cancer. "The Quebec asbestos lobby continues today to cite McDonald's research as evidence that exposure to levels of chrysotile asbestos fibers two hundred times higher than permitted in Europe, the U.S. and most of Canada, will cause no harm to health," the letter charges. The signatories also note that McGill has been asked to investigate these complaints in the past. In October 2002, Dr. David Egilman of Brown University complained to McGill about McDonald's research. That complaint was dismissed "with two brief paragraphs in a letter of January 2004 and no full transparent investigation." Reacting to the CBC documentary, a representative of the Westmount company that is trying to reopen and expand the Jeffrey asbestos mine in Asbestos wrote to federal members of Parliament and senators in Ottawa to defend the industry. "The story relates to a time when the reality of the chrysotile industry and chrysotile products were entirely different from what they are today," wrote Balcorp Ltd. spokesperson Guy Versailles. A briefing document accompanying the letter notes that "chrysotile and amphiboles are not the same substance," that the Jeffrey Mine is "a source of chrysotile asbestos and not the hazardous amphibole asbestos," and that chrysotile can be used safely. NDP MP Pat Martin, who for years has been fighting Canada's export of asbestos, said this shows the industry is still trying to sow confusion as to whether chrysotile asbestos, a cancer-causing substance banned in more than 50 countries, is really all that harmful. "The opposition to asbestos in Canada has really reached a critical mass now," Martin said. "It has taken a frustratingly long time, but just as the tobacco industry survived 50 years longer than it should have through denial and junk science and aggressive political lobbying, so has the asbestos industry lasted this long." Meanwhile, the Quebec government is still waiting for promoters of the Jeffrey Mine expansion project to prove they have $25 million in private investments all firmed up -- a condition demanded by the government if it is to provide a promised $58-million loan guarantee. ASBESTOS UPDATE: "Properly Worded Language" on Gillon v. CSX Case ----------------------------------------------------------------- On Oct. 11, 2011, the Supreme Court of Appeals of West Virginia affirmed a lower court's ruling in favor of railway giant CSX Transportation. The ruling held that an employee's signed release settling an asbestosis claim against the company in 1995 barred that employee's future claim against the railway for an asbestos- related cancer not diagnosed until almost eight years later. The case -- Gillon v. CSX Transportation, Inc. -- sets a new precedent for West Virginia courts handling personal injury claims related to asbestos exposure. History of the Case On May 18, 1995, an employee -- Jimmie Gillon -- signed a release agreement with CSX settling his asbestosis claim for $12,000. According to its language, the release discharged CSX "from all claims for all known and unknown, manifested and unmanifested, suspected and unanticipated occupational diseases or injuries, including cancer, arising from or contributed to by exposure to any and all toxic and pathogenic particulate matter, including but not limited to, asbestos . . ." The release also stated that a "portion of the monies paid for this release agreement is for . . . possible future manifestation of either the effects of and/or injury or disease due to alleged exposure to such substances . . ." It was also expressly stated in the release that Mr. Gillon "executed this agreement upon the advice and approval of [his] attorney and that [he] had this release agreement explained to [him] by [his] attorney . . ." Almost eight years after signing the release -- in March of 2003 -- Mr. Gillon was diagnosed with asbestos-related lung cancer. Shortly thereafter, he filed another lawsuit against CSX, this time to recover compensation for his lung cancer. The suit was premised upon Mr. Gillon's contention that his cancer claim was not barred by his earlier settlement of the asbestosis claim. The trial court disagreed, however, and granted the railroad's motion for summary judgment (a method of quickly closing a case when the judge determines that no actual dispute exists). The Appellate Process On appeal, Mr. Gillon argued that the release of his asbestosis lawsuit, which purported to release all claims for illnesses which might develop in the future, violated federal law, specifically Title 45, Section 55 of the United States Code. That law is designed to prevent freight companies classified as "common carriers" under the law from using contracts or other legal devices to unfairly free themselves from the liability imposed by the Federal Employers Liability Act (FELA). FELA was passed in 1908 to provide compensation to injured railroad workers. He asserted that a previous federal case -- Wicker v. Consolidated Rail Corporation -- limited the reach of releases signed by railroad workers to those risks known to the parties when the release is signed, and that claims relating to unknown risks cannot fairly be waived and still comply with federal law. Furthermore, Gillon argued that the release he signed in 1995 did not set out the "quantity, location, and duration" of his exposure to asbestos, as required under the Wicker case. Mr. Gillon also noted that the 1995 release contained the term "cancer," but did not specifically mention "lung cancer;" that the settlement amount of $12,000 was not nearly large enough to signify compensation for the future diagnosis of a potentially deadly cancer; and that the filing of his lawsuit reflected his sincere belief that he had not released any claim for lung cancer when he signed the 1995 agreement. For its part, CSX claimed that the term "cancer" in its release included "lung cancer" and all other cancers; that the precedent set by the Wicker case does not require specificity as to the "quantity, location and duration" of exposure contrary to Mr. Gillon's contention; that extrinsic evidence (i.e. the fact that he filed a lawsuit seeking compensation for his lung cancer) concerning Mr. Gillon's intent and knowledge cannot be used to alter the unambiguous terms of the release; that Mr. Gillon had the burden of showing that the release was invalid but failed to do so; that the court could not "second guess" the amount of the settlement in light of Mr. Gillon's present circumstances and that Mr. Gillon's regret for signing the release is not a valid basis for voiding it. The Supreme Court's Decision In a short, unsigned memorandum decision, the Supreme Court of Appeals of West Virginia upheld the lower court's summary judgment order in favor of CSX. The Supreme Court's conclusion was based on its finding that it is "clear from the unambiguous terms of the release, which [Mr. Gillon] signed with the advice of legal counsel in an earlier FELA claim, that [Mr. Gillon] was aware that he was releasing . . . any future claim that he might have associated with the development of cancer and, that under the Wicker standard, CSX is entitled to judgment in its favor on the basis of the prior release." Their ruling built on an earlier opinion in another case -- Ratliff v. Norfolk Southern Railway Co. -- in which the court held that release language in a voluntary separation ("buy out") agreement did not bar a claim for mesothelioma, an asbestos-related cancer, that was not diagnosed until 19 years after the separation. The Ratliff decision, however, indicated that in cases involving the settlement of a personal injury claim, properly worded language could release known risks of future injury. ASBESTOS UPDATE: Turin Court Issues Ruling in Eternit Case ---------------------------------------------------------- Paola Italiano of Reuters reports that a billionaire Swiss industrialist and a Belgian executive were sentenced to 16 years in jail on Feb. 13 by an Italian court and ordered to pay millions of euros in damages for negligence that led to more than 2,000 asbestos-related deaths. The verdict in Turin could set a precedent for proceedings worldwide about safety in the workplace. Relatives of the victims and hundreds of others filled the courthouse, some crying, others applauding when the sentence was read out. Stephan Schmidheiny, 64, former owner of the Swiss fiber cement firm Eternit, and Belgian shareholder and former executive Jean Louis Marie Ghislain de Cartier de Marchienne, 90, were found guilty of intentionally omitting to install measures to prevent health damage from asbestos at Eternit's Italian plants, which closed in 1986. The defendants, who were tried in absentia, have denied wrongdoing and plan to appeal, their lawyers said. "I thought I would be able to cry . . . but . . . I didn't. It's just too hard to let yourself go," Romana Blasotti, who lost five family members, was quoted as saying by the Ansa newswire. More than 6,000 people -- including former employees and residents of the four towns where the plants were located -- were seeking damages in the case. They were each awarded an average EUR30,000 ($40,000). The defendants were accused for their role as executives at the fiber cement maker's Italian affiliate, Eternit SpA. Prosecutors said the lack of safety measures led to the deaths of 2,000 people, mostly from cancer triggered by contact with asbestos, and thousands of other cases of chronic pulmonary disease, tumors and other illnesses over the past four decades. They affected workers and residents of Casale Monferrato and Cavagnolo, two hill towns near Turin; the village of Rubiera in northern Italy; and the seaside town of Bagnoli, outside Naples. Compensation awarded by the court included EUR25 million to Casale Monferrato, EUR20 million to the Piedmont region, and EUR100 million to the victims' group Afeva. "It's a dream come true," said prosecutor Raffaele Guariniello, who had sought a 20-year term for both defendants. He called the case "the biggest trial in the world and in history as far as safety at work is concerned". It took three courtrooms to accommodate the large crowd, Italian news reports said. The presiding judge needed three hours to read out the verdict, capping a trial that had opened in 2009. Health Minister Renato Balduzzi called the sentence "historic", noting that asbestos was not only a local and national issue, but also an international one. Asbestos fibers became popular from the late 19th century onwards as a way to reinforce cement, often for roofing and cladding, as well as adding sound absorption and heat resistance. Asbestos is now banned from building materials in much of the West, but is still being used as insulation in developing countries. The inhalation of asbestos fibers can cause lung inflammation and cancer, and symptoms do not tend to appear for many years. Eternit closed its Italian operations in 1986, six years before asbestos was banned in Italy. In a statement, Schmidheiny, once Switzerland's most influential industrialist, but now largely retired and focused on international philanthropy, called the ruling "incomprehensible" and said he would appeal. "We were not expecting this sentence," said Cesare Zaccone, de Cartier de Marchienne's lawyer. His client said in a statement he would also appeal, because he had "never been in charge of safety measures at Eternit SpA". A statement on his behalf in 2009 said that risks related to asbestos were not well known at the time the plants were in operation. Schmidheiny took over the Swiss Eternit Group from his father in 1976, while de Cartier de Marchienne was a shareholder and manager of Eternit in Italy in the early 1970s. ASBESTOS UPDATE: Safety Maintained at Kingston Foreshore Clean-up ----------------------------------------------------------------- Anna Morozow of ABC News reports that WorkSafe ACT says it is satisfied with how an asbestos discovery has been handled at the Kingston Foreshore in Canberra's inner-south. Late last month a gardening contractor found bonded asbestos on the man-made Foreshore Island. Work on the site was immediately stopped and WorkSafe and the Environment Protection Authority were called in. The Land Development Agency (LDA) wrote to nearby residents last week to notify them of the discovery. The LDA says the matter is unrelated to an incident in December where fill containing asbestos was trucked into the Foreshore site. LDA chief executive David Dawes says the material poses no risk to workers or residents. "There's no danger at all with this because it's a bonded material and we'll be dealing with it appropriately and removing it appropriately," he said. "It is not as if it's fibers that are within the air . . . but we'll be putting in air monitoring as well so that we can double check to make sure that it is all being contained into that part of the site." Work Safety Commissioner Mark McCabe says the proper procedures have been followed. "The key thing to remember about asbestos is there's asbestos in many places in our community. It's how we deal with it when we find it. And in this case it's being managed appropriately and it presents no risk in its bonded form," he said. The island will remain off-limits until the asbestos is removed. ASBESTOS UPDATE: Titan Environmental Sets Up Anaheim Operations --------------------------------------------------------------- Anaheim, Calif., has gained a trusted provider in asbestos assessment, lead paint inspection and mold testing. Titan Environmental Solutions specializes in residential and industrial inspections that provide peace of mind if one should doubt the air quality of their building. They provide a certified analysis with recommendations to improve the air quality of the structure. "Millions of households, schools and businesses don't know that they have a cancer-causing mineral just sitting in their walls," said Jason Reinhardt, communications director for Titan. According to the Environmental Protection Agency, "breathing high levels of asbestos can lead to increased risk of lung cancer, mesothelioma, and asbestosis (where the lungs become scarred with fibrous tissue)." Reinhardt explains that asbestos is still common and homeowners need to be on the watch: "Unfortunately, builders didn't know about the harms of asbestos when there was so much new construction. Now that we are aware of the dangers of breathing in these fibrous materials, it is important for homeowners to have an asbestos assessment, especially if they've never had one before." Titan Environmental Solutions is known among insurance carriers, property managers, school districts and government agencies for being a trustworthy and impartial inspector of their buildings and property. Each customer is treated with the same respect: with detailed reports and environmental analysis, along with professional recommendations and solutions. Titan is a dedicated organization helping residents and business owners in Anaheim reduce the toxic levels in their homes and shops. Titan recommends that every property have a mold and air quality test performed. This is especially true for buyers who have mold allergies or asthma. Titan's mission is to prevent these types of breathing problems by servicing homeowners with affordable indoor air testing. In addition to asbestos assessment and mold testing, Titan Environmental Solutions performs lead paint inspections. According to the Center for Disease Control, lead poisoning is the number one preventable childhood disease in the United States. As lead paint deteriorates it mixes in the air and is breathed in by children and adults in the house. Titan Environmental Solutions recommends homeowners, who live in a structure built before 1978, have it inspected for lead paint and residue. Of course Titan also recommends that every homeowner take a full inspection for asbestos, lead paint and mold if they are uncertain about the air quality of their dwelling. About Titan Environmental Solutions Titan Environmental Solutions is an expert inspection service that tests for the three most dangerous presences in the home and in commercial buildings: asbestos, lead paint and molds health hazards. Titan performs full scale air quality tests. Having an asbestos assessment is the best way to ensure that the home is safe from fibrous residue that can build up in the lungs, leading to risk of cancer and other health problems. ASBESTOS UPDATE: Contaminants in Grapevine Water Pumping Plant -------------------------------------------------------------- TurnTo23.com reports that for the second time in less than a month asbestos has been found in a water pumping plant near the Grapevine. After the first traces of asbestos was discovered at the Ira J. Chrisman Wind Gap Pumping Plant, tests were done at the nearby John R. Teerink Wheeler Ridge Pumping Plant and turned up positive for asbestos, officials said. Officials said the asbestos was discovered at the Chrisman plant as a worker did routine maintenance at the plant, but officials said there was never any danger either to the public or water safety. After that, state officials decided to test the nearby Wheeler Ridge Pumping Plant. Workers within the state water project said the building was sealed off and all employees were evacuated. They said clean up of the asbestos has already begun. Officials said as a precaution, tests are now being run at the Buena Vista Pumping Plant near Taft. ASBESTOS UPDATE: 3M Company, 72 Others Face Mesothelioma Lawsuit ---------------------------------------------------------------- Kyla Asbury of The West Virginia Record reports that a Stanley, N.C., couple is suing 73 companies they claim are responsible for a mesothelioma diagnosis. On Aug. 13, 2010, Sidney William Mauney was diagnosed with mesothelioma, according to a complaint filed Jan. 23 in Kanawha Circuit Court. Mauney claims he was exposed to asbestos and/or asbestos- containing products during his employment as an insulator from 1956 until 1993. The defendants knew or should have known that exposure to asbestos could cause harm to Mauney, according to the suit. Mauney claims he smoked cigarettes from 1955 until 1975, but then quit. The defendants are being sued based on theories of negligence, contaminated buildings, breach of expressed/implied warranty, strict liability, intentional tort, conspiracy, misrepresentation and post-sale duty to warn, according to the suit. Mauney and his wife, Carolyn A. Mauney, are seeking a jury trial to resolve all issues involved. They are being represented by Victoria L. Antion -- vantion@motleyrice.com -- Anne McGinness Kearse -- akearse@motleyrice.com --, Scott A. McGee -- smcgee@motleyrice.com -- John D. Hurst -- jhurst@motleyrice.com -- and Bill Graham. The case has been assigned to a visiting judge. The 73 defendants named in the suit are 3M Company; A.O. Smith Corporation; A.W. Chesterton Company; Air & Liquid Systems Corporation; American Electric Power; American Electric Power Service Corporation; Appalachian Power Company; Bechtel Corporation; Brand Insulations, Inc.; Burlington Industries, Inc.; BW IP, Inc.; Carolina Power & Light Company; Carrier Corporation; Catalytic Construction Company; Certainteed Corporation; Cleaver- Brooks, Inc.; Crane Co.; Crown, Cork & Seal USA, Inc.; Dravo Corporation; Eaton Electrical, Inc.; F.B. Wright; Fluor Corporation; Flowserve US Inc., individually and as successor to Edward Valves Inc. and Nordstrom Valves, Inc.; Flowservc US, Inc. f/k/a Durco International, Inc.; Flowservc US, Inc. f/k/a Flowserve FSD Corporation; Fluor Enterprises, Inc.; FMC Corporation; Gordon Gasket & Packing Co.; Goulds Pumps, Inc.; Greene Tweed & Company; Grinnell, LLC; Hercules, Inc.; Honeywell, Inc.; I.U. North America, Inc.; IMO Industries, Inc.; Industrial Holdings Corporation; ITT Corporation; John Crane, Inc.; Lockheed Martin Corporation; McJunkin Corporation; Metropolitan Life Insurance Company; Nagle Pumps, Inc.; National Service Industries Venture, Inc.; Nitro Industrial Coverings, Inc.; O.C. Keckley Company; Oakfabco, Inc.; Ohio Valley Insulating Company, Inc.; Owens-Illinois, Inc.; PPG Industries, Inc.; Rapid American Corporation; Riley Power Inc.; Rust Constructors, Inc.; Rust Engineering & Construction, Inc.; Rust International, Inc.; Schneider Electric; Spirax Sarco, Inc.; Sterling Fluid Systems (USA), LLC; Superior Boiler Works, Inc.; Tasco Insulations, Inc.; The Gage Company; The William Powell Company; UB West Virginia, Inc.; Uniroyal, Inc.; United Conveyer Corporation; United Engineers & Constructors and Washington Group International; Viacom, Inc.; Viking Pump, Inc.; Vimasco Corporation; Warren Pumps, Inc.; Weil-McLain Company; Yarway Corporation; Zenith Pumps; and Zurn Industries, Inc. Kanawha Circuit Court case number: 12-C-155 ASBESTOS UPDATE: Real Estate Bigwigs Breach Environmental Laws -------------------------------------------------------------- The Mesothelioma News Center reports that the neighbors of a midtown Kansas City, Missouri development saw themselves move one step closer to justice when the developer of the Citadel Plaza admitted that he had committed countless asbestos-related violations while working on the retail project between 2001 and 2006. According to a report in the Kansas City Star, developer William M. Threatt, Jr., consistently failed to properly remove and dispose of large amounts of asbestos while overseeing the development of the project. Specifically, the former president of the Community Development Corporation of Kansas City, along with the corporation's former real estate director, Anthony Compton, were charged with failing to inspect buildings that were to be demolished, failure to identify asbestos within those structures, and failure to remove those materials. The Development Corporation had purchased the property from Research Hospital with the intent of building a 35-acre mixed use "plaza" that would include not only stores and restaurants but also homes. Locals were thrilled at the prospect of the $80 million retail center in their neighborhood but, instead, the property sat for years and the site became contaminated with asbestos-containing building materials as well as other toxins. Prosecutors have alleged that any work that was performed at the site was in violation of state and federal environmental laws. As a matter of fact, Threatt and Compton all but ignored the rules, resulting in an eye-sore strewn with hazardous debris, creating a threat to neighbors who fear asbestos exposure and the potential of developing asbestos diseases like asbestosis and mesothelioma cancer. The city recently purchased the property for $15 million and after clean-up they hope to take another stab at redeveloping the site. In the meantime, Threatt and Compton await sentencing, which could include up to 5 years in prison and a $250,000 fine. ASBESTOS UPDATE: Conn. Court Affirms Liability Ruling v. Barney --------------------------------------------------------------- Connecticut Insurance Guaranty Association appeals from the decision of the workers' compensation review board affirming the determination by the workers' compensation commissioner for the first district that W.J. Barney Corporation was the party responsible for the death of one of its former employees, Richard Brooks. The insurance company asserts that the board acted improperly in affirming the commissioner's finding because the commissioner's conclusion that the decedent was exposed to asbestos while employed by Barney, and that that exposure was the last injurious exposure, resulted from inferences unreasonably drawn from the subordinate facts. A three-member panel composed of Judge F. Herbert Gruendel, Judge Douglas S. Lavine and Judge Carmen E. Espinosa of the Appellate Court of Connecticut disagreed with the insurance company. In a Feb. 7, 2012 opinion, the Appellate Court affirmed the decision of the workers' compensation review board. The Appellate Court held that its review of the commission's decision persuaded them that its factual findings were not clearly erroneous and that the evidence presented supported the commissioner's decision. The case is Brooks v. Electric Boat Corporation, AC 32632 (Conn. App. Ct). A copy of the Feb. 7 Decision is available at http://is.gd/nU529Dfrom Leagle.com. ASBESTOS UPDATE: Oregon Court Reverses Ruling vs. Lexington ----------------------------------------------------------- Lexington Insurance Company appeals an order denying its motion to set aside a default judgment for $800,000, plus costs and fees, that the trial court entered in favor of Portland General Electric Company. The insurance case relates to personal-injury litigation initiated by a person who alleged that he suffered from mesothelioma caused by exposure to asbestos at one of Portland General's power plants, where he worked in the 1970s. In a Feb. 8, 2012 order, a three-member panel composed of Judge Darleen Ortega, Judge Timothy Sercombe, and Judge Erika L. Hadlock of the Court of Appeals of Oregon reversed the trial court's ruling. The Appellate Court agreed with the insurance company that the trial court lacked jurisdiction to enter the default judgment awarding Portland General more than $800,000 in damages. The Appellate Court also agreed that the default judgment is void in its entirety because the complaint did not seek any specific amount in monetary damages. The Appellate Court explained that it is a fundamental rule that a trial court may enter a judgment awarding more damages than the plaintiff sought in the complaint only if the party against whom the judgment will be entered had reasonable notice and an opportunity to be heard. The case is Portland General Electric Company v. Ebasco Services, Inc., No. A143752 (Ore. App. Ct.). A copy of the Feb. 18 Decision is available at http://is.gd/Mh2eFxfrom Leagle.com. ASBESTOS UPDATE: Delaware Court Junks Suit v. Arkema ---------------------------------------------------- Phyllis Melton alleges that she was exposed to asbestos when she used Jelenko's asbestos tape to line metal investment rings used in the fabrication of prosthetic teeth. She initially testified she used Jelenko tape in dental hygienist school at Aquinas Junior College and Vanderbilt University from 1971-1973 and while working as a dental assistant in Atlanta from 1973-1984. In a second deposition she recanted her earlier testimony about using Jelenko asbestos tape. Jelenko, through its successor-in-interest Arkema Inc., argues that there is no evidence that Ms. Melton was exposed to its product and therefore summary judgment should be granted. In a Feb. 2, 2012 memorandum opinion, Judge John A. Parkins, Jr., of the Superior Court of Delaware, New Castle County, granted Arkema's motion for summary judgment holding that Ms. Melton has shown that she could have come across Jelenko's tape occasionally, maybe one roll, while working as dental assistant but she could not state that she had in fact ever used it. At best, Ms. Melton's exposure to Jelenko's tape is de minimis. The case is In re Asbestos Litigation: Phyllis Melton, C.A. No. N10C-06-123 ASB (Del. Super. Ct.). A copy of Judge Parkins' Decision is available at http://is.gd/1gbeUtfrom Leagle.com. ASBESTOS UPDATE: Calif. Court Affirms $10-Mil. Ruling v. Lone Star ------------------------------------------------------------------ In an asbestos-related personal injury action, Lone Star Industries, Inc., appeals from judgment entered in favor of Charles H. Cundiff and his wife Glenda after a jury returned a verdict in their favor on claims for strict liability based on design defect and failure to warn. Lone Star contends the trial court erred by denying its motions for judgment notwithstanding the verdict, a directed verdict, and a new trial, all premised on the federal enclave doctrine. Lone Star also challenges certain of the trial court's evidentiary rulings, the jury's allocation to it of 19% of the fault, and the jury's award of $10 million in noneconomic damages. In a memorandum dated Feb. 9, 2012 Justice Victoria M. Chavez of the Court of Appeals of California, Second District, Division Two, affirmed the judgment after ruling that Lone Star failed to establish that the Cundiff's claims arose inside a federal enclave, and the record discloses no abuse of discretion by the trial court in its evidentiary rulings. Substantial evidence supports the jury's fault allocation and its award of noneconomic damages, which were not excessive as a matter of law, the Appellate Court held. The case is Cundiff v. Lone Star Industries, Inc., No. B218420 (Calif. App. Ct.). A copy of Justice Chavez's Decision is available at http://is.gd/g9YTH5from Leagle.com. ASBESTOS UPDATE: NY Ct. Junks Motion to Supplement Record as Moot ----------------------------------------------------------------- A five-member panel of the Appellate Division of the Supreme Court of New York, First Department, signed a Feb. 9, 2012 order denying a motion to supplement record or take judicial notice of certain documents holding that the discontinuances in two of the actions in In the Matter of New York County Asbestos Litigation, 2012 NY Slip Op 00915, and substitution of counsel in the another deprive A.O. Smith Water Products, et al., of any further controversy to have determined; there does not appear to be any exception to the mootness doctrine. The Appellate Court added that if it were to address the merits, it would find that the motion court properly granted the motion in light of A.O. Smith's intimate familiarity with the other defendants' settlement strategies. The case is In re New York County Asbestos Litigation: Clark v. A.O. Smith Water Products, et al., Case No. 190165/10, 6780N, 5809 (N.Y. Sup. Ct.). A copy of the Feb. 9 Decision is available at http://is.gd/ax871Gfrom Leagle.com. ASBESTOS UPDATE: Ohio Court Dismisses Inmate's Exposure Claims -------------------------------------------------------------- Ronald D. Leonard, an inmate in the Ohio penal system, alleged that the operators of the Chillicothe Correctional Institution were deliberately indifferent to serious health risks to inmates from asbestos to black mold exposure. In a Feb. 9, 2012 report and recommendation, Judge Mark A. Abel of the U.S. District Court for the Southern District of Ohio, Eastern Division, recommends that the defendants' motion for summary judgment be granted on grounds that Mr. Leonard failed to exhaust his administrative remedies with respect to all defendants other than Robin Knab, that no genuine issue of material fact exists as to whether Mr. Knab violated Mr. Leonard's Eighth Amendment rights by acting with reckless disregard of a known risk of serious harm to him, and that no genuine issue of material fact exists as to whether Mr. Knab violated his First Amendment rights by retaliating against him for exercising his right to access to the court system. The case is Leonard v. Mohr, Civil Action 2:11-cv-152 (S.D. Ohio). A copy of Judge Abel's Decision is available at http://is.gd/mKVKX5from Leagle.com. ASBESTOS UPDATE: NY Court Drops Punitive Damages Award v. Fisher ---------------------------------------------------------------- Fisher Controls International, LLC, appeals from a judgment awarding Stephen Drabczyk compensatory and punitive damages in a wrongful death action based on the exposure of the plaintiff's decedent to asbestos contained in valves produced by Fisher. A five-member panel of the Appellate Division of the Supreme Court of New York, Fourth Department, in a Feb. 10, 2012 ruling, modified the judgment by vacating the award of punitive damages and affirmed the judgment as modified. The Appellate Court concluded that the evidence does not establish that this case is a singularly rare case where punitive damages are warranted, as asserted by the plaintiff. The Appellate Court added that the plaintiff failed to establish that Fisher engaged in outrageous or oppressive intentional misconduct or acted with reckless or wanton disregard of the safety or rights of the decedent. The case is In re Eighth Judicial District Asbestos Litigation: Drabczyk v. Fisher Controls International, LLC, 1321 CA 10-02145(N.Y. Sup. Ct.). A copy of the Feb. 10 Decision is available at http://is.gd/PowQ77from Leagle.com. ASBESTOS UPDATE: Meritor's Maremont Has $75MM Reserves at Dec. 31 ----------------------------------------------------------------- Maremont Corporation, a subsidiary of Meritor, Inc., has asbestos- related reserves of $75 million at December 31, 2011, according to the Company's February 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended January 1, 2012. Maremont manufactured friction products containing asbestos from 1953 through 1977, when it sold its friction product business. Arvin Industries, Inc., a predecessor of the company, acquired Maremont in 1986. Maremont and many other companies are defendants in suits brought by individuals claiming personal injuries as a result of exposure to asbestos-containing products. Maremont had approximately 21,000 pending asbestos-related claims at December 31 and September 30, 2011. Although Maremont has been named in these cases, in the cases where actual injury has been alleged, very few claimants have established that a Maremont product caused their injuries. Plaintiffs' lawyers often sue dozens or even hundreds of defendants in individual lawsuits on behalf of hundreds or thousands of claimants, seeking damages against all named defendants irrespective of the disease or injury and irrespective of any causal connection with a particular product. For these reasons, Maremont does not consider the number of claims filed or the damages alleged to be a meaningful factor in determining its asbestos-related liability. Maremont's asbestos-related reserves and corresponding asbestos- related recoveries are (in millions): Dec. 31, 2011 Sept. 30, 2011 ------------- -------------- Pending and future claims $75 $77 Asbestos-related insurance recoveries 67 67 Prior to February 2001, Maremont participated in the Center for Claims Resolution and shared with other CCR members in the payment of defense and indemnity costs for asbestos-related claims. The CCR handled the resolution and processing of asbestos claims on behalf of its members until February 2001, when it was reorganized and discontinued negotiating shared settlements. Since the CCR was reorganized in 2001, Maremont has handled asbestos-related claims through its own defense counsel and has taken a more aggressive defensive approach that involves examining the merits of each asbestos-related claim. Although the company expects legal defense costs to continue at higher levels than when it participated in the CCR, the company believes its litigation strategy has reduced the average indemnity cost per claim. Maremont engages Bates White LLC, a consulting firm with extensive experience estimating costs associated with asbestos litigation, to assist with determining the estimated cost of resolving pending and future asbestos-related claims that have been, and could reasonably be expected to be, filed against Maremont. Bates White prepares these cost estimates on a semi-annual basis in March and September each year. Although it is not possible to estimate the full range of costs because of various uncertainties, Bates White advised Maremont that it would be possible to determine an estimate of a reasonable forecast of the cost of the probable settlement and defense costs of resolving pending and future asbestos-related claims, based on historical data and certain assumptions with respect to events that may occur in the future. Bates White provided an estimate of the reasonably possible range of Maremont's obligation for asbestos personal injury claims over the next 10 years of $73 million to $83 million. After consultation with Bates White, Maremont determined that as of September 30, 2011, the most likely and probable liability for pending and future claims over the next ten years is $73 million. The ultimate cost of resolving pending and future claims is estimated based on the history of claims and expenses for plaintiffs represented by law firms in jurisdictions with an established history with Maremont. Maremont has insurance that reimburses a substantial portion of the costs incurred defending against asbestos-related claims. The coverage also reimburses Maremont for any indemnity paid on those claims. The coverage is provided by several insurance carriers based on insurance agreements in place. Incorporating historical information with respect to buy-outs and settlements of coverage, and excluding any policies in dispute, the insurance receivable related to asbestos-related liabilities is $67 million as of December 31, 2011. The difference between the estimated liability and insurance receivable is primarily related to proceeds received from settled insurance policies. Certain insurance policies have been settled in cash prior to the ultimate settlement of the related asbestos liabilities. Amounts received from insurance settlements generally reduce recorded insurance receivables. Receivables for policies in dispute are not recorded. Meritor, Inc., formerly named ArvinMeritor, Inc., headquartered in Troy, Michigan, is a global supplier of a broad range of integrated systems, modules and components to original equipment manufacturers and the aftermarket for the commercial vehicle, transportation and industrial sectors. The company serves commercial truck, trailer, off-highway, military, bus and coach and other industrial OEMs and certain aftermarkets. ASBESTOS UPDATE: Meritor Unit Still Faces Rockwell-Related Suits ---------------------------------------------------------------- ArvinMeritor, Inc. (AM), a subsidiary of Meritor, Inc., along with many other companies, continues to defend lawsuits alleging personal injury as a result of exposure to asbestos used in certain components of Rockwell International (Rockwell) products many years ago, according to the Company's February 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended January 1, 2012. Liability for these claims was transferred at the time of the spin-off of the automotive business from Rockwell in 1997. Currently there are thousands of claimants in lawsuits that name AM, together with many other companies, as defendants. However, the company does not consider the number of claims filed or the damages alleged to be a meaningful factor in determining asbestos- related liabilities. A significant portion of the claims do not identify any of Rockwell's products or specify which of the claimants, if any, were exposed to asbestos attributable to Rockwell's products, and past experience has shown that the vast majority of the claimants will likely never identify any of Rockwell's products. For those claimants who do show that they worked with Rockwell's products, management nevertheless believes it has meritorious defenses, in substantial part due to the integrity of the products involved and the lack of any impairing medical condition on the part of many claimants. The company defends these cases vigorously. Historically, AM has been dismissed from the vast majority of similar claims filed in the past with no payment to claimants. The company engages Bates White to assist with determining whether it would be possible to estimate the cost of resolving pending and future Rockwell legacy asbestos-related claims that have been, and could reasonably be expected to be, filed against the company. Although it is not possible to estimate the full range of costs because of various uncertainties, Bates White advised the company that it would be able to determine an estimate of probable defense and indemnity costs which could be incurred to resolve pending and future Rockwell legacy asbestos-related claims. After consultation with Bates White, the company determined that as of December 31 and September 30, 2011 the probable liability for pending and future claims over the next four years is $19 million. The accrual estimates are based on historical data and certain assumptions with respect to events that may occur in the future. The uncertainties of asbestos claim litigation and resolution of the litigation with the insurance companies make it difficult to predict accurately the ultimate resolution of asbestos claims beyond four years. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Rockwell maintained insurance coverage that management believes covers indemnity and defense costs, over and above self-insurance retentions, for most of these claims. The company has initiated claims against certain of these carriers to enforce the insurance policies, which are currently being disputed. The company expects to recover some portion of defense and indemnity costs it has incurred to date, over and above self-insured retentions, and some portion of the costs for defending asbestos claims going forward. Based on consultation with advisors and underlying analysis performed by management, the company has recorded an insurance receivable related to Rockwell legacy asbestos-related liabilities of $7 million and $9 million at December 31 and September 30, 2011, respectively. If the assumptions with respect to the nature of pending claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Rockwell asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on the company's financial condition and results of operations. Meritor, Inc., formerly named ArvinMeritor, Inc., headquartered in Troy, Michigan, is a global supplier of a broad range of integrated systems, modules and components to original equipment manufacturers and the aftermarket for the commercial vehicle, transportation and industrial sectors. The company serves commercial truck, trailer, off-highway, military, bus and coach and other industrial OEMs and certain aftermarkets. ASBESTOS UPDATE: Meritor's Appeal From $4.5MM Award Still Pending ----------------------------------------------------------------- On March 4, 2010, Gordon Bankhead and his spouse filed suit in Superior Court for Alameda County, California, against more than 40 defendants that Mr. Bankhead claims manufactured or supplied asbestos-containing products he allegedly was exposed to during his career as a janitor; as an ordnance specialist in the National Guard; and as an automotive parts-man. By the time trial began on October 27, 2010, Mr. and Mrs. Bankhead had settled with all defendants except for Meritor, Inc., formerly named ArvinMeritor, Inc., and three other defendants. The claims against these four defendants were limited to Mr. Bankhead's work as an automotive parts-man. On December 23, 2010, the jury ruled against all four defendants, including the company. The company was assessed $375,000 in compensatory damages for which it has recorded a liability at December 31, 2011. Additionally, the company was assessed $4.5 million in punitive damages. The company has filed an appeal on the punitive damages award to the California Court of Appeals. Possible outcomes of the appeal include vacating the damages award in its entirety, reducing the award, affirming the award in its entirety or remanding the case back to the trial court. Accordingly, the possible estimated range of loss is $0 to $4.5 million. However, given the uncertainty associated with litigation including the appeal process, the company is unable to determine an estimate within that range which is considered more probable than others and accordingly has not recorded any liability at December 31, 2011. As a consequence of the uncertain outcome of the appeal process, the company is unable to estimate the impact, if any, the resolution of this matter may have on its liability for pending and future claims at December 31, 2011. No further updates were reported in the Company's February 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended January 1, 2012. Meritor, Inc., formerly named ArvinMeritor, Inc., headquartered in Troy, Michigan, is a global supplier of a broad range of integrated systems, modules and components to original equipment manufacturers and the aftermarket for the commercial vehicle, transportation and industrial sectors. The company serves commercial truck, trailer, off-highway, military, bus and coach and other industrial OEMs and certain aftermarkets. ASBESTOS UPDATE: GenCorp Has 146 Cases Pending at Nov. 30 --------------------------------------------------------- GenCorp Inc. has 146 asbestos cases pending as of November 30, 2011, according to the Company's February 7, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended November 30, 2011. The Company has been, and continues to be, named as a defendant in lawsuits alleging personal injury or death due to exposure to asbestos in building materials, products, or in manufacturing operations. The majority of cases are pending in Texas and Pennsylvania. There were 146 asbestos cases pending as of November 30, 2011. Given the lack of any significant consistency to claims (i.e., as to product, operational site, or other relevant assertions) filed against the Company, the Company is unable to make a reasonable estimate of the future costs of pending claims or unasserted claims. Accordingly, no estimate of future liability has been accrued for such contingencies. GenCorp is a manufacturer of aerospace and defense products and systems with a real estate segment that includes activities related to the re-zoning, entitlement, sale, and leasing of its excess real estate assets. The Company develops and manufactures propulsion systems for defense and space applications, and armaments for precision tactical and long range weapon systems applications. ASBESTOS UPDATE: Scotts Miracle-Gro Still Defends Exposure Cases ---------------------------------------------------------------- The Scotts Miracle-Gro Company has been named as a defendant in a number of cases alleging injuries that the lawsuits claim resulted from exposure to asbestos-containing products, apparently based on the Company's historic use of vermiculite in certain of its products. The complaints in these cases are not specific about the plaintiffs' contacts with the Company or its products. The Company in each case is one of numerous defendants and none of the claims seek damages from the Company alone. The Company believes that the claims against it are without merit and is vigorously defending against them. It is not currently possible to reasonably estimate a probable loss, if any, associated with these cases and, accordingly, no reserves have been recorded in the Company's condensed consolidated financial statements. The Company is reviewing agreements and policies that may provide insurance coverage or indemnity as to these claims and is pursuing coverage under some of these agreements and policies, although there can be no assurance of the results of these efforts. There can be no assurance that these cases, whether as a result of adverse outcomes or as a result of significant defense costs, will not have a material effect on the Company's financial condition, results of operations or cash flows. No further updates were reported in the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2011. Headquartered in Marysville, Ohio, The Scotts Miracle-Gro Company is engaged in the manufacturing, marketing and sale of branded products for consumer lawn and garden care. The Company's primary customers include home centers, mass merchandisers, warehouse clubs, large hardware chains, independent hardware stores, nurseries, garden centers and food and drug stores. ASBESTOS UPDATE: Cabot Corp. Still Faces Exposure Claims -------------------------------------------------------- Cabot Corporation has exposure in connection with a safety respiratory products business that a subsidiary acquired from American Optical Corporation in an April 1990 asset purchase transaction. The subsidiary manufactured respirators under the AO brand and disposed of that business in July 1995. In connection with its acquisition of the business, the subsidiary agreed, in certain circumstances, to assume a portion of AO's liabilities, including costs of legal fees together with amounts paid in settlements and judgments, allocable to AO respiratory products used prior to the 1990 purchase by the Cabot subsidiary. Cabot's respirator liabilities involve claims for personal injury, including asbestosis, silicosis and coal worker's pneumoconiosis, allegedly resulting from the use of respirators that are claimed to have been negligently designed or labeled, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2011. As of both December 31, 2011 and September 30, 2011, there were approximately 42,000 claimants in pending cases asserting claims against AO in connection with respiratory products. The Company has a reserve to cover its expected share of liability for existing and future respirator liability claims. The book value of the reserve is being accreted up to the undiscounted liability through interest expense over the expected cash flow period, which is through 2062. At December 31, 2011 and September 30, 2011, the reserve was $10 million and $11 million, respectively, on a discounted basis ($16 million on an undiscounted basis at both December 31, 2011 and September 30, 2011). Cash payments related to this liability were less than $1 million and $1 million in the first quarter of fiscal 2012 and 2011, respectively. The Company has various other lawsuits, claims and contingent liabilities arising in the ordinary course of its business. These include a number of claims asserting premises liability for asbestos exposure and claims in respect of its divested businesses. In the Company's opinion, although final disposition of some or all of these other suits and claims may impact its financial statements in a particular period, they should not, in the aggregate, have a material adverse effect on its financial position. Cabot Corporation produces carbon black, a reinforcing and pigmenting agent used in tires, inks, cables, and coatings. It has about 25% of the world market for the product. The Company is headquartered in Boston. ASBESTOS UPDATE: Rockwell Automation Continues to Defend PI Suits ----------------------------------------------------------------- Rockwell Automation, Inc., including its subsidiaries, continue to defend themselves from lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of their products many years ago, according to the Company's February 8, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2011. Currently, there are a few thousand claimants in lawsuits that name the Company as defendants, together with hundreds of other companies. In some cases, the claims involve products from divested businesses, and the Company is indemnified for most of the costs. However, the Company has agreed to defend and indemnify asbestos claims associated with products manufactured or sold by its former Dodge mechanical and Reliance Electric motors and motor repair services businesses prior to their divestiture by the Company, which occurred on January 31, 2007. The Company is also responsible for half of the costs and liabilities associated with asbestos cases against the former Rockwell International Corporation's (RIC's) divested measurement and flow control business. But in all cases, for those claimants who do show that they worked with the Company's products or products of divested businesses for which the Company is responsible, the Company nevertheless believes it has meritorious defenses, in substantial part due to the integrity of the products, the encapsulated nature of any asbestos-containing components, and the lack of any impairing medical condition on the part of many claimants. The Company defends those cases vigorously. Historically, the Company has been dismissed from the vast majority of these claims with no payment to claimants. The Company has maintained insurance coverage that it believes covers indemnity and defense costs, over and above self-insured retentions, for claims arising from its former Allen-Bradley subsidiary. Following litigation against Nationwide Indemnity Company (Nationwide) and Kemper Insurance (Kemper), the insurance carriers that provided liability insurance coverage to Allen- Bradley, the Company entered into separate agreements on April 1, 2008 with both insurance carriers to further resolve responsibility for ongoing and future coverage of Allen-Bradley asbestos claims. In exchange for a lump sum payment, Kemper bought out its remaining liability and has been released from further insurance obligations to Allen-Bradley. Nationwide entered into a cost share agreement with the Company to pay the substantial majority of future defense and indemnity costs for Allen-Bradley asbestos claims. The Company believes that this arrangement with Nationwide will continue to provide coverage for Allen-Bradley asbestos claims throughout the remaining life of the asbestos liability. The uncertainties of asbestos claim litigation make it difficult to predict accurately the ultimate outcome of asbestos claims. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Subject to these uncertainties and based on the Company's experience defending asbestos claims, it does not believe these lawsuits will have a material adverse effect on its financial condition. Headquartered in Milwaukee, Rockwell Automation, Inc., is an industrial automation company that serves automotive, food and beverage (including dairy), personal care, life sciences, oil and gas, mining, and paper and pulp markets. ASBESTOS UPDATE: Consol Energy's Unit Still Faces 7,500 Claims -------------------------------------------------------------- One of CONSOL Energy Inc.'s subsidiaries, Fairmont Supply Company (Fairmont), which distributes industrial supplies, currently is named as a defendant in approximately 7,500 asbestos claims in state courts in Pennsylvania, Ohio, West Virginia, Maryland, New Jersey, Texas and Illinois, according to the Company's February 10, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. Because a very small percentage of products manufactured by third parties and supplied by Fairmont in the past may have contained asbestos and many of the pending claims are part of mass complaints filed by hundreds of plaintiffs against a hundred or more defendants, it has been difficult for Fairmont to determine how many of the cases actually involve valid claims or plaintiffs who were actually exposed to asbestos-containing products supplied by Fairmont. In addition, while Fairmont may be entitled to indemnity or contribution in certain jurisdictions from manufacturers of identified products, the availability of such indemnity or contribution is unclear at this time and, in recent years, some of the manufacturers named as defendants in these actions have sought protection from these claims under bankruptcy laws. Fairmont has no insurance coverage with respect to these asbestos cases. For the year ended December 31, 2011, payments by Fairmont with respect to asbestos cases have not been material. Other of the Company's subsidiaries may also have asbestos claims against them. The Company's current estimates related to these asbestos claims, individually and in the aggregate, are immaterial to the financial position, results of operations and cash flows of CONSOL Energy. However, it is reasonably possible that payments in the future with respect to pending or future asbestos cases may be material to the financial position, results of operations or cash flows of CONSOL Energy. Canonsburg, Pennsylvania-based CONSOL Energy Inc. is a coal mining company with some 4.5 billion tons of proved reserves, mainly in northern and central Appalachia and the Illinois Basin, and produces about 59 million tons of coal annually. ********* 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. 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