/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/120518.mbx C L A S S A C T I O N R E P O R T E R Friday, May 18, 2012, Vol. 14, No. 98 Headlines ADVANCED ENVIRONMENTAL: Has $3-Mil. Balance From Class Settlement APPLE: 17 States Join E-Book Pricing Class Action ASI LTD: Denies Claims in Employee WARN Class Action AUSTRALIA: Class Action Over Ipswich Flood Likely BANKATLANTIC BANCORP: Still Awaits Ruling on Hubbard Appeal BANKATLANTIC BANCORP: Motion to Dismiss Overdraft Suit Pending BLUFF, TN: Faces Class Action Over Speed Camera Program BONDED APPAREL: Recalls 720 Boys' Zip-front Hooded Jackets CHASE BANK: Antitrust Law Violations Suit Still Pending CHOBANI TETLEY: Sued in California for False Advertising COGDELL SPENCER: Inks MOU to Resolve Suit Over Ventas Merger CONAM MANAGEMENT: Blumenthal, Nordrehaug Files Class Action CONVERTED ORGANICS: "H&K" Case Assigned to "Leeseberg" Plaintiffs CORRECTIONS CORPORATION: Faces Overtime Class Action in Kentucky COSMOPOLITAN RESORT: Faces Overtime Class Action in Nevada DC WATER: Faces Class Action Over Lead Contamination EMI GROUP: Fails to Properly Pay Recording Artists, Suit Says HOME DEPOT: Sued by Greeters Who Were Not Provided With Seats KIT DIGITAL: Discovery Ongoing in Suit Over Wurld Transaction MA SASS: Class Action May Be Consolidated with Other Suits MAKO SURGICAL: Alfred G. Yates Jr., PC Files Class Action MEDICAL SOCIETY OF DEL: Not Entirely Off the Hook in Bradley Case ONVIA INC: IPO Litigation in New York Concluded in Jan. ROYAL BANCSHARES: Faces Antitrust Class Suit in New Jersey SEQUANS COMMS: Defends Consolidated Securities Suit in N. Y. SPANISH BROADCASTING: $600MM Class Settlement Deemed Final SWK HOLDINGS: IPO-Related Suit Finally Concluded in Jan. TEXAS INDUSTRIES: Still Defends Chrome 6 Exposure Suits THERMODYNE HOLDINGS: Paid Out Settlement Amounts in Merger Suits TRANSCEND SERVICES: Employees File Overtime Class Action WELLS FARGO: Faces Class Action Over "Dual Tracking" Practice * PENNSYLVANIA: Sup. Ct. Unveils New Rules on "Cy pres" Funds Asbestos Litigation ASBESTOS UPDATE: Rule v. Hardie Directors Clarifies Honesty Laws ASBESTOS UPDATE: NSW Draws Ire in Rejecting ALRC Recommendations ASBESTOS UPDATE: FACT Act Slows Down and Complicates Claim Process ASBESTOS UPDATE: Hanford Site Test Results Show Low Toxic Levels ASBESTOS UPDATE: Carcinogen Find Stops Work at New Sutton Plant ASBESTOS UPDATE: NOA Usage With Immunity Package Bill Signed In ASBESTOS UPDATE: Exxon Valdez Appeals India Supreme Court Ruling ASBESTOS UPDATE: Subcommittee Reviews House Resolution 4369 ASBESTOS UPDATE: Pfizer Disputes Rule, Pursues Quigley's Exit Plan ASBESTOS UPDATE: NY Court Allows Crane Co. to File Amicus Brief ASBESTOS UPDATE: NY Court Junks Leave for Appeal in Suit v. Fisher ASBESTOS UPDATE: La. High Ct. Reverses Ruling in Video Deposition ASBESTOS UPDATE: Suit v. Landlord Junked for Lack of Jurisdiction ASBESTOS UPDATE: NY Court Disallows Blackman's Insurance Claims ASBESTOS UPDATE: Chrysotile Institute Posts Plans to Dissolve ASBESTOS UPDATE: ADAO Celebrates Chrysotile Institute Dissolution ASBESTOS UPDATE: Swain & Co. Supports Ruling Against Cape Plc ASBESTOS UPDATE: Cape Case Rule Takes Out 'Corporate Veil' Defense ASBESTOS UPDATE: ADS Raises Need of Action for Wittenoom Children ASBESTOS UPDATE: Carcinogens Pushes Demolition Costs to $1.8 MM ASBESTOS UPDATE: Elizabeth Warren's Role With Travelers v. Bailey ASBESTOS UPDATE: Carcinogens Displace Ladder 15 and Medic Unit 47 ASBESTOS UPDATE: Family Finds Carcinogens in Textured Ceiling ASBESTOS UPDATE: WorkCover Visit Cues Lake Macquarie Gym Abatement ASBESTOS UPDATE: Carcinogens Found at Port Melbourne Pre-School ASBESTOS UPDATE: Orenburg Argues Chrysotile Safer and Cheaper ASBESTOS UPDATE: Bega Valley Manager Says Risk From CWF Negligible ASBESTOS UPDATE: Libby Health Board Kicks Off Initiative ASBESTOS UPDATE: Tasmania's ARD Compensation Scheme Works ASBESTOS UPDATE: PI Suits Against RPM's Bondex Unit Remain Stayed ASBESTOS UPDATE: GenCorp. Has 146 Pending Claims at Feb. 29 ASBESTOS UPDATE: PI Suit in Ohio Remains Inactive Against Chase ASBESTOS UPDATE: Chase Corp. Still in Discovery in "Jansen" Suit ASBESTOS UPDATE: Union Pacific's Liability Was $145MM at March 31 ASBESTOS UPDATE: CSX Corp. Had $64 Million Reserves at March 30 ASBESTOS UPDATE: Travelers Net Reserves Were $2.38BB at March 31 ASBESTOS UPDATE: Travelers Continues to Defend Lawsuits & Claims ASBESTOS UPDATE: Honeywell Had $1.7BB Liability at March 31 ASBESTOS UPDATE: Reuters Reviews Sudden Rise of Mesothelioma Suits ASBESTOS UPDATE: Exposed Fibro Dumping Ground Found at Corio ASBESTOS UPDATE: Idaho Labor Dept Building Evacuated ASBESTOS UPDATE: NSW's Decision Based On Pact With James Hardie ASBESTOS UPDATE: Abbey Theatre Shows Displaced Amid Abatement Work ASBESTOS UPDATE: Carcinogens Close JFK School in Saint-Michel ASBESTOS UPDATE: City Exec Says ALA Benefits Offset Risks ASBESTOS UPDATE: CL&M Wins GBP290K Payout for Mesothelioma Widow ASBESTOS UPDATE: Jamestown Seeks Break From Abatement Regulation ********* ADVANCED ENVIRONMENTAL: Has $3-Mil. Balance From Class Settlement ----------------------------------------------------------------- Advanced Environmental Recycling Technologies, Inc., disclosed in its March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011, that it had a total remaining balance in accrued expenses and accounts payable of $3.0 million associated with the settlement of a class action lawsuit in Washington. The U.S. District Court, Western District of Washington (Seattle Division) approved a class action settlement in January 2009 related to a purported class action lawsuit seeking to recover on behalf of purchasers of ChoiceDek(R) composite decking for damages allegedly caused by mold and mildew stains on their decks. The settlement includes decking material purchased from January 1, 2004 through December 31, 2007, along with decking material purchased after December 31, 2007, that was manufactured before October 1, 2006, the date a mold inhibitor was introduced into the manufacturing process. At December 31, 2011, the Company had a total remaining balance in accrued expenses and accounts payable of $3.0 million associated with the settlement of the class action lawsuit. In 2008, the Company accrued an estimated $2.9 million for resolving claims. In the third quarter of 2009, the Company increased its estimate of costs to be incurred in resolving claims under the settlement by $5.1 million. The estimate was revised due to events that occurred and information that became available after the second quarter of 2009 concerning primarily the number of claims received. The deadline for submitting new claims has now passed. The claim resolution process has an annual net cost limitation to the Company of $2.0 million until the claim resolution process is completed. Advanced Environmental Recycling Technologies, Inc. -- http://www.aertinc.com/-- develops, manufactures, and markets composite building materials that are used for exterior applications in building and remodeling homes, and other industrial or commercial building purposes. Its products are made primarily from waste wood fiber and recycled polyethylene plastics. The company manufactures various product lines, which include commercial and residential decking planks and accessories, such as balusters and handrails under the MoistureShield and ChoiceDek brand names; exterior door components; exterior housing trims under the MoistureShield brand name; deck tiles; and recycled resin compounds. Its products are primarily used in renovation and remodeling by consumers, homebuilders, and contractors as an exterior green building alternative for decking, railing, and trim products. The company was founded in 1988 and is based in Springdale, Arkansas. APPLE: 17 States Join E-Book Pricing Class Action ------------------------------------------------- Laura Hazard Owen, writing for paidContent.org, reports that New York, the District of Columbia and fifteen other states have joined the e-book pricing class action suit against Apple, Macmillan and Penguin, bringing the total number of states involved so far to 31 (if you include DC and Puerto Rico). The amended complaint, released on May 11, reveals details that were previously redacted, including an e-mail from Steve Jobs. The states' class action suit, which was filed the same day as the Department of Justice's lawsuit, alleges that Apple and book publishers conspired to set e-book prices. Unlike the DOJ, the states seek monetary restitution for consumers. (They have already reached a settlement with Hachette, Simon & Schuster and HarperCollins.) The states' amended complaint makes public information that was redacted from the version filed in April. (It's not clear why the information was originally redacted.) Much of the now-public information is duplicated in the Department of Justice filing against Apple and publishers, but some of it is new, including an e-mail from Steve Jobs. Among the content previously redacted and now public: -- Negotiating on Apple's take: Macmillan CEO John Sargent attempted to negotiate with Apple's Eddy Cue on a way to make agency pricing less painful for publishers (publishers actually make more money under the wholesale model, where they are paid based on a book's retail list price, than from the agency model). On January 11, 2010, Mr. Sargent wrote to Apple in an e-mail, "Am thinking a possible way to ease the financial pain for the publishers and authors of moving to the agency model. Could you take a reduced cut on hardcover first releases (where we are presently making 14.00 in revenue and would make 9.00 under your assumptions)?" Apple did not agree to take less than its customary 30 percent cut. -- Publisher e-mail: A "Conspiring Publisher executive" e-mailed his or her parent company's CEO on January 21, 2010: "[Eddy Cue] . . . was eloquent on why they would be a great partner, that price could and would be experimented with as Apple want [sic] to drive high revenues; that this would be for a one year term; that one major publisher (clearly RH) was out and that ne [sic] need the five majors in but maybe four. He said that he was sure he would close on two today and two tomorrow. Amazon is in town being provocative and with, as Jeff Trachtenberg said to me this morning, 'a swagger in their step'. I'm off to the AAP so will try and discover what is going on." Mr. Trachtenberg is the book publishing reporter at The Wall Street Journal. Amazon had just announced it would raise its royalty rate to 70 percent on many self-published titles. -- Steve Jobs e-mail: In late January 2010, Steve Jobs became directly involved in the agency pricing negotiations "after Eddy Cue could not secure one of the Conspiring Publisher's commitment directly from an executive." Mr. Jobs "wrote to an executive at the parent company, in part": "As I see it, [Conspiring Publisher] has the following choices: 1. Throw in with Apple and see if we can all make a go of this to create a real mainstream ebooks market at $12.99 and $14.99. 2. Keep going with Amazon at $9.99. You will make a bit more money in the short term, but in the medium term Amazon will tell you they will be paying you 70% of $9.99. They have shareholders too. 3. Hold back your books from Amazon. Without a way for customers to buy your ebooks, they will steal them. This will be the start of piracy and once started, there will be no stopping it. Trust me, I've seen this happen with my own eyes. Maybe I'm missing something, but I don't see any other alternatives. Do you? Note that Mr. Jobs predicts that in the absence of credible competitors, Amazon would begin offering publishers less favorable terms. -- E-mails to Barnes & Noble: Once five publishers and Apple had enacted agency pricing, the complaint says the five publishers "worked together to force" Random House to adopt it as well. On March 4, 2010, in an exchange also identified in the DOJ's filing, Penguin CEO David Shanks sent Barnes & Noble's then-CEO Steve Riggio an e-mail reading in part, "Random House has chosen to stay on their current model and will allow retailers to sell at whatever price they wish . . . I would hope that [Barnes & Noble] would be equally brutal to Publishers who have thrown in with your competition with obvious disdain for your welfare . . . I hope you make Random House hurt like Amazon is doing to people who are looking out for the overall welfare of the publishing industry." The state complaint additionally says that Shanks was trying to get Barnes & Noble to "stop any promotion or advertising of Random House titles," and when Barnes & Noble continued to do so, "Shanks went back to Barnes & Noble again. Following this contact, Barnes & Noble's management decided not to feature Random House in any future advertising." I asked Barnes & Noble for a statement and a spokeswoman told me the company has no comment. (This is interesting but does not prove the states' claim that all five publishers acted against Random House, since only one publisher is mentioned.) -- "The Club": In September 2009 as the publishers considered "windowing," or staggering the print and digital releases of a book, they "referenced themselves in one e-mail as 'the Club!'" This was in reference to windowing discussions and not to agency pricing discussions with Apple. ASI LTD: Denies Claims in Employee WARN Class Action ---------------------------------------------------- Glass Magazine reports that attorneys for ASI Ltd., which closed its doors in December, denied claims in an employee class action suit that calls for collection of unpaid wages and benefits. In the lawsuit, former employee Andrew Shepherd charges that ASI violated the Worker Adjustment and Retraining Notification Act that requires employers to provide at least 60 days' notice of plant closings or mass layoffs. In its May 4 answer to the suit, ASI admits no written notice was issued prior to the plant closing, and admits that it did not pay employees for work after PNC Bank closed the plant on Dec. 22. However, the company denies that it violated the WARN Act. "[ASI] is excused from the requirements of the WARN Act because . . . the plant closing was caused by business circumstances that were not reasonably foreseeable as of the time notice would have been required," ASI attorneys stated in its court response filing to the suit. Additionally, "As of the time notice would have been required under the WARN Act . . . [ASI] was actively seeking capital and business which, if obtained, would have enabled the employer to avoid or postpone the shutdown, and ASI reasonably and in good faith believed that giving the notice required would have precluded the employer from obtaining the needed capital and/or business," according to ASI attorneys in the filing. AUSTRALIA: Class Action Over Ipswich Flood Likely ------------------------------------------------- Kieran Banks, writing for The Queensland Times, reports that flood litigators IMF and Maurice Blackburn Lawyers are confident a class action law suit against the State will go ahead as they await the results of their research. IMF and Maurice Blackburn Lawyers announced their intention to launch a possible class action law suit against the State prior to the release of the Bligh Government's flood report in March. Investigations into the potential for a law suit have continued since then, with the findings expected to be known in eight weeks time. The class action hinges on the findings of their research into the botched dam releases and if flooding could have been avoided in some areas had the dam releases been managed correctly. IMF executive director John Walker, the financial backers of Maurice Blackburn's class action, is positive the research will indicate Ipswich flood victims will have their day in court. Mr. Walker said the firm had retained a dam operation expert to establish if the floodwater may have been stemmed with better prepared releases. They expect the results of their investigations to be positive and crystallize their legal action. "Then we will assess what would not have been flooded if the dam was operated properly. We are feeling more confident as time goes on that a claim against the state will be made," he said. Around 600 Ipswich residents have signed on for the class action out of the 3000 from the greater Brisbane region. He expects numbers to increase as the doubt around the law suit dissipates in the coming months. Councillor Paul Tully said Goodna residents are still inquiring to him about how to register. "People are asking about what they need to do or what the timing will be," he said. Mr. Walker said further town hall meetings will be held in late June to update complainants and the community on how the research is progressing. He said at least one of those meetings should be held in Ipswich. It was originally expected the number of potential claimants joining the class action could reach 6,000. Hundreds of flood- affected Ipswich residents attended the first round of meetings held in Ipswich, Goodna and the Lockyer Valley. BANKATLANTIC BANCORP: Still Awaits Ruling on Hubbard Appeal ----------------------------------------------------------- The U.S. Court of Appeals for the Eleventh Circuit has yet to enter a ruling on the appeal filed by plaintiffs in a securities class action lawsuit against BankAtlantic Bancorp, Inc., and certain other defendants, according to the Company's March 30, 2012, Form 10-K filing for the fiscal year ended December 31, 2011. On October 29, 2007, Joseph C. Hubbard filed a class action in the U.S. District Court for the Southern District of Florida against BankAtlantic Bancorp and five of its current or former officers. The defendants in the action were BankAtlantic Bancorp, James A. White, Valerie C. Toalson, Jarett S. Levan, John E. Abdo and Alan B. Levan. The complaint, which was later amended, alleged that during the purported class period of November 9, 2005 through October 25, 2007, BankAtlantic Bancorp and the named officers knowingly and/or recklessly made misrepresentations of material fact regarding BankAtlantic and specifically BankAtlantic's loan portfolio and allowance for loan losses. The complaint asserted claims for violations of the Exchange Act and Rule 10b-5 promulgated thereunder, and sought unspecified damages. On December 12, 2007, the presiding court consolidated into Hubbard a separately filed action captioned Alarm Specialties, Inc. v. BankAtlantic Bancorp, Inc., No. 0:07-cv-61623-WPD. On February 5, 2008, the presiding court appointed State-Boston Retirement System lead plaintiff and Lubaton Sucharow LLP to serve as lead counsel pursuant to the provisions of the Private Securities Litigation Reform Act. The presiding court subsequently changed the caption to In re BankAtlantic Bancorp, Inc. Securities Litigation. On November 18, 2010, a jury returned a verdict awarding $2.41 per share to shareholders who purchased shares of BankAtlantic Bancorp's Class A Common Stock during the period of April 26, 2007 to October 26, 2007 and retained those shares until the end of the period. The jury rejected the plaintiffs' claim for the six-month period from October 19, 2006 to April 25, 2007. Prior to the beginning of the trial, the plaintiffs abandoned any claim for any prior period. On April 25, 2011, the presiding court granted the defendants' post-trial motion for judgment as a matter of law and vacated the jury verdict, resulting in a judgment in favor of all defendants on all claims. The plaintiffs have appealed the court's order setting aside the jury verdict with respect to certain of the defendants. The appeal has been fully briefed and the U.S. Court of Appeals for the Eleventh Circuit has heard oral argument on that appeal. BANKATLANTIC BANCORP: Motion to Dismiss Overdraft Suit Pending -------------------------------------------------------------- BankAtlantic Bancorp, Inc.'s subsidiary bank is still awaiting a court order on its motion to dismiss a consolidated class action lawsuit associated with overdraft fees. On November 8, 2010, two pending class action cases against BankAtlantic - Farrington v. BankAtlantic, and Rothman v. BankAtlantic - were consolidated, and a Consolidated Amended Class Action Complaint was filed. New purported named plaintiffs were added, and the case is now styled as Jordan Arizmendi, et al., individually and on behalf of all others similarly situated, v. BankAtlantic. The Complaint, which asserts claims for breach of contract and breach of the duty of good faith and fair dealing, alleges that the Bank improperly re-sequenced debit card transactions, improperly assessed overdraft fees on positive balances, and improperly imposed sustained overdraft fees on customers one day sooner than provided for under the applicable account agreement. BankAtlantic has filed a motion to dismiss which is pending with the court. No updates were reported in the Company's March 30, 2012, Form 10- K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. BLUFF, TN: Faces Class Action Over Speed Camera Program ------------------------------------------------------- The Newspaper.com reports that a group of motorists have launched a challenge to the Bluff City, Tennessee speed camera program. The class action suit was transferred to the US District Court for the Eastern District of Tennessee earlier this month. It alleges that not only is the ticketing automated but the adjudication process is as well. "Defendant Bluff City virtually lends its municipal authority to [American] Traffic Solutions, paying little or no other significant role in the operation of the speeding enforcement cameras other than reaping the benefit of the fines," attorney Robert L. King wrote in the original complaint. "Defendant's photo enforcement systems represent a mockery of justice and due process in the legal forum in which most Tennesseans come into contact with the state's court system." Ticket recipients are told to mail their payments to the "Bluff City, TN, Photo Safety Program, PO Box 742503, Cincinnati OH." This Ohio office is operated by American Traffic Solutions (ATS), an Arizona corporation whose largest single shareholder is the investment bank Goldman Sachs. The suit claims that the program's true goal must be generating revenue because the appeals process leaves no room for justice. "Citations sent out by the defendants indicated that the alleged offender who pays the ticket is admitting guilt or liability," Mr. King wrote. "This untrue statement and misrepresentation of the law in Tennessee forced alleged offenders who did accept that they were guilty into making court appearances to protest their tickets rather than admit guilt. Many of these plaintiffs were forced to miss work and travel great distances to contest tickets in Bluff City only to find no court in session." Salem, Virginia resident Jerry R. Letterman found this out the hard way after ATS mailed him a ticket stating his car was photographed in April 2010. He later received a formal notice to appear. "You have failed to respond in a timely manner to the automated camera notice of violation listed above issued to the vehicle registered in your name," the citation stated. "You must appear in court located at 4391 Bluff City Highway, Bluff City, TN 37618 on December 14, 2010 at 2:30pm." When he traveled to Bluff City to fight it, the hearing was canceled without notice because no prosecutor showed up. He received no announcement of a new court date. Mr. Letterman later received a "notice of determination" purportedly from the Bluff City Court saying he had been found guilty on December 13, 2010 -- the day before the scheduled hearing that never took place. Another motorist, North Carolina resident Chester R. Holt, was allegedly convicted and fined $130 on Sunday, October 31, 2010, at 6:57 a.m., when the court was closed. "This was not an isolated incident in that many plaintiffs are convicted in Bluff City by electronic lottery rather than an actual hearing and judicial proceeding." The lawsuit noted one human intervention in the operation of the program. In recorded conversations, the former Bluff City police chief called Chattanooga Police Captain Susan Blaine's boss in an attempt to convince him to force her to drop the lawsuit. BONDED APPAREL: Recalls 720 Boys' Zip-front Hooded Jackets ---------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Bonded Apparel Inc., of Los Angeles, California, announced a voluntary recall of about 720 SX and QH Boys' Zip-front Hooded Jackets. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The jackets have a drawstring through the hood which poses a strangulation hazard to children. In February 1996, CPSC issued guidelines [http://www.cpsc.gov/cpscpub/pubs/208.pdf]about drawstrings in children's upper outerwear. In 1997, those guidelines were incorporated into a voluntary standard. Then, in July 2011, based on the guidelines and voluntary standard, CPSC issued a federal regulation. CPSC's actions demonstrate a commitment to help prevent children from strangling or getting entangled on neck and waist drawstrings in upper outerwear, such as jackets and sweatshirts. No incidents or injuries have been reported. This recall involves boys' long-sleeved zip-front hooded jackets. The jackets were sold in three colors: army green, aqua green and black and have a fake fur lining. The jackets have one of four designs: the number "2" or the letter "B" embroidered on the left front chest; or the word "ROCK" or "AB Sportwear" embroidered across the chest. The jackets were sold in sizes 4-7 or S, M, and L. Either "SX" or "QH" appears on the label stitched at the neck. The jackets have model numbers: 1006, 1029, 1058 and 1061, however the model number only appears on the original hang tag and not on the product. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12178.html The recalled products were manufactured in China and sold exclusively at dd's Discounts stores nationwide from August 2011 through December 2011 for about $8. Consumers should immediately take the recalled jacket from their child and remove the drawstring or contact Bonded Apparel for instructions on returning the product for a full refund. For additional information, contact Bonded Apparel toll-free at (888) 974-1555 between 9:00 a.m. through 6:00 p.m. Pacific Time Monday through Friday. CHASE BANK: Antitrust Law Violations Suit Still Pending ------------------------------------------------------- A class action complaint against Chase Bank USA, N.A., alleging violation of antitrust laws remains pending, according to the Company's March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. On June 22, 2005, a group of merchants filed a putative class action complaint in the U.S. District Court for the District of Connecticut. The complaint alleges that VISA, MasterCard and certain member banks including Bank of America, Chase USA, Capital One, Citibank and others, conspired to set the price of interchange in violation of Section 1 of the Sherman Act. The complaint further alleges tying/bundling and exclusive dealing. Since the filing of the Connecticut complaint, other complaints were filed in different U.S. District Courts challenging the setting of interchange, as well the associations' respective rules. The Judicial Panel on Multidistrict Litigation consolidated the cases in the Eastern District of New York for pretrial proceedings. An amended consolidated complaint was filed on April 24, 2006. The consolidated complaint also added claims relating to off line debit transactions. Defendants filed a motion to dismiss all claims that pre-date January 1, 2004, based on the settlement and release of claims in the Wal-Mart case. On January 8, 2008, the Court granted that motion and those claims have been dismissed. With respect to MasterCard, plaintiffs filed a first supplemental complaint in May 2006 alleging that the offering violated Section 7 of the Clayton Act and Section 1 of the Sherman Act and that the offering was a fraudulent conveyance. Defendants filed a motion to dismiss both of those claims. On November 25, 2008, the District Court dismissed the supplemental complaint with leave to replead. In May 2008, the plaintiffs filed a motion seeking class certification and the defendants opposed that motion in October 2008. The court has not yet ruled on the class certification motion. In January 2009, the plaintiffs filed and served a Second Amended Consolidated Class Action Complaint against all defendants and an amended supplemental complaint challenging the MasterCard IPO making antitrust claims similar to those that were set forth in the original supplemental complaint, as well as the fraudulent conveyance claim. With respect to the Visa IPO, the plaintiffs filed a supplemental complaint challenging the Visa IPO on antitrust theories parallel to those articulated in the MasterCard IPO pleading. On March 31, 2009, defendants filed a motion to dismiss the Second Amended Consolidated Class Action Complaint. Separate motions to dismiss each of the supplemental complaints challenging the MasterCard and Visa IPOs were also filed. The motions to dismiss have not yet been decided. Plaintiffs and defendants also have fully briefed and argued their motions for summary judgment. Chase USA cannot predict with any degree of certainty the final outcome of the litigations, its effect on the credit card industry or its effect on Chase USA's credit card business. CHOBANI TETLEY: Sued in California for False Advertising -------------------------------------------------------- Courthouse News Service reports that Pratt & Associates filed three class actions in California that lob false advertising claims at Chobani, Tetley USA and Gerber. COGDELL SPENCER: Inks MOU to Resolve Suit Over Ventas Merger ------------------------------------------------------------ Cogdell Spencer Inc. entered into a memorandum of understanding to resolve lawsuits relating to its merger agreement with Ventas Inc., according to the Company's March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. On December 24, 2011, Cogdell Spencer entered into a merger agreement with its Operating Partnership; Ventas, Inc.; TH Merger Corp, Inc., Ventas' wholly owned subsidiary ("MergerSub"); and TH Merger Sub, LLC, Ventas' wholly owned subsidiary ("OP MergerSub"). Completion of the Merger is subject to certain conditions. On December 29, 2011, a complaint was filed in the Superior Court for State of North Carolina, Mecklenburg County, under the caption, Sesholtz v. Braun, et al., Case No. 11 CVS 23162, against the Company, its directors and Ventas Inc. on behalf of a putative class of similarly situated investors, alleging that the Company's board of directors breached its fiduciary duties regarding the Company Merger and that Ventas aided and abetted the alleged breach of fiduciary duties. Beginning on January 4, 2012, six other putative class action suits were filed in the Maryland Circuit Court for Baltimore City against the same defendants and alleging similar breach of fiduciary duty and aiding and abetting claims, although certain complaints also named the Company's Operating Partnership, MergerSub and OP MergerSub as defendants. On January 27, 2012, the Company also received a letter from an entity purporting to be a stockholder demanding that the board terminate the Company Merger and the sale of the Erdman business and that the board conduct an investigation into the Company Merger and the sale of the Erdman business. The letter also made a request for access to certain books and records of the company related to the Company Merger and the sale of the Erdman business. The cases pending in Maryland were consolidated by the Court on January 31, 2012 under the caption, In re Cogdell Spencer Inc. Shareholder Litigation, Case No. 24-C-12-000053. On February 3, 2012, the plaintiff in the North Carolina action filed an amended complaint, and on February 9, 2012, the plaintiffs in the Maryland action filed an amended complaint, including the class and derivative actions. All of the pending cases ask that the Company Merger be enjoined and seek other unspecified monetary relief. On February 21, 2012, defendants moved to dismiss the amended complaint. On February 29, 2012, the Company entered into a memorandum of understanding with the plaintiffs in the Maryland and North Carolina cases regarding the settlement of the pending claims. Pursuant to the terms of the proposed settlement, the Company agreed to make certain supplemental disclosures related to the proposed Company Merger. The memorandum of understanding contemplates that the parties will enter into a settlement agreement after a period of confirmatory discovery, which will be subject to customary conditions, including court approval following notice to the Company's stockholders. In the event the parties enter into a settlement agreement, a hearing will be scheduled in which the Maryland Court will consider the fairness, reasonableness, and adequacy of the settlement. If the settlement is finally approved by the Court, it will resolve and release all claims in all actions that were or could have been brought challenging any aspect of the proposed Merger, the Merger Agreement, and any disclosure made in connection therewith, among other claims, pursuant to terms that will be disclosed to stockholders prior to final approval of the settlement. In addition, in connection with the settlement, the parties contemplate that plaintiffs' counsel will file a petition in the Maryland Court for an award of attorneys' fees and expenses to be paid by or on behalf of Defendants, which Defendants may oppose. Defendants will pay or cause to be paid any attorneys' fees and expenses awarded by the Maryland Court. The Company notes that there can be no assurance that the parties will ultimately enter into a settlement agreement or that the Maryland Court will approve the settlement even if the parties were to enter into a settlement agreement. In such event, the proposed settlement as contemplated by the memorandum of understanding may be terminated. One of the conditions to the closing of the Mergers is that no decree, ruling, judgment, decision, order or injunction shall have been entered by any court of competent jurisdiction that has the effect of prohibiting or restraining the completion of the Mergers. If for any reason the cases are not settled and if any of the plaintiffs are successful in obtaining an injunction prohibiting the defendants from completing the Mergers, then such injunction may prevent the Mergers from becoming effective or from becoming effective within the expected timeframe. In addition, if any suit, action or proceeding before any court or other governmental entity shall have been instituted or shall be pending, with respect to certain matters disclosed in the merger agreement disclosure schedule, where an unfavorable outcome in such suit, action or proceeding would, in the sole and absolute discretion of Ventas, adversely affect the anticipated business or economic benefits to Ventas and its affiliates of the transactions contemplated by the merger agreement, the Mergers will not be completed. If completion of the Mergers is prevented or delayed, it could result in substantial costs to the Company. In addition, the Company could incur costs associated with the indemnification of its directors and officers. Cogdell Spencer Inc. is a real estate investment trust ("REIT") focused on planning, owning, developing, constructing, and managing healthcare facilities. It operates its business through Cogdell Spencer LP, its operating partnership subsidiary and its subsidiaries. As of December 31, 2011, the Company owned and/or managed 118 medical office buildings and healthcare related facilities, totaling approximately 6.2 million net rentable square feet. CONAM MANAGEMENT: Blumenthal, Nordrehaug Files Class Action ----------------------------------------------------------- On May 9, 2012, the employment attorneys at Blumenthal, Nordrehaug & Bhowmik filed a class action complaint against Conam Management Corporation for alleged wage and hour violations. Ungureano vs. Conam Management Corporation, Case No. 37-2012-00096977 is currently pending in San Diego County Superior Court. According to the class action complaint filed against Conam Management Corporation, the property management company paid their non-exempt employees a monthly, nondiscretionary bonus based on their performance in the communities these property managers worked. According to the lawsuit Conam, "failed and still fails to include the monthly bonus compensation as part of the employees' 'regular rate of pay' for purposes of calculating overtime pay." The complaint also alleges that the failure to include the monthly bonus compensation in the regular rate of pay for the purpose of calculating the correct overtime rate, "has resulted in a systematic underpayment of overtime compensation" to the employees. Moreover, the class action complaint filed against Conam Management Corporation alleges that as a result of Conam's failure to correctly calculate and pay these employees the correct overtime rate, "the wage statements issued to Plaintiff and other California Class Members violate California law, and in particular, Labor Code Section 226(a)." In the opinion of employment attorney Norm Blumenthal, "the failure to include non-discretionary bonus compensation into the regular rate of pay for the purpose of calculating the correct overtime rate is a clear violation of both California and federal law." For more information about the class action lawsuit against Conam Management Corporation call (866) 771-7099. Blumenthal, Nordrehaug & Bhowmik is a California employment law firm that dedicates its practice to helping employees, investors and consumers fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. CONVERTED ORGANICS: "H&K" Case Assigned to "Leeseberg" Plaintiffs ----------------------------------------------------------------- A complaint filed by Converted Organics Inc. in the Superior Court of Massachusetts for the County of Suffolk, captioned Converted Organics Inc. v. Holland & Knight LLP, was assigned to the plaintiffs in the "Leeseberg litigation" as part of the parties' settlement agreement, according to Converted Organics' March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. On December 11, 2008, the Company received notice that a complaint had been filed in a putative class action lawsuit on behalf of 59 persons or entities that purchased units pursuant to a financing terms agreement (FTA), dated April 11, 2006, captioned Gerald S. Leeseberg, et al. v. Converted Organics, Inc., filed in the U.S. District Court for the District of Delaware. The lawsuit was settled in 2011. The settlement will be funded by the insurance provider and, accordingly, no loss has been recorded related to these matters. Related to the above matter, in December 2009, the Company filed a complaint in the Superior Court of Massachusetts for the County of Suffolk, captioned Converted Organics Inc. v. Holland & Knight LLP. The Company claims that in the event it is required to pay any monies to Mr. Leeseberg and his proposed class in the matter of Gerald S. Leeseberg, et al. v. Converted Organics, Inc., that Holland & Knight should make the Company whole, because its handling of the registration of the securities at issue in the Leeseberg lawsuit caused any loss that Mr. Leeseberg and other putative class members claim to have suffered. Holland & Knight has not yet responded to the complaint. Holland and Knight has threatened to bring counterclaims against Converted Organics for legal fees allegedly owed, which the Company would contest vigorously. On May 12, 2010, the Superior Court stayed the proceedings, pending resolution of the Leeseberg litigation. This litigation was assigned to the plaintiffs in the Leeseberg litigation noted above as part of that settlement agreement. Converted Organics Inc. was incorporated in Delaware in January 2006 for the purpose of establishing a waste-to-fertilizer business. In 2011, the Company has three segments: Organic Fertilizer, Industrial Wastewater Treatment, and Vertical Farming. CORRECTIONS CORPORATION: Faces Overtime Class Action in Kentucky ---------------------------------------------------------------- Courthouse News Service reports that Corrections Corporation of America fails to pay overtime to shift supervisors and assistant shift supervisors, a class claims in Federal Court. A copy of the Complaint in Johnson, et al. v. Corrections Corporation of America, Case No. 12-cv-00246 (W.D. Ky.), is available at: http://www.courthousenews.com/2012/05/15/cca.pdf The Plaintiffs are represented by: Thomas W. Miller, Esq. Don A. Pisacano, Esq. Elizabeth C. Woodford MILLER, GRIFFIN & MARKS, P.S.C. 271 West Short Street, Suite 600 Lexington, KY 40507 Telephone: (859) 255-6676 E-mail: twm@kentuckylaw.com COSMOPOLITAN RESORT: Faces Overtime Class Action in Nevada ---------------------------------------------------------- Nick Divito at Courthouse News Service reports that The Cosmopolitan hotel and casino stiffs workers on overtime, according to a class action led by a former employee who says she was fired when she was 8 months pregnant. "The stated reason for plaintiff's termination was that she said 'bye bye' instead of 'good bye' on the telephone to a room service customer," according to the complaint filed in Clark County District Court by Melodee Megia. "This was merely a pretext as plaintiff had been subject to harassing conduct" because of her pregnancy. The harassment included a supervisor mocking her when she had to deliver a so-called "pleasure packet" of condoms to a hotel guest, according to the complaint. The director of room service allegedly quipped: "Isn't it too late for that? You should have thought about it before getting knocked up." Aside from the individual claims, Ms. Megia hopes to represent a class of 4,300 employees on overtime allegations. Ms. Megia says the Cosmopolitan forces its staff to change into their uniforms at a common locker room, but it does not pay them for the time spent changing, waiting for uniforms, and walking to and from the locker area. The Cosmopolitan also rounds up hours to the detriment of its employees, who must punch in and out four times a day, including for meal breaks, according to the complaint. Ms. Megia says forced breaks cause workers to lose up to an hour a day. The Cosmopolitan also shorts workers overtime pay by charging a mandatory room service gratuity, according to the complaint. While a portion of the tip goes to workers, Ms. Megia says the hotel does not include bonuses and commissions in the regular rate of pay when calculating overtime. Ms. Megia seeks payment of unpaid overtime wages for the class, and lost wages and punitive damages for the discrimination she allegedly suffered at the hotel. A copy of the Complaint in Megia v. The Cosmopolitan Resort and Casino, et al., Case No. A-12-661665-C (Nev. Dist. Ct., Clark Cty.), is available at: http://www.courthousenews.com/2012/05/15/cosmo.pdf The Plaintiff is represented by: Mark Thierman, Esq. Jason Kuller, Esq. Joshua Buck, Esq. THIERMAN LAW FIRM, P.C. 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 DC WATER: Faces Class Action Over Lead Contamination ---------------------------------------------------- Shani Hilton at Washington City Paper, citing The Examiner, reports that that parents who've brought a suit against D.C. Water for lead contamination have requested that the case be turned into a class-action suit for anyone under the age of 6 who drank tap water between 2000 and 2004. Back in March, an investigation found that D.C. Water had actually stopped testing for lead in parts of D.C. known to have high levels during that period of time. For what it's worth: Last summer, D.C. tap water made it into a list of the 25 best tasting area water systems in the country. EMI GROUP: Fails to Properly Pay Recording Artists, Suit Says ------------------------------------------------------------- Dale Bozzio, individually and on behalf of all others similarly situated v. EMI Group Limited; Capitol Records LLC; EMI Music North America, LLC; EMI Recorded Music; and EMI Marketing, Case No. 4:12-cv-02421 (N.D. Calif., May 11, 2012) is brought for breach of contract and certain statutory violations under California law. The lawsuit is predicated on EMI's failure to properly account for and pay its recording artists and music producers for income it has received, and continues to receive, from the licensees of its recorded music catalog for the sale of digital downloads, ringtones or "mastertones," and streaming music (collectively, "digital content"), Ms. Bozzio contends. By this lawsuit, the Plaintiff seeks to compel EMI to account to and pay its recording artists and music producers their rightful share of the licensing income paid to EMI for digital content of the recorded music licensed by EMI to these entities. Ms. Bozzio is a singer, performer and recording artist, and a resident of Massachusetts. A protege of musician Frank Zappa, she co-founded the band Missing Persons in 1980 along with Terry Bozzio and Warren Cuccurullo. Missing Persons is best known for the hit singles "Destination Unknown," "Words," and "Walking in L.A." from its 1982 debut long-playing record album Spring Session M. EMI Group is a business entity headquartered in the United Kingdom that undertakes significant business activity in California. EMI Music is a global music company that specializes in the signing, development and promotion of recording artists and their musical compositions. Capitol Records, a Delaware corporation, is a global music company that specializes in the signing, development, and promotion of recording artists and their musical compositions. Capitol Records is also doing business as EMI Recorded Music and EMI Music Marketing. Both are global music companies that specialize in the signing, development, and promotion of recording artists and their musical compositions. The Plaintiff is represented by: R. Alexander Saveri, Esq. Cadio Zirpoli, Esq. Melissa Shapiro, Esq. Carl Hammarskjold, Esq. SAVERI & SAVERI, INC. 706 Sansome Street San Francisco, CA 94111-1730 Telephone: (415) 217-6810 Facsimile: (415) 217-6813 E-mail: rick@saveri.com cadio@saveri.com melissa@saveri.com carl@saveri.com - and - Robert J. Bonsignore, Esq. BONSIGNORE AND BREWER 193 Plummer Hill Road Belmont, NH 03220 Telephone: (781) 856-7650 E-mail: rbonsignore@class-actions.us - and - Joseph W. Cotchett, Esq. Steven N. Williams, Esq. COTCHETT, PITRE & MCCARTHY 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 - and - D. Michael Noonan, Esq. SHAHEEN & GORDON, P.A. 140 Washington Street Dover, NH 03821 Telephone: (603) 749-5000 Facsimile: (603) 749-1838 E-mail: mnoonan@shaheengordon.com HOME DEPOT: Sued by Greeters Who Were Not Provided With Seats ------------------------------------------------------------- Kunaal Sharma, individually and on behalf of all others similarly situated v. Home Depot U.S.A., Inc. and Does 1 through 50, inclusive, Case No. CIV 513089 (Calif. Super. Ct., San Mateo Cty., April 11, 2012) is brought on behalf of a class consisting of all California-based associates "who worked in the Greeter position at any time from February 7, 2011 to the present and were not provided a seat." The Plaintiff alleges that Home Depot violated the California Labor Code by failing to provide suitable seats to him and other current and former employees. He seeks recovery of penalties under the California Labor Code Private Attorneys General Act. Mr. Sharma, a former employee of Home Depot, is a resident of California. Home Depot is a Delaware corporation with its principal executive offices located in Atlanta, Georgia. Home Depot is a retailer of home improvement and construction products and services. The Plaintiff does not know the identities of the Doe Defendants. The Company removed the lawsuit on May 14, 2012, from the Superior Court of the state of California, County of San Mateo, to the United States District Court for the Northern District of California. Home Depot argues that the removal is proper because the action is between citizens of different states. The District Court Clerk assigned Case No. 4:12-cv-02444 to the proceeding. The Defendants are represented by: Donna M. Mezias, Esq. Liz K. Bertko, Esq. AKIN GUMFSTRAUSS HAUER & FELD LLP 580 California Street, Suite 1500 San Francisco, CA 94104 Telephone: (415) 765-9500 Facsimile: (415) 765-9501 E-mail: dmezias@akingump.com lbertko@akingump.com KIT DIGITAL: Discovery Ongoing in Suit Over Wurld Transaction ------------------------------------------------------------- Discovery is currently ongoing in the class action complaint against KIT digital, Inc.'s subsidiary over the acquisition of several Wurld Media assets, according to the Company's March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. In November 2007, the Company's wholly owned subsidiary, ROO HD, Inc., now known as KIT HD, Inc., was named as the defendant in a purported class action lawsuit entitled Julie Vittengl et al. vs. ROO HD, Inc., in New York Supreme Court, Saratoga County, New York. The suit, brought by four former employees of Wurld Media, Inc., purportedly on behalf of themselves and "others similarly situated," claims that KIT HD's acquisition of certain assets of Wurld was a fraudulent conveyance and that KIT HD is the alter-ego of Wurld. Plaintiffs seek the appointment of a receiver to take charge of the Company's property in constructive trust for plaintiffs and payment of plaintiffs' unpaid wages and costs of suit, both in an unspecified dollar amount. KIT HD filed its answer to the complaint in January 2008. In December 2009, plaintiffs served an amended complaint, dropping the class action allegations and adding the Company as a defendant; otherwise, it is essentially the same as its predecessor. KIT HD and the Company answered the amended complaint, and the case is currently in discovery. The Company believes the suit is without merit, and the Company and KIT HD intend to defend themselves vigorously. KIT digital is a premium provider of end-to-end video management software and services. Its KIT Video Platform, a cloud-based video asset management system, enables clients in the enterprise, media and entertainment and network operator markets to produce, manage and deliver multiscreen social video experiences to audiences wherever they are. The Company services approximately 2,450 clients in more than 50 countries including some of the world's biggest brands such as Airbus, AT&T, The Associated Press, BBC, Best Buy, Bristol-Myers Squibb, BSkyB, Disney-ABC, FedEx, Google, HP, MTV, News Corp, Telecom Argentina, Telefonica, Universal Studios, Verizon, Vodafone and Volkswagen. MA SASS: Class Action May Be Consolidated with Other Suits ---------------------------------------------------------- Lillian Shupe, writing for Hunterdon County Democrat, reports that a class action lawsuit initiated by a township woman facing foreclosure could be consolidated with two other similar lawsuits. Jeanne Boyer who has been fighting to save her own home from foreclosure, filed the suit in March on behalf of herself and potentially thousands of other homeowners in similar situations. Mr. Boyer alleges that she is one of many victims of an illegal scheme that allowed tax lien investors to charge the highest amount of interest allowed by law by eliminating the competitive bidding process. The suit was filed in Hunterdon County Superior Court on March 13 and removed to federal court on March 28. Since then two other similar suits have been filed in Federal District Court. One of the suits was filed by Raymond Contarino, of Newfield. A New York company, M.A. Sass, bought the lien on his home at the March 2007 auction for $5,224. That company has not been charged by the Department of Justice but so far there have been nine other guilty pleas in connection with the scheme. The investigation is still open. According Mr. Contarino's suit, "as a direct result of defendants' unlawful combination, collusion, conspiracy and agreement," all 59 tax liens auctioned at the March 2007 tax lien sale in Newfield, were purchased "by defendants and/or unnamed co-conspirators, at the artificially elevated, maximum bid rate of 18%." Another suit was filed by MSC, LLC, of Cherry Hill. The three suits name many of the same people or companies as defendants. A motion to consolidate is now pending in federal court. All three suits ask the court to stop the people who have pleaded guilty from enforcing any tax liens they currently hold, return title to properties already foreclosed upon and turning over proceeds from sales of properties they received because of the bid-rigging scheme. Such proceeds are the "fruits of the illegal conduct" of the people now awaiting sentencing. Meanwhile, Michael Perle, one of the attorneys involved in the Boyer suit, is seeking to amend the complaint to add additional defendants. Several more people have pleaded guilty to Sherman Act violations since the suit was filed. According to a letter to the court, at least 50 other potential victims have expressed an interest in being represented in the class action. MAKO SURGICAL: Alfred G. Yates Jr., PC Files Class Action --------------------------------------------------------- The Law Office of Alfred G. Yates Jr., PC said that it has filed a class action in the United States District Court for the Southern District of Florida on behalf of purchasers of the common stock of MAKO Surgical Corporation between January 9, 2012 and May 7, 2012, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Alfred G. Yates Jr., Esquire at 1-800-391- 5164, toll free, or at yateslaw@aol.com by e-mail. Please visit http://yatesclassactionlaw.comfor more information. 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. If you wish to serve as lead plaintiff, you must move the Court no later than July 9, 2012. The complaint charges MAKO and certain of its officers and executives with violations of the Exchange Act. The complaint alleges that, throughout the Class Period, defendants issued materially false and misleading statements regarding the Company's financials and future business prospects. Specifically, defendants misrepresented and/or failed to disclose the following adverse facts: (i) that the Company was poised to suffer a wider first quarter loss as it was experiencing higher costs and slower sales of its RIO systems; (ii) that utilization rates of the Company's RIO systems were dropping; (iii) that the Company's 2012 outlook provided at the start of the Class Period lacked a reasonable basis when made; and (iv) that, based on the above, defendants lacked a reasonable basis for their positive statements about the Company or its outlook. On May 7, 2012, the Company announced its first quarter 2012 financial results. Although revenue rose from the first quarter 2011, it dropped approximately 40% from the fourth quarter 2011 and missed analysts' consensus expectations by approximately 20%. As a result, the price of MAKO common stock dropped $15.13 per share, or nearly 37%, to close at $26.27 per share on May 8, 2012, on unusual trading volume of more than 13 million shares traded. Contact: Alfred G. Yates, Jr., Esq. Law Office of Alfred G. Yates Jr., PC Telephone: (412) 391-5164 Toll Free: 1(800) 391-5164 Web site: http://yatesclassactionlaw.com E-mail: yateslaw@aol.com MEDICAL SOCIETY OF DEL: Not Entirely Off the Hook in Bradley Case ----------------------------------------------------------------- Ryan Mavity, writing for CapeGazette.com, reports that the Supreme Court case against convicted pedophile Earl Bradley has been the hare, moving along at a brisk pace, while a class-action civil suit against Mr. Bradley and Beebe Medical Center has been the tortoise, inching its way along. But now the civil suit is picking up steam after New Castle County Superior Court Judge Joseph Slights III allowed plaintiffs to refile some claims against the Medical Society of Delaware and doctors James Marvel, Carol Tavani, Lowell Scott, John Ludwicki and Nicholas Berg from the suit. Class attorney Craig Karsnitz -- ckarsnitz@ycst.com -- said it was important that Judge Slights did not completely dismiss the society and the doctors, because it allows the chance to prove they can be held responsible. The medical society and the doctors were named in the suit because the plaintiffs allege they had knowledge and information related to Mr. Bradley's sexual assaults against his patients but failed to report them. In his opinion, Judge Slights agreed with the defendants' argument that they had no "special relationship" with Mr. Bradley -- meaning they had no control or authority over his actions. The medical society is not a regulatory body, but a nonprofit association of Delaware physicians. On these grounds, the doctors and the medical society were partially dismissed from the suit. However, Judge Slights did not entirely let the doctors and the medical society off the hook. He denied their motion to dismiss some claims, citing new allegations by the plaintiffs that certain defendants had committed themselves to a duty to protect pediatric patients from harm. Ms. Tavani and Mr. Marvel, the plaintiffs allege, were told by Mr. Bradley's sister, Lynda Barnes, that Mr. Bradley was improperly touching patients. Ms. Barnes also reported to Ms. Tavani and Mr. Marvel that her brother's mental condition and professional practice were falling apart. However, the plaintiffs say, none of this information was relayed to the Board of Medical Practice, which regulates doctors, or to Delaware State Police. Mr. Ludwicki, who worked with Mr. Bradley at Beebe and shared office space with him for seven months, was interviewed, along with his staff, by Milford Police Department in a 2005 investigation of suspected misconduct by Mr. Bradley. The plaintiffs allege Mr. Ludwicki, through reports to his staff, had knowledge that Mr. Bradley was a pedophile, but did not report it to authorities. Mr. Scott, according to Judge Slights' opinion, had referred to Mr. Bradley as a pedophile while speaking to other physicians as early as 2001. Defendant Berg was an ear, nose and throat specialist at Bayside Health Association with Messrs. Bradley and Scott. "These allegations, if proven, would be sufficient to trigger a duty on the part of the physicians/defendants who undertook to protect patients to discharge that duty with reasonable care," Judge Slights said. Judge Slights decision states the plaintiffs failed to prove negligence on the part of the doctors, but he allowed for an amended complaint based on common law or medical negligence against the individual doctors. To prove negligence, a plaintiff must prove that the defendant owed a duty of care and breached that duty, causing injury to the plaintiff, but Judge Slights left the door open to allow the plaintiffs to prove defendants owed a duty of care. Plaintiff's attorney Chase Brockstedt said a second amended complaint has been filed. Collins Seitz, attorney for the medical society, was not available for comment. Mr. Bradley and Beebe, also named in the class action suit, did not move to dismiss claims against them. Kelly Griffin, spokeswoman for Beebe Medical Center, could not be reached for comment. This is the second time Judge Slights has considered whether to dismiss the medical society and the doctors from the suit. In the first case, decided in February, Judge Slights dismissed the defendants from the case but allowed the plaintiffs to amend their complaint. In September, Judge Slights heard the second round of arguments but did not issue an opinion until March 29. That opinion was under seal until May 8 when a redacted version was released to the public. Attorneys for the class and Beebe have been talking about potentially settling the case, although no settlement has been reached. Wilmington attorney Bruce Hudson, who represents more than 40 members of the class, said notice has gone out to Mr. Bradley's former patients asking to join the class and hundreds of responses have been received. Attorneys for the class have not yet asked for a trial date. When asked whether the suit could be settled out of court, Mr. Hudson said, "I don't have a crystal ball, but hope springs eternal." He said a settlement would be ideal because it would spare Mr. Bradley's victims from having to testify in court. However, Mr. Hudson added, the objective is to receive fair and just compensation for the victims. Mr. Karsnitz said attorneys are working hard with Beebe's attorneys and insurance carriers, as well as those for the medical society to create a fund to compensate the victims. While nothing has been resolved yet, he said the talks have been productive. Meanwhile, attorneys for Mr. Bradley have filed their final brief in advance of oral arguments before the Delaware Supreme Court. Mr. Bradley's appeal team, Robert Goff and Nicole Walker of the Public Defender's Office, is asking the court to overturn the guilty verdict against Mr. Bradley. They reiterate their argument that Delaware State Police conducted an illegal search of Mr. Bradley's BayBees Pediatrics office where they found computer files with video of Mr. Bradley sexually assaulting children. In their reply brief, filed April 24, Mr. Bradley's attorneys said police, who first conducted a limited searched Mr. Bradley's property Dec. 16, 2009, looking for eight patient files, did not know the names of the patients whose records they were searching for. Mr. Bradley's attorneys said police "conducted a dragnet unauthorized by the narrow language of the warrant and unjustified by the cause provided in its affidavit." In addition, they say, the Attorney General's Office has had an amorphous and evolving definition of a medical file. "A search for a medical file, as it is plainly understood to be, does not support the unbridled search at the scene engaged in by the police," the brief says. Oral arguments before the Supreme Court are scheduled to begin June 13. Earl Bradley's house at 344 Savannah Rd. in Lewes was scheduled to go up for sheriff sale, 9:30 a.m., Tuesday, May 15 at the Sussex County Sheriff's Office, 22215 DuPont Blvd. in Georgetown. The house was foreclosed on by U.S. Bank, which Mr. Bradley owes $560,000 in mortgage payments and late fees. Mr. Bradley has not lived at the house since his arrest in December 2009. Bradley's BayBees Pediatrics office was similarly foreclosed on by Fulton Bank and sold at sheriff sale last year. The property was eventually purchased by Realtor Bruce Guyer and the buildings demolished on Oct. 10. ONVIA INC: IPO Litigation in New York Concluded in Jan. ------------------------------------------------------- Securities class action complaints filed against Onvia, Inc. in New York concluded in January, according to the Company's March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. In 2001, five securities class action suits were filed against Onvia, certain former executive officers, and the lead underwriter of Onvia's Initial Public Offering (IPO), Credit Suisse First Boston (CSFB). The suits were filed in the U.S. District Court for the Southern District of New York on behalf of all persons who acquired securities of Onvia between March 1, 2000 and December 6, 2000. In 2002, a consolidated complaint was filed. The complaint charged defendants with violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (and Rule 10b-5 promulgated thereunder) and Sections 11 and 15 of the Securities Act of 1933, for issuing a Registration Statement and Prospectus that failed to disclose and contained false and misleading statements regarding certain commissions purported to have been received by the underwriters, and other purported underwriter practices in connection with their allocation of shares in the offering. The complaint sought an undisclosed amount of damages, as well as attorneys' fees. The action is being coordinated with approximately 300 other nearly identical actions filed against other companies. At the Court's request, plaintiffs selected six "focus" cases, which do not include Onvia. The Court indicated that its decisions in the six focus cases are intended to provide strong guidance for the parties in the remaining cases. The parties in the coordinated cases, including Onvia's case, reached a settlement. The insurers for the issuer defendants in the coordinated cases will make the settlement payment on behalf of the issuers, including Onvia. On October 5, 2009, the Court granted final approval of the settlement. Judgment was entered. The settlement approval was appealed to the United States Court of Appeals for the Second Circuit. One appeal was dismissed and the second appeal was remanded to the district court to determine if the appellant is a class member with standing to appeal. The District Court ruled that the appellant lacked standing. The appellant appealed the District Court's decision to the Second Circuit. Subsequently, appellant entered into a settlement agreement with counsel for the plaintiff class pursuant to which he dismissed his appeal with prejudice. As a result, the settlement among the parties in the IPO Litigation on January 9, 2012 is final and the case is concluded. Headquartered in Seattle, Washington, Onvia is a provider of business information and research solutions that help companies plan, market and sell to government agencies throughout the United States. Onvia's business solution provides clients online access to a proprietary database of government procurement opportunities across the federal, state, local, and education sectors. ROYAL BANCSHARES: Faces Antitrust Class Suit in New Jersey ---------------------------------------------------------- Royal Bancshares of Pennsylvania, Inc. and its operating unit, Royal Bank, are facing an antitrust class action complaint in New Jersey, according to the Company's March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. Royal Bank holds a 60% equity interest in each of Crusader Servicing Corporation ("CSC") and Royal Tax Lien Services, LLC ("RTL"). CSC and RTL acquire, through public auction, delinquent tax liens in various jurisdictions thereby assuming a superior lien position to most other lien holders, including mortgage lien holders. On March 4, 2009, each of CSC and RTL received grand jury subpoenas issued by the U.S. District Court for New Jersey upon application of the Antitrust Division of the U.S. Department of Justice ("DOJ"). The subpoenas sought certain documents and information relating to an ongoing investigation being conducted by the DOJ relating to alleged bid-rigging at tax lien auctions in New Jersey. Royal Bank, CSC and RTL have produced to the DOJ documents responsive to the subpoenas and have been cooperating with the DOJ throughout the investigation. On February 23, 2012, the former President of CSC and RTL entered a plea of guilty to one count of bid-rigging at certain auctions for tax liens in New Jersey from 1998 until approximately the spring of 2009. The former President's employment with CSC and RTL effectively terminated in November 2010. As previously disclosed, Royal Bank had been advised that neither CSC nor RTL were targets of the DOJ investigation, but they were subjects of the investigation. It is possible, particularly in light of the plea entered by the former President of CSC and RTL, that the outcome of the investigation could result in fines and penalties being assessed against both CSC and RTL, which could also result in reputational risk due to negative publicity. No proceedings have been instituted by the DOJ or any other governmental authority against CSC or RTL as of March 30, 2012. As a result of the plea agreements of the former President of CSC and RTL and others resulting from the DOJ investigation, on March 13, 2012, the former president of RTL and CSC, RTL, CSC, the Company and certain other parties were named as defendants in a putative class action lawsuit filed in the Superior Court of New Jersey, Chancery Division on behalf of a proposed class of taxpayers who became delinquent in paying their municipal tax obligations (Boyer v. Robert W. Stein, Crusader Servicing Corp. Royal Tax Lien Services LLC, Royal Bancshares of Pennsylvania, Inc., et al., Superior Court of New Jersey, Chancery Division, Docket No. C-14007/12). On March 28, 2012, CSC, RTL and the Company removed the case to the U.S. District Court for the District of New Jersey. The lawsuit alleges violations of the New Jersey Antitrust Act and unjust enrichment, and seeks treble damages, attorney fees and injunctive relief. As of March 30, 2012, the Company cannot reasonably estimate the possible loss or range of loss that may result from these actions or proceedings. Royal Bancshares of Pennsylvania, Inc. is a bank holding company headquartered at 732 Montgomery Avenue, in Narberth, Pennsylvania, 19072. The principal activities of the Company are supervising Royal Bank which engages in general banking business principally in Montgomery, Delaware, Chester, Bucks, Philadelphia and Berks counties in Pennsylvania, southern New Jersey, and Delaware. The Company also has a wholly owned non-bank subsidiary, Royal Investments of Delaware, Inc., which is engaged in investment activities. At December 31, 2011, the Company had consolidated total assets of approximately $848.4 million, total deposits of approximately $575.9 million and shareholders' equity of approximately $75.9 million. The Company has two reportable operating segments, "Community Banking" and "Tax Liens." SEQUANS COMMS: Defends Consolidated Securities Suit in N. Y. ------------------------------------------------------------ Sequans Communications S.A. is defending itself against a consolidated securities class action complaint in New York, according to the Company's March 30, 2012, Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. On September 9, 2011, a class action lawsuit was filed in the U.S. District Court Southern District of New York against the Company, certain of its officers and directors, and UBS Limited and Jefferies & Company Inc, the lead underwriters in the Company's initial public offering. The action, Donald Dean Johnson v. Sequans Communications S.A., et al., alleges violations of the U.S. federal securities laws in connection with the Company's initial public offering. A substantially similar complaint was filed on October 25, 2011, also in the U.S. District Court Southern District of New York. On December 13, 2011 the Court consolidated the two actions, and appointed lead plaintiffs and co-lead plaintiffs' counsel. On January 31, 2012, lead plaintiffs filed a Consolidated Amended Complaint For Violations of Federal Securities Laws, which seeks unspecified damages. The Company intends to vigorously defend against the consolidated action. Based in Paris, France, Sequans Communications S.A. -- http://www.sequans.com/-- together with its subsidiaries, designs, develops, and supplies 4G semiconductor solutions for wireless broadband applications. Its solutions incorporate baseband processor and radio frequency transceiver integrated circuits along with proprietary signal processing techniques, algorithms, and software stacks. SPANISH BROADCASTING: $600MM Class Settlement Deemed Final ---------------------------------------------------------- The $600 million class settlement resolving consolidated securities class actions against Spanish Broadcasting System, Inc. is now final with the withdrawal and dismissal of all pending appeals, the Company disclosed in its March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. On November 28, 2001, named plaintiff Mitchell Wolf brought a class action lawsuit against SBS, its underwriters, two members of SBS' senior management team, one of whom is the Chairman of SBS' Board of Directors, and another SBS director, alleging certain violations of federal securities laws, including SEC Rules 10b-5 and 11, in connection with SBS' initial public offering in 1999. The lawsuit is one of 300 similar lawsuits involving more than 300 issuers, 40 underwriters, and 1,000 individual defendants, which were assigned for consolidated pretrial purposes to one judge in the U.S. District Court for the Southern District of New York. The 10b-5 claims were subsequently dismissed as to the Individual Defendants and, in 2007, tolling agreements were entered pursuant to which the Individual Defendants, including SBS' managers and directors, were dismissed from the case without prejudice in exchange for documentation showing that the Issuers had entity coverage for the period in question. Additionally, a subset of plaintiffs' Section 11 claims (alleging civil liabilities on account of false registration statements) were dismissed by the trial court and the class allegations relating to the Section 10b- 5 claims were stricken with respect to several of the consolidated actions, including the action against SBS. On October 5, 2009, the trial court issued a final order of approval of a settlement of all of the consolidated actions, including the action against SBS. Although several members of the plaintiff class initially objected to and/or appealed the settlement, all objections were withdrawn with prejudice or dismissed as of January 10, 2012. The settlement will result in a release of all claims against the Underwriter Defendants and the Issuer Defendants, and their officers and directors, in exchange for an aggregate sum of approximately $600 million to be paid into a settlement fund for the benefit of the class plaintiffs. SBS' and the SBS individual defendants' share of the Settlement Amount will be fully funded by insurance. Spanish Broadcasting System, Inc., is the largest publicly traded Hispanic-controlled media and entertainment company in the United States. SWK HOLDINGS: IPO-Related Suit Finally Concluded in Jan. -------------------------------------------------------- A securities class action lawsuit against SWK Holdings Corporation has now been concluded with the dismissal of all pending appeals and final approval of a class settlement, according to the Company's March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. In July 2001, the Company, its underwriters, and certain officers and directors were named as defendants in a securities class action lawsuit. The case is one of several hundred similar cases that have been consolidated into a single action. The complaint alleges misstatements and omissions concerning underwriters' compensation in connection with the Company's initial public offering. In February 2003, the Court denied a motion to dismiss that would have disposed of the claims against the Company. A settlement proposal, which did not admit wrongdoing, had been approved by the Board of Directors and preliminarily approved by the Court. While the parties' request for court approval of the settlement was pending, in December 2006 the Court of Appeals reversed the District Court's finding that six focus cases could be certified as class actions. In April 2007, the Court of Appeals denied the plaintiffs' petition for rehearing, but acknowledged that the District Court might certify a more limited class. At a June 26, 2007 status conference, the Court terminated the proposed settlement as stipulated among the parties. Plaintiffs filed an amended complaint on August 14, 2007. On September 27, 2007, plaintiffs filed a motion for class certification in the six focus cases, which was withdrawn on October 10, 2008. On November 13, 2007, defendants in the six focus cases filed a motion to dismiss the complaint for failure to state a claim, which the Court denied in March 2008. Plaintiffs, the issuer defendants (including the Company), the underwriter defendants, and the insurance carriers for the defendants, engaged in mediation and settlement negotiations. They reached a settlement agreement, which was submitted to the District Court for preliminary approval on April 2, 2009. As part of the settlement, the Company's insurance carrier agreed to assume the Company's entire payment obligation under the terms of the settlement. On June 10, 2009, the District Court granted preliminary approval of the proposed settlement agreement. After a September 10, 2009 hearing, the District Court gave final approval to the settlement on October 5, 2009. Several objectors filed notices of appeal to the United States Court of Appeal for the Second Circuit from the District Court's order granting final approval of the settlement. All but two of the objectors withdrew their appeals, and Plaintiff moved to dismiss the remaining appeals, one for violation of the Second Circuit's rules and one for lack of standing. On May 17, 2011, the Second Circuit granted the motion to dismiss one objector's appeal for violations of the Court's rules and remanded the other appeal to the District Court to determine whether objector Hayes was a class member. On August 25, 2011, the District Court issued its decision determining that Hayes was not a class member. On September 30, 2011, objector Hayes filed a notice of appeal from the District Court's decision. On January 9, 2012, objector Hayes dismissed his appeal with prejudice. No other appeals are pending, the order approving the settlement is final, and the matter is now concluded. Headquartered in Provo, Utah, SWK Holdings Corporation -- http://www.swkhold.com/-- does not have significant operations. The Company intends to seek, analyze, and evaluate potential acquisition candidates. Previously, it developed, marketed and supported customer communications software products. It was formerly known as KANA Software, Inc. and changed its name to SWK Holdings Corporation in December 2009. TEXAS INDUSTRIES: Still Defends Chrome 6 Exposure Suits ------------------------------------------------------- In late April 2008, a lawsuit was filed in Riverside County Superior Court of the State of California styled Virginia Shellman, et al. v. Riverside Cement Holdings Company, et al . The lawsuit against three of Texas Industries, Inc.'s subsidiaries purports to be a class action complaint for medical monitoring for a putative class defined as individuals who were allegedly exposed to chrome 6 emissions from the Company's Crestmore cement plant. The complaint alleges an increased risk of future illness due to the exposure to chrome 6 and other toxic chemicals. The suit requests, among other things, establishment and funding of a medical testing and monitoring program for the class until their exposure to chrome 6 is no longer a threat to their health, as well as punitive and exemplary damages. Since the Shellman lawsuit was filed, five additional putative class action lawsuits have been filed in the same court. The putative class in each of these cases is the same as or a subset of the putative class in the Shellman case, and the allegations and requests for relief are similar to those in the Shellman case. As a consequence, the court has stayed four of these lawsuits until the Shellman lawsuit is finally determined. Since August 2008, additional lawsuits have been filed in the same court against Texas Industries, Inc. or one or more of the Company's subsidiaries containing allegations of personal injury and wrongful death by approximately 3,000 individual plaintiffs who were allegedly exposed to chrome 6 and other toxic or harmful substances in the air, water and soil caused by emissions from the Crestmore plant. The court has dismissed Texas Industries, Inc. from the suits, and its subsidiaries operating in Texas have been dismissed by agreement with the plaintiffs. Most of the Company's subsidiaries operating in California remain as defendants. The court has dismissed from these suits plaintiffs that failed to provide required information, leaving approximately 2,000 plaintiffs. Since January 2009, additional lawsuits have been filed against Texas Industries, Inc. or one or more of the Company's subsidiaries in the same court involving similar allegations, causes of action and requests for relief, but with respect to the Company's Oro Grande, California cement plant instead of the Crestmore plant. The suits involve approximately 300 individual plaintiffs. Texas Industries, Inc. and its subsidiaries operating in Texas have been similarly dismissed from these suits. The court has dismissed from these suits plaintiffs that failed to provide required information, leaving approximately 250 plaintiffs. Prior to the filing of the lawsuits, the air quality management district in whose jurisdiction the plant lies conducted air sampling from locations around the plant. None of the samples contained chrome 6 levels above 1.0 ng/m3. The plaintiffs allege causes of action that are similar from suit to suit. Following dismissal of certain causes of action by the court and amendments by the plaintiffs, the remaining causes of action typically include, among other things, negligence, intentional and negligent infliction of emotional distress, trespass, public and private nuisance, strict liability, willful misconduct, fraudulent concealment, unfair business practices, wrongful death and loss of consortium. The plaintiffs generally request, among other things, general and punitive damages, medical expenses, loss of earnings, property damages and medical monitoring costs. As of March 30, 2012, none of the plaintiffs in these cases has alleged in their pleadings any specific amount or range of damages. Some of the suits include additional defendants, such as the owner of another cement plant located approximately four miles from the Crestmore plant or former owners of the Crestmore and Oro Grande plants. The Company says it will vigorously defend all of these suits but cannot predict what liability, if any, could arise from them. The Company adds it also cannot predict whether any other suits may be filed against it alleging damages due to injuries to persons or property caused by claimed exposure to chrome 6. No further updates were reported in the Company's March 30, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended February 29, 2012. THERMODYNE HOLDINGS: Paid Out Settlement Amounts in Merger Suits ---------------------------------------------------------------- Thermodyne Holdings Corporation has paid all amounts associated with its settlement resolving two class action complaints commenced in relation to its merger agreement with Irving Place Capital, according to the Company's March 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2011. In October 2010, two identical purported class action lawsuits were filed in connection with the Company's merger deal with Irving Place Capital against the Company, its directors, and Irving Place Capital. On November 25, 2010, the Company, its directors and Irving Place Capital entered into a memorandum of understanding with the plaintiffs regarding the settlement of these actions. On June 30, 2011, the Circuit Court of St. Louis County, Missouri issued an order approving the settlement and resolving and releasing all claims in all actions that were or could have been brought. The Circuit Court further awarded attorneys' fees and expenses to plaintiffs' counsel in the amount of $399,000, which the Company paid in July 2011 and 85% of which was reimbursed to the Company by its insurance carrier in October 2011. Thermodyne Holdings Corporation is a global designer, manufacturer and supplier of a comprehensive suite of cutting and welding products used in various fabrication, construction and manufacturing operations around the world. TRANSCEND SERVICES: Employees File Overtime Class Action -------------------------------------------------------- Richard Craver, writing for Winston-Salem Journal, reports that the company that Novant Health Inc. outsourced its medical- transcriptionist work to, Transcend Services Inc., is facing a class-action lawsuit filed by 13 employees. None of the employees came from Novant, according to the lawsuit filed on May 11 in the U.S. Northern District of Illinois. Novant shifted the medical transcriptionist work of 69 full-time employees on April 1 to Transcend, based in Norcross, Ga. Novant said it did not know how many former employees went to work for Transcend or currently work for it. The work typically is done at home. The Transcend employees accuse the company of not paying a federal minimum wage of $7.25 an hour for hours worked and requiring them to perform overtime work without proper compensation of 1 1/2 times their hourly wage. The lawsuit says Transcend has been in violation of both pay requirements for at least three years. The plaintiffs want unpaid wage and unpaid overtime compensation, attorneys' fees and other damages. They also want "injunctive relief . . . to stop defendant's unlawful pay practices and establish that such unlawful practices within the health-care industry are no longer permissible." Novant medical transcriptionists who spoke with the Winston-Salem Journal in March expressed concern about the pay and overtime rates when they were told of the center's outsourcing plans. Donna Rhines, marketing director for Transcend, said on May 14 the company "did not have enough information to speak about" the lawsuit. Transcend is being bought by Nuance, which has offices in India. Marilyn Gilliam, Novant's vice president of talent acquisition and retention, said in March that Novant chose Transcend so its employees would "have the ability to transfer to Transcend without interruption in employment or benefits." Novant said in a statement Monday it could not comment specifically on the lawsuit, since it is not involved. "Novant is committed to working with vendors who work legally and ethically and we have no reason to believe that Transcend will not work through these issues appropriately," Novant said. "We believe outsourcing transcription services is the right thing to do for Novant. Many hospitals across the country have outsourced this service. Our responsibility to patients is to reduce expenses without compromising patient care and outsourcing this service is one way we can accomplish that goal." Novant told its medical transcriptionists on March 15 that they had three days to decide whether to go to work for Transcend. At that time, most Novant medical transcriptionists worked for base pay of $14 to $16 an hour, along with production pay that often represented half their salary. Before 2008, the transcriptionists said they were paid by production, with some making more than $40 an hour. Some Novant employees determined that taking the outsourced job offer would mean a pay cut ranging from half to nearly two-thirds. Transcend also offered no base pay. WELLS FARGO: Faces Class Action Over "Dual Tracking" Practice ------------------------------------------------------------- eCreditDaily reports that a Kansas couple has filed a class-action suit against Wells Fargo, accusing the nation's largest mortgage lender of providing only "illusory trial loan modification programs" to borrowers facing foreclosure -- without any intention of offering them permanent loan reductions. The suite brings to light "dual-tracking," a practice by lenders of offering mortgage loan modifications while initiating foreclosure proceedings against the same borrower during the same period of time. The recently approved $25 billion mortgage settlement between federal and state officials and the five top mortgage lenders, including Wells Fargo, prohibits "dual-tracking." U.S. Magistrate Joseph Spero last week ruled that the "class" in the lawsuit brought by Vicki and Richard Sutcliffe failed to state a claim for breach of contract or debt collection violations. But Judge Spero allowed a separate claim in the lawsuit to remain. Judge Spero also gave the class leave to amend the complaint to allege damages from the bank's alleged contract breach, according to Courthouse News Service. The Sutcliffes made the required reduced payments under the trial modification offered by Wells Fargo, but did not receive paperwork for a loan modification at the end of the trial period, the suit claims. The couple continued to make payments at the trial period rate through July 2010. However, Wells Fargo sent paperwork indicating the loan was in default and a letter stating it was not going to permanently modify their loan, the suit alleges. Wells Fargo later sent letters to the couple offering them a "Special Forbearance Plan," under which they would make more reduced payments. The Sutcliffes made the payments, only to be sent another letter again stating the loan was in default. Finally, on Jan. 4, 2011, the Sutcliffes received a letter from a law firm informing them that it had been retained by Wells Fargo to initiate foreclosure proceedings. * PENNSYLVANIA: Sup. Ct. Unveils New Rules on "Cy pres" Funds ------------------------------------------------------------- Michael P. Tremoglie, writing for Legal Newsline, reports that new rules announced May 11 by the Supreme Court of Pennsylvania direct unclaimed money from class-action lawsuits be mandated to provide legal services for low-income Pennsylvanians. Prior to this, the disposition of residual funds was left to the discretion of the trial judge. The new civil procedure rules take effect July 1. The money is what remains after the plaintiffs, attorney fees and expenses have been paid. This includes money for plaintiffs who cannot be located or who don't file claims. The Interest on Lawyers Trust Account (IOLTA) Board is to receive the newly court-ordered allocation of funding. "The legal needs of many Pennsylvanians have risen with the level of uncertainty in the nation's economy," Chief Justice of Pennsylvania Ronald D. Castille said. "But many legal aid organizations can only do so much. These new rules will provide underlying support for a new revenue stream while also standardizing the practice of disposing of leftover funds rather than the current discretionary practice." According to the Supreme Court announcement, the rules require that 50 percent of the funds be designated to the IOLTA Board. The remaining 50 percent may also be designated to the IOLTA Board or to another organization that has a relationship with, or promotes the interests of, the class-action lawsuit's objectives. Unclaimed funds remaining from class-action lawsuits are called "cy pres" funds. According to the Supreme Court communique these funds are common because many times affected parties cannot be located or identified. Also, sometimes parties may be unable or unwilling to claim their shares of a settlement. The states of Illinois, Massachusetts, North Carolina, Tennessee and Washington have similar laws requiring these funds to go to charities, legal aid providers or other nonprofit organizations. However, the defendants, and defense lawyers, in class-action lawsuits maintain that this procedure is unjust and unethical. They have stated that the money should be returned to them since the funds are for the plaintiffs in the litigation and should not be used as a slush fund for lawyers or the courts. Asbestos Litigation ASBESTOS UPDATE: Rule v. Hardie Directors Clarifies Honesty Laws ---------------------------------------------------------------- Surviving Mesothelioma and Cancer Monthly reports that after a legal battle that lasted more than 10 years and prompted a made- for-TV movie in Australia, seven former corporate directors were recently found guilty of lying to employees and the public about mesothelioma compensation. Building product company James Hardie Industries was Australia's biggest producer of asbestos cement and had manufactured asbestos products of various kinds since the 1930's. In 2001, it moved its operation overseas, leaving behind a trust fund for Australian workers whose asbestos exposure at work put them at risk of mesothelioma and other asbestos related diseases. The company publicly stated that this mesothelioma compensation fund was 'fully funded' and would provide 'certainty' for current and future mesothelioma victims. In fact, the fund was on the verge of bankruptcy and did not have sufficient money set aside for mesothelioma compensation. A study commissioned to project future claims was never finished and Australian media reports say the fund was AU$1.5 billion short of what it would need to fully compensate asbestos workers who contracted mesothelioma. The most famous of those workers was Bernie Banton, a former James Hardie employee who became an outspoken advocate for asbestos victims before he died of mesothelioma in 2007. The public outcry incited by Banton forced the company to agree to replenish the inadequate mesothelioma compensation fund. Banton's story, and the story of the seven James Hardie directors who were on trial, became the subject of a made-for television movie now in production. But the Australian Securities and Investments Committee (ASIC), the regulatory agency for Australian corporations, brought the James Hardie directors to trial over their deceptive statements about mesothelioma compensation. Although the recent ruling of Australia highest court will have little direct bearing on current mesothelioma patients, it does clarify the rules for honesty in corporate communication and will force Australian companies to present more reliable information to current and former employees, as well as to stockholders and the public. Bernie Banton's widow told the Australian press that the ruling was "bittersweet", largely because it came so many years after the fact. Hundreds of former James Hardie employees have contracted asbestos-related diseases like mesothelioma. Australia has one of the highest per capita mesothelioma rates in the world. ASBESTOS UPDATE: NSW Draws Ire in Rejecting ALRC Recommendations ---------------------------------------------------------------- Genevieve Gannon and Neda Vanovac of The Australian Associated Press report that asbestos victims and their families are calling for public rallies to protest against a NSW government decision that could mean less money for women widowed by asbestos disease. In rejecting the recommendations of the Australian Law Reform Commission (ALRC) on May 11, the government said the proposed changes would breach an agreement that compels James Hardie to compensate asbestos victims. Under the agreement, the NSW government promised it would not legislate to increase or decrease damages for dust diseases. Barry Robson, president of the Asbestos Disease Foundation of Australia, called for unions to mobilize "anti-government forces" for a public campaign that could include rallies outside parliament. "We're really pissed off about this," Mr. Robson told AAP. "The gutless wonders should be fighting for widows." Unions NSW also condemned the decision. Secretary Mark Lennon said the spouses of asbestos victims would suffer significant financial disadvantage. The proposed changes would have allowed families of victims to launch a case for damages up to 12 months after the death of their relative, the opposition said. KPMG estimated implementing the recommendations would increase the potential liabilities of the Asbestos Injuries Compensation Fund by between AU$23.4 million and AU$182.3 million. The opposition branded the decision "callous". "It takes an incredibly callous and uncaring government to refuse to support asbestos victims and the families they are forced to leave behind," Opposition Leader John Robertson said in a statement. The widow of asbestos campaigner Bernie Banton, Karen, told AAP the situation was "extremely disappointing". "Often filing a claim is the last thing sufferers and their families want to contemplate," she said. "They can't stomach the thought of going down the legal path when they're (dealing) with this diagnosis." The Australian Manufacturers and Workers Union said the O'Farrell government cared more about lining its coffers than supporting the families of asbestos victims. "Taking money from innocent victims is as low as it gets," national secretary Paul Bastian said in a statement. "Other states are showing a bit of heart and compensating the dependents of those killed from exposure to asbestos. Why can't NSW step up to the plate?" The law has already been reformed in Victoria, South Australia and Western Australia. NSW Attorney-General Greg Smith said he regretted the disappointment the decision had caused. "The government needs to consider the importance long-term of providing certainty of continued compensation to all asbestos victims," he said. ASBESTOS UPDATE: FACT Act Slows Down and Complicates Claim Process ------------------------------------------------------------------ Mesothelioma News.com relates that not many people in the asbestos community are familiar with the 2012 FACT Act (or HR 4369, technically speaking). Yet, this act could significantly impact the ability of many asbestos claimants to receive compensation from asbestos trust funds. And not in a good way. On the surface, the FACT act promotes transparency in asbestos claims. And, as we have learned when dealing with the asbestos industry, transparency is crucial. Under the current system, when someone develops a serious illness that is scientifically and medically linked to asbestos exposure (including cancers such as mesothelioma and certain types of lung cancer), this person can legally ask for compensation from responsible asbestos trusts to help cover medical and other expenses. The FACT Act, however, would place new burdens on the trusts when it comes to doling out compensation. Trusts would be required to publicly disclose personal claim information, including information about a claimant's exposure and work history. Companies responsible for a person's asbestos exposure would also be allowed to demand whatever additional information they want from the asbestos trusts -- at any time and for almost any reason. The idea, at least on paper, is to limit trust fund abuse. Yet, the trust fund process is not abused, so it is highly unlikely that those behind this bill are truly concerned about "transparency." In fact, the bill would override established state laws regarding the disclosure of information and significantly slow down the claims process. On May 10, 2012, the U.S. House of Representatives held a hearing on the FACT Act. Bottom line: the FACT Act is bad news for mesothelioma victims. The bill would make the asbestos trust compensation process cumbersome in order to discourage people from making claims and make the process long and complex. * * * Business Insurance relates that the system of asbestos bankruptcy trusts created by Congress nearly 20 years ago was designed to make sure people injured by exposure to asbestos could be compensated. But over the years, concerns have arisen that the current system can be gamed. There's a concern that claimants can seek multiple recoveries from different funds, or tap funds and the tort system. That's why we welcome the introduction of the Furthering Asbestos Claims Transparency Act. The act would require asbestos trust funds to make quarterly reports about claims and exposure allegations. The measure also would provide protection for claimants' identities and personal medical information. These are hardly radical ideas, but such disclosures could help deter duplicate claims. A report issued by the Government Accountability Office last September said that between 2000 and 2011, the number of asbestos personal injury trusts increased from 16 to 60. The trusts' collective assets increased from a little over $4 billion to nearly $37 billion during the same period. That's a significant amount of money. But one of the major problems is that the 60 trusts operate independently of each other, and there's no central clearinghouse for claims data and other information. In addition, there's no linkage between the trusts -- which represent the assets and liabilities of companies that sought bankruptcy protection because of asbestos claims -- and the tort system, where solvent companies must defend asbestos claims. No one knows how much fraud is involved in the system. But given the amount of money involved, greater transparency strikes us as a worthy -- and imperative -- goal. It's a matter of fairness, and not just for those who are paying the claims, be they trusts, insurers or companies that are defending themselves in the tort system. It's a matter of fairness for the claimants themselves. The purpose of the trusts is to compensate the injured. As we noted, there's an impressive amount of money involved, but it's not unlimited. Curbing even potential double-dipping and other fraudulent acts will help ensure there are adequate funds to compensate the truly ill. ASBESTOS UPDATE: Hanford Site Test Results Show Low Toxic Levels ---------------------------------------------------------------- Pat Guth for the Mesothelioma Cancer Alliance reports that workers at the Hanford Site in Washington State don't have to worry about dangerous asbestos levels, the U.S. Department of Energy (DOE) reported earlier when results of random sampling showed no seriously elevated levels of the toxic material. According to an article in the Tri-City Herald, testing was prompted earlier this year when workers began to raise concerns about asbestos exposure during activities associated with the demolition of facilities at the former nuclear production complex. In particular, Hanford workers were concerned that asbestos insulation from outdoor steam lines may have been affected by the weather or other nearby work, causing it to become friable and flake off. In addition, they questioned whether asbestos- containing materials that may remain on the ground from already demolished buildings could be damaged by walking or driving through them, causing the release of airborne fibers. Workers also believed that deteriorating existing buildings not yet demolished could present asbestos hazards. Any of these scenarios presented by employees could potentially result in the inhalation of toxic asbestos fibers, which can cause diseases such as asbestosis and mesothelioma cancer. The huge amount of concern, notes the article, stemmed partly from an EPA report on whether the Hanford workers should be able to mechanically remove asbestos-containing cement board, also known as transite. Though it is considered unfriable, the EPA worried that removal with an excavator would cause it to crumble or be reduced to powder, presenting further risk to the workers. However, the DOE hopes that workers concerns disappear with the latest report, which involved the findings from more than 2,800 samples collected during demolition activities and another 277 samples from devices attached to workers' lapels during earlier demolition of several asbestos-containing buildings. Samples were also taken from vehicles at the construction site and the water supply was tested as well. All samples showed no findings that should be of concern to those at the site, the department said. They're hoping that a program launched earlier this year, which involves picking up any fragments of materials suspected of containing asbestos and adding covers, including soil, to certain areas, helped in the campaign to keep workers safe. ASBESTOS UPDATE: Carcinogen Find Stops Work at New Sutton Plant --------------------------------------------------------------- Pat Guth for the Mesothelioma Cancer Alliance reports that work on the new Sutton Energy Plant in Wilmington, North Carolina grinded to a halt when workers digging in the area uncovered asbestos materials. According to a story aired on WECT-TV6 News, workers at the new natural gas plant found asbestos debris that likely came from an underground structure that was more than 50 years old and built during a time when asbestos use was commonplace, especially in power plants. Tests were immediately performed on the material and came back positive for asbestos. Representatives of the Occupational Health and Safety Administration (OSHA) were called in to assess the situation and it was determined at that time that all construction should stop until the issue can be fixed. Another pile of asbestos had been found a few weeks ago and that material has since been removed. Scott Sutton, a representative from owner Sutton Energy in Wilmington, told the media that he was unaware of any complaints of health issues related to asbestos exposure. Nonetheless, the energy company wants to be sure that exposure doesn't occur, hence the work stoppage. The company also stressed that anyone working at the existing Sutton Energy coal burning plant on the site is not in danger of inhaling asbestos fibers, which can cause tumors to form and result in a diagnosis of mesothelioma cancer, asbestosis, or other lung diseases. In the meantime, the situation continues to be assessed and a team from OSHA will make a decision as to when the 350 workers on the project can return to their jobs. Officials hope that the plant will be completed by 2014 and hope that the asbestos removal won't delay construction to any great extent. ASBESTOS UPDATE: NOA Usage With Immunity Package Bill Signed In --------------------------------------------------------------- Tim Povtak of The Mesothelioma Center reports that Alaska Gov. Sean Parnell set a dangerous precedent by signing into law a bill that will allow naturally-occurring asbestos (NOA) to be extracted and used in construction projects around the state. The bill, which may be putting development and profits before public health, also protects construction companies that use the asbestos gravel from any future legal responsibility in utilizing the toxic material. Asbestos is a well-known carcinogen that can lead to a variety of respiratory issues, including asbestosis, lung cancer and mesothelioma cancer. Although for years Alaska had the lowest rate of asbestos-related deaths in the country, that could be changing in the future. Democrat Reggie Joule of Kotzebue, who sponsored the original HB 258, said the law was needed to restart construction that was halted in the Upper Kobuk area once the state began enforcing federal workplace standards in 2003. Expansion of a much-needed sewage project, roads and improvement to an airport runway, would not be completed without the new law because it was cost-prohibitive to use anything but the asbestos- laden gravel that was mined in the area. The bill does have a provision that requires gravel with a concentration of asbestos beyond a quarter of one percent to come with a site-specific handling and safety plan from a project manager. Health experts around the world, though, have agreed there is no amount of asbestos that is considered safe to humans. The bill would give legal immunity to communities, landowners and owners of the contaminated gravel if any health problems arose. People who may get sick from the asbestos would be unable to seek damages from those responsible. Senate Judiciary Chairman Hollis French (D-Anchorage) was one of the few who voted against the bill. His committee had challenged the legal immunity issue and written in limits to that immunity. Those limits, though, were removed before the bill was passed. "I don't believe in blanket immunity because people get very, very, sick from asbestos," he said. "And there's no safe threshold of asbestos." The state of Alaska has several areas with naturally occurring asbestos. The bill will allow the asbestos-laden gravel to be used for Department of Transportation and public facilities. According to Alaskapublic.org, this year's capital improvement budget in the Upper Kobuk area includes school renovation and roads in the Ambler Mining district. The debate on the Senate floor centered around a compromise between the needs of the community and the health of the citizens. Gara spoke of his concern when the asbestos gravel is used where children will be playing or when an added protective material begins to wear off. He also pressed for an amendment that would have required a public hearing for people who might be affected by a project that included asbestos gravel. That, too, was rejected by Gara's peers. ASBESTOS UPDATE: Exxon Valdez Appeals India Supreme Court Ruling ---------------------------------------------------------------- Kristen Griffin for the Mesothelioma Cancer Alliance reports that in one of the world's worst oil spills, the Exxon Valdez was responsible for dumping millions of tons of crude oil in Prince William Sound in Alaska in 1989 after running into rocks. The Exxon Valdez oil spill caused an ecological disaster that resulted in destroying Prince William Sound's fishing industry. Now known as the "Oriental Nicety," the infamous ship is banned from entering India until the owners verify that the ship does not contain any toxins. Toxins in question include asbestos, mercury, arsenic and residual oil, and the ship must be fully decontaminated, according to Indian officials. A ruling by the Supreme Court in India prevented the Exxon Valdez from entering a scrap yard in the state of Gujarat where the ship would have been turned into metal parts estimated at $16 million. This issue was brought before the Supreme Court by concerned environmental activists citing the uncontrolled and mandated business of bringing in potentially dangerous ships to be broken down. Current owners -- a shipbreaking firm -- purchased the Exxon Valdez in order to turn it into scrap parts. Further, Gujarat officials have banned the Exxon Valdez from anchoring near the coastline during the decontamination process. The Exxon Valdez's last moments highlight another issue concerning India's shipbreaking industry. Law governing India's vast shipbreaking industry are relatively lax when it comes to workers' safety. Environmental activists cite that many workers who work on ships that have not yet been contaminated are oftentimes exposed to deadly toxins. Exposure to the toxins found on the Exxon Valdez can be life- threatening. Asbestos exposure is the only known cause of mesothelioma, a rare, yet deadly form of cancer that affects the protective lining of the lungs, heart or abdominal cavity. Separately, asbestos has been used to build ships before the substance was banned in manufacturing. Exposure to mercury leads to impaired speech, hearing and vision. Arsenic is linked to many types of cancer and a lower immune response to infections. However, the level of exposure needed to reach deadly diseases linked to arsenic or mercury poisoning vary, but with asbestos, even the smallest amount may lead to mesothelioma. The owners of the Exxon Valdez are currently trying to appeal the ruling. ASBESTOS UPDATE: Subcommittee Reviews House Resolution 4369 ----------------------------------------------------------- John O'Brien of Legal Newsline reports a House subcommittee was scheduled to hold a hearing on May 10, over a proposed bill that would allow defendants in asbestos lawsuits to discover information about a plaintiff's claims against bankrupt companies. The House Judiciary Committee's Subcommittee on Courts, Commercial and Administrative Law was set to take up the issue 9:30 a.m. EST. House Resolution 4369 would require bankruptcy trusts, which were created by companies that went bankrupt from asbestos litigation to pay claimants, to disclose claims and exposure allegations while providing third-party discovery in civil lawsuits. The trust system operates independently of the tort system. More than 90 companies have gone through bankruptcy as a result of asbestos litigation, creating at least 60 trusts. The legislation was introduced in April by two Republicans, Ben Quayle of Arizona and Dennis Ross of Florida, and Democrat Jim Matheson of Utah. In April 2010, U.S. Rep. Lamar Smith, R-Texas, asked the Government Accountability Office to investigate the trust system. He pointed to an oft-cited 2007 instance in Ohio, where in Cuyahoga County the California law firm of Brayton Purcell claimed the late Harry Kanania died in 2000 of mesothelioma solely from smoking cigarettes made by Lorillard Tobacco, while simultaneously seeking compensation from multiple asbestos trusts, claiming their products led to Kanania's fatal lung condition. The GAO released its report in October, finding no fraud in the system. It did note that the trusts operate in secrecy. "Although the possibility exists that a claimant could file the same medical evidence and altered work histories with different trusts, each trust's focus is to ensure that each claim meets the criteria defined in its (trust rules), meaning the claimant has met the requisite medical and exposure histories to the satisfaction of the trustees," the report says. "Of the trust officials that we interviewed that conducted audits, none indicated that these audits had identified cases of fraud." At least two states have proposed similar trust reform. Ohio's senate heard testimony in March on a bill already passed by the House of Representatives, while Oklahoma's senate passed a bill on March 14. The Oklahoma bill is currently sitting in the House Judiciary Committee. ASBESTOS UPDATE: Pfizer Disputes Rule, Pursues Quigley's Exit Plan ------------------------------------------------------------------ Tiffany Kary of Bloomberg Business News reports Pfizer Inc.'s bankrupt Quigley Co. unit will continue its eight-year bankruptcy, and seeks to challenge a federal appeals court ruling, a Pfizer lawyer said. Jay Goffman, Esq., told U.S. Bankruptcy Judge Stuart Bernstein in Manhattan court on May 10 that Pfizer may challenge a higher court's ruling in April that found Pfizer isn't entitled to protection from some asbestos claims related to Quigley. Pfizer also plans to proceed with Quigley's bankruptcy, and seeks to have it exit court protection in September. "We think they got it wrong," Goffman said of the April appeals court ruling, adding that Pfizer may bring a challenge to the U.S. Supreme Court. Quigley, founded in 1916, made three products for the steel industry from the 1940s to the 1970s that contained asbestos. Pfizer bought Quigley in 1968, and the company stopped most operations in 1992, filing for bankruptcy in 2004. Pfizer has said it never made or sold any Quigley products, and some claimants hadn't released Pfizer from alleged "derivative liability." Bernstein had ruled in bankruptcy court that Quigley's Chapter 11 case barred certain lawsuits against Pfizer. A May 2011 decision in district court reversed the order, and Pfizer had appealed that ruling. "We affirm the district court," three judges said in April's ruling that upheld the May decision. In doing so, they found that the law firm Peter G. Angelos can sue Pfizer based on manufacturer liability under Pennsylvania law. 1999 Lawsuits Angelos began bringing lawsuits against Pfizer in 1999, saying that because the drug company's logo appeared on Quigley products, it should have liability for the asbestos-containing products. Goffman also told Bernstein on May 10 that Quigley plans to file a Chapter 11 plan by the end of the month that is based on terms with creditors it has already negotiated. Lawyers for creditors as well as the U.S. Trustee, an arm of the Justice Department that oversees bankruptcies, said they would object to any plan that was the same as the old one. "We don't want a do-over of what happened last time," said Greg Zipes, a lawyer for the U.S. Trustee. The U.S. Trustee, an arm of the Justice Department, had asked the bankruptcy court to end Quigley's Chapter 11, citing the fact that creditors alleging asbestos-related health issues have been unable to sue New York-based Pfizer during the case, and many of them have died. Manipulated Process Bernstein had said that Pfizer had manipulated the bankruptcy process, and refused to allow Quigley to exit Chapter 11 court protection under a deal with Pfizer. During Quigley's bankruptcy, a committee of creditors known as the "Ad Hoc Committee of Tort Victims" also asked in October 2010 to have Quigley's bankruptcy dismissed so it could bring tort claims, which are otherwise blocked by bankruptcy law. Asbestos claims against Quigley may total $4.45 billion during the next 42 years, according to testimony cited by Bernstein in September. In November, Pfizer reported a $701 million third- quarter charge for asbestos litigation related to Quigley. The case is In re Quigley Co., 04-15739, U.S. Bankruptcy Court, Southern District of New York (Manhattan). The appeals case is 11-2635, 11-2767, 2nd U.S. Circuit Court of Appeals (Manhattan). ASBESTOS UPDATE: NY Court Allows Crane Co. to File Amicus Brief --------------------------------------------------------------- The Court of Appeals of New York granted the motion filed by Crane Co. for leave to file a brief amicus curiae, and the brief is accepted as filed. The case is IN THE MATTER OF EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION: STEPHEN DRABCZYK, ETC., Respondent, v. FISHER CONTROLS INTERNATIONAL, LLC, Appellant, Motion No: 2012- 346 (N.Y. App. Ct.). A copy of the May 8, 2012 Decision is available at http://is.gd/wxw58Pfrom Leagle.com. ASBESTOS UPDATE: NY Court Junks Leave for Appeal in Suit v. Fisher ------------------------------------------------------------------ The Court of Appeals of New York, in the case captioned IN THE MATTER OF EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION: STEPHEN DRABCZYK, ETC., Respondent, v. FISHER CONTROLS INTERNATIONAL, LLC, Appellant, Motion No: 2012-237 (N.Y. App. Ct.), denied a motion for leave to appeal and directed the payment of $100 costs and necessary reproduction disbursements. A copy of the May 8, 2012 Decision is available at http://is.gd/Qe5M5Cfrom Leagle.com. ASBESTOS UPDATE: La. High Ct. Reverses Ruling in Video Deposition ----------------------------------------------------------------- Mary Ann Trascher, wife of Joseph C. Trascher, and her daughters Karen Carroll and Toni Burrell, filed suit against numerous defendants in August 2007, asserting survival and wrongful death claims arising out of Mr. Trascher's illness and death allegedly caused by his work place exposure to asbestos. A writ application was filed in the case involving the admissibility of a video deposition taken to perpetuate testimony where the deposition was halted due to Mr. Trascher's failing health and fatigue, and the deponent died before his deposition could be continued and before he could be cross-examined by opposing counsel. After reviewing the record and the applicable law, the Supreme Court of Louisiana found that while most of the video deposition is inadmissible, parts of the deposition are admissible under an exception to the hearsay rule. Accordingly, in a May 8, 2012 decision, the Louisiana Supreme Court reversed the judgment of the district court in part and affirmed in part. The case is JOSEPH C. TRASCHER, ET AL., v. PETER TERRITO, ET AL., No. 2011-CC-2093 (La.). A copy of the May 8 Decision is available at http://is.gd/Gyk3Rjfrom Leagle.com. ASBESTOS UPDATE: Suit v. Landlord Junked for Lack of Jurisdiction ----------------------------------------------------------------- Richard C. Olivadoti filed an action, pro se, against his landlord, 290 Riverside Co., LLC. In his Amended Complaint, the plaintiff brings 16 causes of action, stemming from his alleged exposure to mold, lead paint, and asbestos during the course of his tenancy, as well as from the defendant's alleged failure to provide notice of repairs to the plaintiff. The plaintiff seeks $1.2 million in medical and emotional damages. Pending before the Court is the defendant's motion to dismiss the Amended Complaint, under Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(5), for insufficient service of process. In a May 8, 2012 opinion and order, Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York granted the defendant's motion to dismiss for lack of jurisdiction noting that service of the original and amended complaints were made only upon the defendant's counsel for the purpose of litigating the case, but who was not authorized by the defendant to receive process on its behalf. Judge Engelmayer also pointed out that the plaintiff's service process was improper because mail is not an acceptable method of service for corporations under Fed. R. Civ. P. 4 or for limited liability companies under New York law. The case is RICHARD C. OLIVADOTI, Plaintiff, v. 290 RIVERSIDE CO., LLC, Defendant, No. 12 Civ. 386 (PAE) (S.D.N.Y.). A copy of Judge Engelmayer's Decision is available at http://is.gd/jlb4vNfrom Leagle.com. ASBESTOS UPDATE: NY Court Disallows Blackman's Insurance Claims --------------------------------------------------------------- The Superintendent of Finance of the State of New York (f/k/a the Superintendent of Insurance), as Liquidator of Cosmopolitan Insurance Company, seeks to restore the case captioned In the Matter of the Liquidation of COSMOPOLITAN INSURANCE COMPANY, v. Claim of: Blackman Plumbing Supplies, Inc. 42638/80, Sequence No. 016 (N.Y.), to active status and upon restoration, moves for an order disallowing the remaining claims of Blackman Plumbing Supplies, Inc., and releasing the $6 million which, pursuant to court order, was to be made available for those claims and finally, dismissing those claims pursuant to CPLR Sec. 3126 and Insurance Law Article 74 based upon the failure of claimant Blackman to provide proof of their claims in liquidation. Blackman cross-moves for an order declaring that the Liquidator is obligated to reimburse Blackman for any cost incurred in defending the underlying personal injury actions where exposure to asbestos has been alleged to have occurred between 1975 and 1980, to indemnify Blackman for any liability on these asbestos claims and to reimburse Blackman for its fees and costs incurred to date in defending and settling the personal injury actions for the claims submitted to the Liquidator. In a May 7, 2012 decision, Judge Cynthia S. Kern of the Supreme Court, New York County, granted the Liquidator's motion and denied Blackman's cross-motion. Judge Kern held that Blackman fails to establish it that the claims fall within the scope of the alleged insurance policies. "In a dispute over insurance coverage, the insured bears the initial burden of establishing that the loss claimed falls within the scope of the policy," Judge Kern pointed out citing Bread & Butter, LLC v Certain Underwriters at Lloyd's, London, 78 A.D.3d 1099 (2d Dept 2010). Without producing the relevant policies, Blackman is unable to prove that it had coverage for the claims at issue. Although the parties agree that there were policies in effect between September 11, 1975 and October 17, 1980 and that those policies did not contain an asbestos exclusion, those facts are insufficient to establish coverage for the relevant claims. Coverage cannot be determined without the policies. Blackman's argument that the language of the policy is construed against the insurer is correct, but that argument assumes that there is language available to construe, Judge Kern noted. Without the policies, Blackman cannot show that it had coverage for the relevant type of injuries during the relevant time period, the Court added. A copy of Judge Kern's Decision is available at http://is.gd/ydv0WDfrom Leagle.com. ASBESTOS UPDATE: Chrysotile Institute Posts Plans to Dissolve ------------------------------------------------------------- Robert Hiltz of Postmedia News reports that a decades-old pro- asbestos lobby group, currently funded by the Quebec government, will be shutting its doors after notifying the federal government of its plan to dissolve. The Montreal-based Chrysotile Institute issued the notice in the Canada Gazette -- the government's official publication for announcing new laws and other public information. The institute, first formed in 1984, promotes the safe use of chrysotile asbestos on behalf of Canada's asbestos mining industry. NDP MP Pat Martin -- a longtime critic of the asbestos industry and former miner himself -- said the closing of the institute signals the "death knell" of asbestos mining in Canada. "I see it as a real tipping point in the movement to get Canada out of the asbestos industry," Martin said. "It's just another demonstration of the death rattle of the asbestos industry in this country." He said he first learned of the institute's intention to dissolve on April 28, International Workers' Memorial Day -- a day of commemoration for workers injured and killed around the globe. "I've lost an awful lot of friends and colleagues to asbestos in my time as an asbestos miner and a carpenter in the building trades," Martin said. "It was very poignant for me to learn that (the institute was closing) on the very day of mourning for injured and fallen workers with the flags at half mast -- it was very, very fitting." Asbestos is a fibrous construction material used as insulation that has been linked to a number of lung diseases, including certain types of cancer. In a number of Asian countries, including India, activists are increasingly holding demonstrations to protest asbestos exports because they say the substance is harming workers. The Chrysotile Institute has long countered by saying that as long as asbestos is handled in a safe and controlled manner, it causes little risk to workers. Canada's asbestos industry is centered on two mines in Thetford Mines and Asbestos, both in Quebec -- and both currently out of production for the first time in 130 years. Quebec's Industry Department has offered the Jeffrey Mine in Asbestos a loan guarantee of $58 million if Balcorp Ltd. of Montreal is able to find $25 million in financing to reopen the mine. Kathleen Ruff, senior human-rights adviser to the independent research group the Rideau Institute, said the closing of the lobby group sends a signal to the international community that the industry is collapsing in Canada. "It will be noticed all around the world because the Chrysotile Institute has been the key leader in pushing the interests in the asbestos industry around the world," Ruff said. The majority of asbestos mined in Canada is exported abroad to developing countries where asbestos regulations are less stringent. More than 50 countries have banned asbestos use. Canada drew international scorn when it moved to block the listing of chrysotile asbestos on a United Nations list of restricted chemicals last June. Listing the material on Annex III of the UN's Rotterdam Convention would have required "prior informed consent" to be provided by exporting countries. Once an importing country is informed of the dangers of the material, it could refuse to accept the potentially cancer-causing substance if they felt they would be unable to handle it safely. Under the convention protocol, chrysotile asbestos remained off Annex III because consensus was not reached between attending countries. The European Parliament has chastised the Canadian government over its asbestos exports -- as well as for the seal industry and oilsands development -- and issued a news release expressing members' concerns of the harm the substance caused to miners. The use and processing of asbestos is banned within the European Union. Australia's Upper House also passed a motion in November calling on its government to apply pressure to Canada to end its asbestos exporting. The link between exposure to asbestos and other types of cancers is not clear, Health Canada says on its website. However, the International Agency for Research on Cancer, affiliated with the World Health Organization, has concluded after a full review of the scientific research that asbestos, including chrysotile asbestos mined in Quebec, "is carcinogenic in all its forms." Recently, asbestos research conducted at Montreal's McGill University was called into question by a documentary aired on CBC television. The university launched a preliminary review of the work of one of its retired professors following allegations the university had close ties to the industry. Along with the documentary, a letter making similar allegations was sent to McGill officials by doctors, scientists and academics that included McGill faculty on the same day the documentary was aired. Both the letter and the film suggested researchers at McGill received funding from the industry to publish research that would make chrysotile asbestos seem less harmful to health than it is. The World Health Organization estimates that globally, more than 100,000 people die from asbestos-related illnesses, including cancer, every year. Emails to the Chrysotile Institute were not immediately returned on April 29 and the phone number listed on the institute's website was no longer in service. ASBESTOS UPDATE: ADAO Celebrates Chrysotile Institute Dissolution ----------------------------------------------------------------- A Statement from Linda Reinstein, Co-Founder, President & CEO of the Asbestos Disease Awareness Organization regarding the Canadian Chrysotile Institute's recent closure: "On behalf of the Asbestos Disease Awareness Organization (ADAO), we are pleased to announce that the Montreal-based pro-asbestos Chrysotile Institute has officially announced its closure. ADAO travelled to Washington, D.C. in October 2011 to discuss the asbestos problem with Canadian Embassy officials and is thrilled to hear the news of the end of such a large pro-asbestos Canadian entity. The Institute, first formed in 1984, has for decades promoted the safe use of chrysotile asbestos on behalf of Canada's asbestos mining industry. Poignantly, news of the institution's closure first broke on Saturday, April 28, recognized around the world as International Workers' Memorial Day, and subsequent phone calls discovered that the institute's phone number was no longer in service. This signals a momentous step towards the cessation of the mining and exportation of asbestos in Canada, and symbolizes a promising future for the effort to globally protect public health. According to the Montreal Gazette, Pat Martin, Member of Parliament, a former miner and longtime critic of the asbestos industry, said, "I see it as a real tipping point in the movement to get Canada out of the asbestos industry." On the heels of the Eternit criminal verdict for Stephan Schmidheiny and Louis Cartier de Marchienne in Turin, Italy, ADAO is confident in the global progress towards an end to asbestos. However, while the Canadian Chrysotile Institute was a hugely powerful government-sponsored supporter of asbestos and pro- asbestos rhetoric, it is important to remember that equivalent organizations still exist in asbestos-producing countries such as Russia and Brazil. The World Health Organization estimates that 107,000 people die every year from asbestos-related diseases and our battle is far from over yet." Asbestos Disease Awareness Organization (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 an independent global organization dedicated to preventing asbestos-related diseases through education, advocacy, and community. For more information, visit http://www.asbestosdiseaseawareness.org ASBESTOS UPDATE: Swain & Co. Supports Ruling Against Cape Plc ------------------------------------------------------------- Swain & Co. Solicitors posts that the Court of Appeal in London upheld David Chandler's claim against Cape Plc. for asbestos exposure. The company was the parent company for Cape Products, which Mr. Chandler worked for over 50 years ago, and was dissolved years ago. As he could not claim against the dissolved company, Mr. Chandler pursued his case against Cape Plc. Swain & Co.'s specialist personal injury team, who deal with cases involving industrial diseases, are in support of this judgment. Asbestosis does not reveal symptoms for a long time after exposure, therefore a victim should have access to justice against an employing company, and where the company has been dissolved yet a parent company exists, this should mean that a victim can still seek justice. Swain & Co. has a specialist team of personal injury lawyers and solicitors that can act on a no win no fee basis, and ensure that you receive 100% of your compensation guaranteed. Swain & Co. offers free initial advice to discuss your potential claim, so call us for free at 0800 0351 999. ASBESTOS UPDATE: Cape Case Rule Takes Out 'Corporate Veil' Defense ------------------------------------------------------------------ Katy Dowell at The Lawyer reports that parent companies can be held liable for the health and safety of their subsidiaries' employees, the Court of Appeal has ruled in a case that will impact asbestos sufferers. Devereux Chambers' Robert Weir QC -- weir@devchambers.co.uk -- was instructed by Leigh Day & Co senior solicitor Vijay Ganapathy -- vganapathy@leighday.co.uk -- to represent David Chandler in his defense of the appeal by Cape, formerly one of the world's largest asbestos manufacturers. Jeremy Stuart-Smith QC -- j.stuartsmith@4newsquare.com -- of 4 New Square was instructed by Greenwoods Solicitors for the appellant. Upholding the first-instance ruling Lady Justice Arden stated: "This case demonstrates that in appropriate circumstances the law may impose on a parent company responsibility for the health and safety of its subsidiary's employees." The claimant had been employed Cape subsidiary Cape Building Products between 1959 and 1961, during which time he suffered heavy asbestos exposure from the dust escaping from a factory. However, Cape Building Products no longer existed and had no policy of insurance that would indemnify it against claims for asbestosis. Consequently, the claim was launched against Cape on the basis that it was jointly and severally liable to pay him damages. Historically parent companies have been able to avoid liabilities arising from work undertaken at their subsidiaries using the 'corporate veil'. This treats both parent and subsidiary as separate entities where one company cannot be found responsible for the actions of another. Arden LJ stated: "A subsidiary and its company are separate entities. There's no imposition or assumption of responsibility by reason only that a company is the parent company of another company." The judgment concluded: "There was, in my judgment, a direct duty of care owed by Cape to the employees of Cape Products. There was an omission to advise on precautionary measures even though it was doing research and that research hadn't established, nor could it establish, that the asbestosis and related diseases weren't caused by asbestos dust." Welcoming the ruling Ganapathy said: "It's no longer an excuse for parent companies to hide behind an aged legal principle in circumstances where they know that workers are at risk, but still chose to do nothing to help them. "This is of particular relevance in asbestos disease cases as many sufferers face insurmountable challenges in identifying and locating insurers for their former employers. As parent companies are much more likely to survive over the decades it takes for asbestos disease to develop, it should give hope to those now suffering that past negligence will not go unpunished." ASBESTOS UPDATE: ADS Raises Need of Action for Wittenoom Children ----------------------------------------------------------------- Matt Peacock of ABC News reports that campaigners say they are becoming increasingly angered by the rising toll of mesothelioma deaths from the site of Australia's biggest industrial disaster. More than two dozen people set out on May 1 to walk across the desert from Kalgoorlie to Perth to highlight the urgent need for more research into the deadly asbestos cancer. Perth is one of the world's mesothelioma hotspots, mainly because of the now-abandoned blue asbestos mine at Wittenoom in the Pilbara. More than 2,000 former workers and residents from Wittenoom have died from asbestos diseases and the toll is climbing. Alarmingly, it is now increasingly the children of Wittenoom who are falling ill. It is estimated that more than 20,000 people lived at Wittenoom before the asbestos mine there closed in 1966. But more and young people with mesothelioma linked to the Wittenoom site are walking through the doors of the Asbestos Diseases Society's Perth headquarters. "[In] the last 10 days, I think we got about 13 mesotheliomas," society spokesman Robert Vojakovic said. "They're not all from Wittenoom, it's a mix, but what we were always concerned about [is the] 5,000 kids who lived at Wittenoom. "And what made it really terrible for us that not only people who worked for mining companies are dying, but their children are dying and the grandchildren of the workers are dying from asbestos. "Many people who are dying [only had] small amounts of exposure, [they] can hardly remember or [don't] remember. "The parents tell us, 'Yes, I was cutting the back shed . . . I bought the stuff [asbestos] from James Hardie directly or I went down to the hardware [store] and I took a few sheets of asbestos and cut them [to] build a chook pen or cubby house. "We want to ignite the issue to tell the people asbestos is killing Australians. "We've got to do something about it. If we all ignore it, possibly our kids will die and our grandchildren are going to die from it." But despite the ever-growing toll of Australian victims, there has been a recent decline in overall government funding for mesothelioma research. So when Derren Carnaby, whose mother, father and two brothers all died from mesothelioma, approached Mr. Vojakovic with the idea of the fundraising walk across the desert, he was quick to embrace it. ASBESTOS UPDATE: Carcinogens Pushes Demolition Costs to $1.8 MM --------------------------------------------------------------- Rick Smith at KCRG.com, Cedar Rapids, Iowa, says to add $466,104 more to the $1.3 million cost surprise for demolition asbestos removal at the site of the new downtown library across Fourth Avenue SE from Greene Square Park. Bob Pasicznyuk, the city's library director, planned to report the nearly half-million-dollar addition to the project's demolition cost in a memorandum to the library's board of directors, on May 3. Initially, the board had estimated that the cost to remove asbestos as part of the demolition would be $42,916. However, a month ago, the library board approved the spending of an additional $1.3 million for the surprise asbestos removal, the total cost of which now has climbed to $1,766,014 with the latest addition, Pasicznyuk reports. To the library board's surprise, excavation at the new library site uncovered a large amount of asbestos-tainted debris from the Washington School built in 1855 and the Washington High School built in 1890, which once sat on the site. In the school demolition of 1946, much of the building ended up in the school's basement and boiler rooms over which an American Legion Post building and bowling alley was built. TrueNorth Companies Inc. moved into the building in 2001, and in early 2010, the City Council voted to purchase the site for the new library. The asbestos surprise at the site has delayed the expected opening date of the new library about four weeks, moving it into July 2013. In his memo to the library board before the meeting, Pasicznyuk also is asking the board to add $250,000 from private donations to the overall project budget to beef up the project's contingency fund. The initial $3-million contingency fund now has shrunk due to the asbestos-related demolition costs and some project enhancements. With the additional $250,000 added to the project's contingency fund, the overall project budget increases to $45,820,322, which Pasicznyuk notes is still $3 million less than the project's original projected budget. Three project enhancements being proposed to be covered by the project's contingency fund are a $300,000 addition to the $265,000 in the project budget to purchase art for the building; a $79,366 addition to pay for more thorough testing and inspection of the library's exterior shell; and a $60,000 addition to enhance the skywalk that connects the library to the Fourth Avenue Parkade. ASBESTOS UPDATE: Elizabeth Warren's Role With Travelers v. Bailey ----------------------------------------------------------------- Noah Bierman at Boston.com reports that six months after Elizabeth Warren arrived in Washington to work as an adviser to Congress, she experienced another career milestone in the nation's capital, a seat at the US Supreme Court's mahogany counsel table. The 2009 appearance was the only time Warren helped represent a party before the nation's highest court. And it provides a rare window into a less-heralded aspect of the Harvard Law professor's career, her time as a working attorney in the courts. The case -- Travelers v. Bailey -- was remarkable in many respects. It was sprawling and complicated, involving dozens of lawyers, thousands of asbestos victims, and nearly three decades of court battles that still have not ended. It was also notable because Warren, who has gained fame for defending consumers against big business, was in this case working on behalf of a big business. For her contribution, Warren was paid $212,000 over three years by Travelers, the nation's largest insurer. Travelers was fighting to gain permanent immunity from asbestos- related lawsuits by establishing a $500 million trust. The trust would have been divided among current and future victims of asbestos poisoning who had claims against the nation's largest asbestos manufacturer, Johns-Manville, which had been insured by Travelers before it went bankrupt. Travelers won most of what it wanted from the Supreme Court, and in doing so Warren helped preserve an element of bankruptcy law that ensured that victims of large-scale corporate malfeasance would have a better chance of getting compensated, even when the responsible companies go bankrupt. But after Warren left the case, it continued to twist and turn through the legal system, leaving a result that has been disastrous for asbestos victims. Travelers, in part because of its Supreme Court victory, has held onto its immunity from most lawsuits. But a ruling on Feb. 29 in a separate court has taken the company off the hook for paying out the $500 million settlement. In the words of one judge who tried to preserve the settlement, Travelers received "something for nothing." While Warren's Republican opponent in the US Senate race, Scott Brown, has highlighted this business arrangement as an example of hypocrisy for a candidate who has portrayed herself as the champion of consumers, a Globe examination of the convoluted legal record paints a murkier picture. It is clear that Warren received a substantial amount of money to help the company win immunity from all future lawsuits, with the expectation that the company would have to pay the settlement. But Warren's work on the case may also have helped Travelers indirectly lay the groundwork for its current position, a position Warren and several other lawyers involved on both sides of the case say they did not foresee: where Travelers has immunity from most suits without having to pay the settlement. "My heart goes out to the victims of this terrible, terrible disaster," Warren said in a recent interview. "It's heart- wrenching that there are new victims every year. . . . I think they should be compensated. That's it for me. That's what this is all about." Warren, like many law professors, keeps her hand in the courts while she teaches and writes. But that aspect of her career is largely in the background as she runs for Senate, a Democrat seeking to unseat Republican Scott Brown. The extent of her legal practice, and the clients she has represented, is unclear. Her campaign would not release a full list of cases she has been involved in. And, while some representation appears in scattered court records, much of her consulting can be done without placing her name on dockets as an attorney of record. Her campaign detailed six Supreme Court cases in which she has filed so-called friend of the court briefs. They include two briefs on behalf of the AARP: one of which supports protecting individual retirement accounts in the event of a bankruptcy and another that fights to allow judges to lower consumers' credit card interest rates in the event of personal bankruptcies. The campaign also provided a 2001-2003 case in which she testified in two trials as an expert working on behalf of asbestos victims, winning access to a $300 million trust, against insurance companies. Warren's campaign would not say how much she has earned for her outside work in these and other cases. The $212,000 she earned from Travelers from 2008 to 2010 was included in Warren's government disclosure forms, required when she worked in Congress and the Obama administration, and when she declared as a Senate candidate. The forms also show that she earned $90,000 for serving as an expert witness for a Florida law firm suing credit card companies. Four years of her tax returns show that she received an average of about $150,000 a year in gross income from her home-based consulting business that includes her legal work, public speaking, writing, and investing. Warren is considered a leading authority on bankruptcy, and the Travelers case was among a very few that reach the heights of the Supreme Court. She began writing and lecturing about bankruptcy trusts in the 1980s. The trust issue was also addressed in a 1,100-page congressional report on bankruptcy law, drafted in 1995 by Warren, the primary adviser for the National Bankruptcy Review Commission. An attorney who worked with Warren on that commission was heading Travelers' legal team and called her when the issue boiled up to the highest court. Travelers' main attorneys handled the oral arguments in front of the court. Warren sat with them as one of three attorneys of record listed on their brief, the important written argument made to the court. An attorney for Travelers, Andrew T. Frankel -- afrankel@stblaw.com -- declined to comment on the case or Warren's role in it while it remains under appeal. Jennifer Wislocki, a Travelers spokeswoman, said the company believes the most recent ruling in the case is correct, but would not comment further. Warren says she was fighting for an arcane but important principle in taking on the case: the constitutionality of allowing bankrupt companies facing a flood of lawsuits to form what are known as trusts. The trusts are large bank accounts that set aside money for current and future victims. Warren says that the trusts provide a fair system to distribute the money -- rather than first come, first served. But companies only will agree to them if they receive protection from future lawsuits. "The issue I was focused on like a laser was the constitutionality of preserving the trust, because the trust is a critical tool for making sure that people who've been hurt have a fair shot at compensation," she said. "Without it, millions of people who've already been injured will get nothing, and millions more in the future will get nothing." The legal saga began in 1986 when leading asbestos supplier and manufacturer, Johns-Manville, declared bankruptcy under a crush of asbestos-related lawsuits. Travelers insured Johns-Manville from 1947 through 1976. As part of Johns-Manville's bankruptcy proceedings, Travelers agreed to pay $80 million toward a larger $770 million trust fund that would pay off current and future asbestos victims who sued Johns-Manville. In exchange for its contribution, Travelers won a court order protecting it against related future lawsuits. Despite the order, the lawsuits kept coming, with some lawyers looking for ways around the protection order. Many made the new argument that Travelers conspired with other insurers and manufacturers to conceal the dangers of asbestos and failed in its own duty to warn the public about those dangers. Travelers wanted to stop the suits. So the company entered into another settlement with asbestos victims in 2004, this one brokered by Mario Cuomo, a former governor of New York who works as a professional mediator. It clarified the 1986 order and it required Travelers to pay a sum now worth about $500 million into the settlement fund. That Cuomo settlement was challenged by a smaller group of asbestos victims who did not want the company to gain immunity. It was also challenged by another insurance company, Chubb, which was being sued, along with Travelers and dozens of other insurers in multiple lawsuits, based on the theory that insurance companies conspired to hide the dangers of the substance. By suing to block the Travelers settlement, Chubb wanted to preserve its right to shift some of the financial blame back to Travelers in the event that it had to pay damages to asbestos victims. Such conspiracy suits have not been successful, but neither insurance company wanted to take on what its attorneys considered additional risk or defense costs. It was that issue that brought the case to the Supreme Court, where Travelers -- with Warren's help -- crafted a case designed to allow the company to put this issue to rest: pay out the $500 million and win immunity from any future suits. To do that, Travelers argued that the 2004 settlement was simply an extension of the 1986 agreement. Therefore, the case focused on the legality of that original agreement and the degree of protection it provided to Travelers against future lawsuits. Though some asbestos victims still objected to the Travelers settlement, another larger group of victims was on the same side as the insurer - at least during this portion of the case - in seeking to have the settlement upheld. The Supreme Court decision gave Travelers a victory, validating the legality of the 1986 agreement and the immunity it provided. But it left to the lower courts to decide whether Chubb had a right to challenge the 2004 settlement. That triggered another series of legal arguments that ultimately unraveled the $500 million settlement, leaving Travelers with permanent immunity from most asbestos lawsuits without having to pay the victims. The payment of the $500 million settlement was premised upon the company winning immunity from all lawsuits. But because an Appeals Court subsequently ruled that Chubb could still sue Travelers, still another judge ruled that the conditions had not been met to force Travelers to pay out the money. In his Feb. 29 order, US District Judge John G. Koeltl cited the Supreme Court case, saying essentially that Travelers never needed the second settlement, the one that cost it $500 million, to protect itself from most asbestos suits. Koeltl ruled that the 2004 settlement was simply a clarification to "obtain complete peace" against the likes of Chubb and other insurers. And because there was no peace from Chubb, there was no settlement. Plaintiffs' lawyers say they are not surprised Travelers would try not to pay the money. As a publicly traded company, it is obligated to serve its shareholders. "It's an insurance company," said Michael P. Cascino, a Chicago attorney representing a group of asbestos victims. "Unless you believe a corporation's a human being, how could it be sincere" in wanting to pay the settlement? Bruce Carter, an Ohio attorney representing 19,000 plaintiffs, added that "like any company, they'd love to get something for nothing. And that's really where they're at now." The case remains on appeal. In the meantime, Carter said, many of the families who have been waiting more than a decade for their settlement money have seen loved ones die. ASBESTOS UPDATE: Carcinogens Displace Ladder 15 and Medic Unit 47 ----------------------------------------------------------------- WPVI-TV Philadelphia, PA's Action News reports the Philadelphia Fire Department announced on April 30 that it is temporarily closing the building that houses Ladder 15 and Medic Unit 47 for an immediate and necessary maintenance repair. Action News has learned that the repair of the fire house at 1652- 54 Foulkrod Street in Frankford will address the possible presence of asbestos insulation encasing older heating and water pipes in the building. Asbestos is a known carcinogen. The fire department said in a statement that Ladder 15 and Medic Unit 47 have been temporarily relocated to the closest firehouses in the area "that have available space to accommodate the additional equipment and personnel" of each unit. "The Fire Department's Fire Communications Center will monitor all call activity in Ladder Company 15 and Medic 47's first response areas and if necessary, any logistical changes will be made immediately," said the statement. The fire department says the units will return to the Foulkrod Street facility once the necessary repairs are made. "The Fire Department's current expectation is for the repairs to be resolved promptly and the apparatus returned to their stations as soon as possible," said the statement. ASBESTOS UPDATE: Family Finds Carcinogens in Textured Ceiling ------------------------------------------------------------- Mary Pickett at Billings Gazette relates that seated in her nearly bare dining room, Pat Karell talks about living happily in her Marguerite Boulevard home the last 21 years. "It was a huge shock to find it was hazardous material," she said looking up at her white textured ceiling. "It looks so harmless." Every room in her house except the bathrooms and part of the kitchen has a textured -- or "popcorn" -- ceiling made with asbestos. So Pat and her husband, Allan, have packed their household goods and are moving out while the ceiling material is removed. Like most people, the Karells didn't think about asbestos when they bought the Wilshire Heights home or during the time they raised their four children there. With their children nearly out of college, they started planning to redo their ranch-style home. Late last year, Allan saw a DIY channel program about asbestos- laden textured ceilings. Allan had a sample of their ceiling tested, which confirmed that the material contained asbestos. Concerned about the health hazards of removing the ceilings themselves, the Karells got bids -- ranging from $9,000 to $19,000 -- from the three companies in Billings that have state-accredited employees to remove asbestos. They hired SafeTech, Inc., which had the lowest bid. Because the project involves the whole house, the couple boxed up their belongings and moved most of it out this week to a horse barn they own near Billings. The rest of their furniture will be moved to one floor of their house that will be sealed while ceilings on the other floor are worked on. When that floor is done, they will move the furniture to the finished floor, which will be sealed while ceilings on the other floor are worked on. The whole project is expected to take two weeks. After the work is done and cleaned up, they will have air inside their home tested to make certain all of the asbestos has been removed. "I've had people accuse me of overreacting," Pat said. But once the Karells discovered they had asbestos in their ceiling, they wanted it removed. "If I were buying a home I'd want to know if a textured ceiling had asbestos or if I was selling a home you'd think you'd want to disclose if a ceiling had asbestos." Years ago when she practiced law in Minnesota, she saw the end stages of diseases in men who had lengthy exposure to asbestos when they were pipefitters or plumbers. During one deposition, a man drank liquid morphine to dull his pain, she said. According to the EPA's website on household asbestos, exposure to small amounts of asbestos usually doesn't result in serious health problems. But when asbestos fibers are inhaled, they can remain in the lungs for a long time and increase the risk of disease. Textured ceilings are common in many areas of Billings. Not all textured ceilings have asbestos, "but a lot do," said Deb Grimm with the Montana Department of Environmental Quality's Asbestos Control Program. Although most people associate asbestos with homes built before the 1980s, asbestos building materials made in other countries may have come into the United States after that date, Grimm said. Materials containing asbestos also may have been stored for years and then used after 1980. ASBESTOS UPDATE: WorkCover Visit Cues Lake Macquarie Gym Abatement ------------------------------------------------------------------ 1233 ABC Newcastle reports that a visit by WorkCover inspectors has prompted a Lake Macquarie gym to remove sheeting believed to be asbestos. Concerns had been raised about corrugated sheeting that has been propped against an outside wall at the Planet Fitness Belmont gym. The ABC has been told it was there for several months, claims rejected by the gym. WorkCover visited the site on May 1 and a spokesman says inspectors treated the substance as asbestos, despite not doing any official testing. The ABC has been told the gym was not obliged to notify WorkCover as the amount of the material was not large enough. Despite this WorkCover stresses that all asbestos materials must be properly disposed of. It also adds that fibro cement sheeting has a lower likelihood of releasing asbestos fibers. Meanwhile, Newcastle gym Howzat is close to re-opening after being closed to allow for the removal of its asbestos-affected roof. ASBESTOS UPDATE: Carcinogens Found at Port Melbourne Pre-School --------------------------------------------------------------- Aleks Devic of The Herald Sun reports that there are fears for the health of dozens of young children after contaminated soil and asbestos were found at a Port Melbourne kindergarten being demolished. The Construction, Forestry, Mining and Energy Union has shut down work on the Lady Forster Kindergarten site until further notice. Port Phillip Council is now investigating. CFMEU Victorian organizer Steve Long said nothing should be built on the site until all contaminated soil had been removed. "God knows what the kids were playing with. These are kindergarten kids we are talking about," Mr. Long said. "The soil would've been contaminated when they were playing there. It's an absolute outrage that it was not picked up earlier." Kindergarten president Samantha Kinsman said it had previously been advised that the soil was safe. "I don't know where that leaves the children but I'd like to know," she said. She said all the soil should be removed before any new building went up. City of Port Phillip Mayor Rachel Powning said: "As with many older buildings, there is always a risk of asbestos and contaminated soil. Council has been aware of the contaminated soil and building asbestos since the project began, and that is why council put in place stringent safety and environmental safeguards." The demolition of the kindergarten's home of 86 years was met by anger from locals who fought to keep it. Heritage Victoria deemed the building to have no heritage significance and it was demolished to make way for a new children's center. Thirty children and seven staff were moved to a temporary site in Elwood while the new center was built. ASBESTOS UPDATE: Orenburg Argues Chrysotile Safer and Cheaper ------------------------------------------------------------- Busrin Treerapongpichit of Bankok Post relates that asbestos has been banned in almost 40 countries on the grounds that the fibers when inhaled can cause lung cancer. As a result, all amphibole asbestos mines have been closed. Only chrysotile asbestos mining remains. But few people know that there are two types of asbestos. And few people know why one type of mine has been closed while others are permitted to stay open. Some countries are preparing to impose a blanket ban on all asbestos without clear evidence demonstrating that chrysotile is harmful. Orenburg Minerals, the second largest asbestos miner in Russia, said the campaign has nothing to do with public health. It is about economic war, the company argues. "The attempt to ban all types of asbestos is simply to benefit the substitute material makers. Since chrysotile is the cheapest material suitable for mixing with cement for creating strength without harmful chemicals, and since chrysotile reserves can only be found in Canada, Brazil and Russia, if you want to have a foot in these markets, the easiest way is to wipe chrysotile out of the world," said Andrey Golm, director-general of Orenburg Minerals. Asbestos is used to increase the strength and durability of products, mainly building materials, disc brakes and water pipes. "While some countries have banned all types of asbestos, you know, the fact is that they are still using chrysotile-cement in disc brakes and water pipes, so what is this about?" said Mr. Golm. The World Health Organization and the International Labour Organization have researched the issue and have a position on the subject -- chrysotile should be regulated, not banned. The EU was not convinced by the WHO research. Anti-chrysotile campaigns have been relatively ineffective so far. But once there's some momentum, once people become fearful, they won't listen to facts, asbestos supporters said. Thailand is a significant user of asbestos-cement roof tiles and water pipes. Disk brakes in Thailand also use asbestos. Some local academics and the consumers protection groups are campaigning to ban asbestos. Thailand is the fourth largest chrysotile market for Orenburg -- the company sells US$200 million of asbestos here annually -- so Orenburg says it is trying to educate the Thai market. Uran Kleosakul, director of Oranvanich Co, which has 40% of the Thai tile market and is the largest client of Orenburg in Thailand, has vowed to fight the anti-asbestos groups. The roof tile maker, which markets products under the Oran brand name, said the company was not reluctant to discontinue the use of amphibole in its products 20 years ago once it knew that form of asbestos can cause cancer. But Mr. Uran believes chrysotile is safer than the substitute materials being used to replace it. Mr. Uran argued that cellulose from pulp paper needs to be mixed with silica, which can cause cancer in humans. Another substitute material is polyvinyl alcohol (PVA). It does not decompose in the human body. "If in the end the government gives in to these groups without considering the scientific information, we can't resist them of course. It will mean we need to change some machines, lose our leadership in the cheap roof tile market, but mind you we can survive. The biggest losers are people with low incomes who have to pay more for roof tiles that put their health at greater risk," Mr. Uran said, adding that the winners will be the substitute products companies. Research by the International Agency for Research on Cancer (IARC), a part of the WHO, has identified many hazardous substances, include alcohol, tobacco, salted fish and many substance we come across in our daily lives. It never mentions chrysotile. "A ban on chrysotile is similar to a ban on salted fish," said Orenburg's Golm. ASBESTOS UPDATE: Bega Valley Manager Says Risk From CWF Negligible ------------------------------------------------------------------ Liz Mccormick of Merimbula News Online reports that the Bega Valley Shire Council has hosed down concerns about its management of asbestos waste in the wake of a recent Sun Herald article that referred to asbestos contaminated mulch found at the Merimbula waste depot in September 2011 that was reported at the time in the News Weekly. The Wolumla Residents Action Group (WRAG) seized on the article to use it as a weapon in their fight to have the Central Waste Facility (CWF) proposed for Wanatta Lane discarded. They were quick to shoot off a letter to the council expressing reservations about the council's ability to screen all waste for asbestos fibers before it is dumped at the CWF. WRAG says it was revealed during the Environmental Impact Statement (EIS) process for the CWF that the council as part of its screening process would employ a staff member to "visually inspect incoming waste while perched up a ladder above incoming trucks". "In the light of the Sun Herald article, WRAG would like to go on the record by saying BVSC's planned approach to waste screening is totally unacceptable," WRAG said in the letter. "To compound the problem, waste entering the CWF is then to be dumped into landfill and crushed/ compacted to the smallest possible size." WRAG claims that illegally deposited asbestos would be converted to fibers/dust to be freely blown away by winds into neighboring properties. In response to WRAG's concerns council's waste services manager Toby Browne, said: "It should be pointed out that there are already asbestos fibers in the air we breathe. "Most healthy adults also have asbestos fibers in their lungs. "It occurs naturally in local geology and fibers will most likely be detectable in background concentrations at your property today." Mr. Browne continues to say: "Whilst there is no safe exposure level for asbestos fibers, the likelihood of contracting mesothelioma or lung cancer is proportionate to exposure level. "Asbestosis is a disease caused by long term occupational exposure, normally at high fiber concentrations and cannot be caused at low exposure levels. The risk to the community in relation to the operation of the CWF with regard to asbestos exposure is negligible." Nonetheless, Mr. Browne conceded the prevention of asbestos cement materials from re-entering the environment in reprocessed waste, such as from demolition sites where fragments of asbestos may be buried in soils is a challenge and this is largely due to the quantity of material removed which is usually measured in thousands of tons. "No amount of screening will completely eliminate the possibility of asbestos cement contamination." With reference to garden waste, Mr. Browne said that while council screens garden waste (where practicable) at the unloading site prior to reprocessing it, "the potential still exists to miss fragments of asbestos cement material." He said that alongside council, the community also needed to exercise care and diligence in its management of asbestos materials. He said that residents were legally obliged to classify their waste and that ignorance was not an excuse. "We have recently taken action against a number of people who ignore both signage and their legal responsibilities. "Unfortunately punitive measures are necessary to get the message across in some cases." ASBESTOS UPDATE: Libby Health Board Kicks Off Initiative -------------------------------------------------------- Pat Guth for the Mesothelioma Cancer Alliance reports that a proposed Libby Board of Health initiative, funded in total by a grant from the Environmental Protection Agency, will look for ways to reduce public exposure to dangerous amphibole asbestos during clean-up of the EPA Superfund site and will also determine what role it can play -- along with the town's citizens -- in reducing any further exposure after clean-up is complete. Allen Payne, a member of the Libby City-County Health Committee, notes that he hopes the initiative will provide an opportunity for local citizens who have been directly affected by the W.R. Grace asbestos-tainted vermiculite disaster to have direct input on how the naturally-occurring amphibole asbestos from the Grace mine will be managed in the community in the future. "As most Lincoln County residents already know, Libby amphibole asbestos is a naturally occurring mineral contained in the vermiculite mined by W.R. Grace in the Libby area," said Payne, the spokesperson for the committee. "Since 1999, the EPA has been removing vermiculite and Libby amphibole-contaminated materials from residential, commercial and public properties throughout South Lincoln County. EPA's cleanup effort is ongoing and may continue for a number of years, but eventually, the EPA will complete its cleanup work," Payne added. When all the EPA trucks have departed and the community is once again left on its own, it's important to have a plan in place, committee members note. That's why the Board of Health stresses that its primary goal is to encourage participation and discussion from community members, many of whom are struggling with asbestos- related diseases like asbestosis and others who have lost loved ones to the cancer known as mesothelioma. More than 400 Libby residents have already died due to asbestos exposure and another approximately 1,800 are sick. To kick off this initiative, the Board of Health has hired a program coordinator as well as an environmental and engineering consulting firm. They will assist in reviewing existing local health regulations and will help to put educational programs and other resources in place to assist local residents in keeping future asbestos releases and exposure to a minimum. ASBESTOS UPDATE: Tasmania's ARD Compensation Scheme Works --------------------------------------------------------- The Minister for Workplace Relations, David O'Byrne, on May 2 said that Tasmania's new Asbestos-Related Diseases Compensation Scheme is already making a significant difference for workers and families. Since it was introduced on Oct. 31, 2011, the scheme has paid-out almost AU$3 million to eight separate applicants. Mr. O'Byrne encouraged other Tasmanians affected by asbestos- related disease to consider making a claim. "It's been six months since we introduced Tasmania's first Asbestos Compensation Scheme, as a vital way of supporting Tasmanian workers in need," said Mr. O'Byrne. "Nothing can truly compensate workers and their families for the terrible pain caused by asbestos-related disease. But this scheme at least offers some comfort and medical support, at an extremely difficult time. "It was the right and decent thing to do, and I'm pleased to report that significant compensation is already flowing to families who need and deserve it," he said. The scheme allows current and former workers suffering asbestos- related diseases to receive timely compensation. Since it started, the Asbestos Compensation Commissioner has had enquiries from a broad section of workers -- such as former Goliath employees, council workers, roofing workers, and some occupations that are now obsolete. Approximately AU$2.9 million of compensation has been paid to workers and their families. The largest pay-out so far is approximately AU$540,000. As soon as the Commissioner approves a claim, the applicant is paid. Some applicants are receiving compensation within one day of it being approved. A worker doesn't have to prove their employer was negligent. They only need to prove they have an asbestos-related disease which is reasonably attributable to exposure at work. Mrs. Roxie Mulder was one of the scheme's first successful applicants. Her husband, Syd Mulder, passed away from pleural mesothelioma last year. "In October 2011, I reluctantly lodged a claim for compensation with the Tasmanian Asbestos Compensation Commissioner," Mrs. Mulder said. "Deciding to make the claim was extremely difficult. My husband had just died. It felt uncomfortable, but necessary for me and our children's future. "The documentation was easy to follow and work through. Shortly after sending off the claim I received a phone call from the Claims Manager. She explained fully how the claim would proceed and was very supportive. "Anything that wasn't included by me in the documentation we worked through together, and I was contacted on a regular basis to let me know how things were progressing. I felt encouraged and included at all times. "I would encourage those who can claim compensation to do so. Of course, no amount of money can ever make Syd's passing okay. He was a wonderful husband and father, and dedicated his life to providing for his family. "But making receiving compensation as a family member will enable the children and I to look forward to a more secure future. Syd would be very proud," Mrs. Mulder said. Mr. O'Byrne said the scheme has already allowed one worker with mesothelioma to enjoy watching his football team in Melbourne. "Another gentleman is taking an overseas holiday with his family, and another one is extending his house to look after his wife when he's no longer with her," Mr. O'Byrne said. "These are practical examples of the compensation scheme giving sufferers a better quality of life, when they need it most. "Supporting workers is what being in a Labor Government is all about, and I'm very encouraged to see this scheme working fairly and quickly. "I want to thank and congratulate the Commissioner, Michael Stevens, and his staff, who work hard to assess claims quickly and accurately," he said. Asbestos-related disease is still the biggest cause of work- related deaths in Australia. Information about the scheme, and how to apply, is available at http://www.asbestos.tas.gov.auor by calling 1300 366322. ASBESTOS UPDATE: PI Suits Against RPM's Bondex Unit Remain Stayed ----------------------------------------------------------------- RPM International Inc. in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended February 29, 2012, disclosed that various asbestos-related bodily injury lawsuits filed in various state courts against its subsidiary Bondex International, Inc., and its parent, Specialty Products Holding Corp., remain stayed. These cases generally seek unspecified damages for asbestos-related diseases based on alleged exposures to asbestos-containing products. On May 31, 2010, Bondex and its parent, SPHC, filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the U.S. Bankruptcy Court for the District of Delaware. SPHC is the parent company of Bondex and is also the parent company for various operating companies that are not part of the reorganization filing, including Chemical Specialties Manufacturing Corp.; Day-Glo Color Corp.; Dryvit Holdings, Inc.; Guardian Protection Products Inc.; Kop-Coat Inc.; TCI, Inc. and RPM Wood Finishes Group, Inc. SPHC and Bondex took this action to permanently and comprehensively resolve all pending and future asbestos-related liability claims associated with Bondex and SPHC- related products. As a result of the filing, all Bondex and SPHC asbestos personal injury lawsuits have been stayed due to the imposition of an automatic stay applicable in bankruptcy cases. In addition, at the request of SPHC and Bondex, the Bankruptcy Court has entered orders staying all claims against RPM International Inc. and its affiliates that are derivative of the asbestos claims against SPHC and Bondex, with the exception of certain cases. Through the Chapter 11 proceedings, the filing entities intend ultimately to establish a trust in accordance with section 524(g) of the Bankruptcy Code and seek the imposition of a channeling injunction that will direct all future SPHC-related and Bondex- related claims to the trust. It is anticipated that the trust will compensate claims at appropriate values established by the trust documents and approved by the bankruptcy court. At this time, it is not possible to predict how long the proceedings will last, the form of any ultimate resolution or when an ultimate resolution might occur. Prior to the bankruptcy filing, the filing entities had engaged in a strategy of litigating asbestos-related products liability claims brought against them. Claims paid during the year ended May 31, 2010, prior to the bankruptcy filing, were $92.6 million, which included defense-related payments during the year of $42.6 million. With the exception of the appeal bond satisfied during the quarter and the potential payment, no claims have been paid since the bankruptcy filing and it is not contemplated that any claims will be paid until a plan of reorganization is confirmed and an asbestos trust is established and operating. RPM International Inc., together with its subsidiaries, manufactures, markets, and sells various specialty chemical products to industrial and consumer markets worldwide. ASBESTOS UPDATE: GenCorp. Has 146 Pending Claims at Feb. 29 ----------------------------------------------------------- GenCorp Inc. in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended February 29, 2012, discloses that it has 146 pending asbestos claims. 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 February 29, 2012. 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. Claims filed as of November 30, 2011 146 Claims filed 3 Claims tendered 1 Claims dismissed 2 Claims pending as of February 29, 2012 146 Legal and administrative fees for the asbestos cases for the first quarter of fiscal 2012 were $0.1 million. GenCorp Inc. is a manufacturer of aerospace and defense products and systems with a real estate segment that includes activities related to the re-zoning, entitlement, sale, and leasing of the Company's excess real estate assets. ASBESTOS UPDATE: PI Suit in Ohio Remains Inactive Against Chase --------------------------------------------------------------- Chase Corporation is one of over 100 defendants in a lawsuit pending in Ohio which alleges personal injury from exposure to asbestos contained in certain Chase products. The case is captioned Marie Lou Scott, Executrix of the Estate of James T. Scott v. A-Best Products, et al., No. 312901 in the Court of Common Pleas for Cuyahoga County, Ohio. The plaintiff in the case issued discovery requests to Chase in August 2005, to which Chase timely responded in September 2005. The trial had initially been scheduled to begin on April 30, 2007. However, that date had been postponed and no new trial date has been set. As of February 2012, there have been no new developments as this Ohio lawsuit has been inactive with respect to Chase, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended February 29, 2012. Chase Corp., together with its subsidiaries, engages in the manufacture of protective materials for various applications. The company operates in two segments, Industrial Materials and Construction Materials. ASBESTOS UPDATE: Chase Corp. Still in Discovery in "Jansen" Suit ---------------------------------------------------------------- Chase Corporation was named as one of the defendants in a complaint filed on June 25, 2009, in a lawsuit captioned Lois Jansen, Individually and as Special Administrator of the Estate of Thomas Jansen v. Beazer East, Inc., et al., No: 09-CV-6248 in the Milwaukee County (Wisconsin) Circuit Court. The plaintiff alleges that her husband suffered and died from malignant mesothelioma resulting from exposure to asbestos in his workplace. The plaintiff has sued seven alleged manufacturers or distributors of asbestos-containing products, including Royston Laboratories (formerly an independent company and now owned by Chase Corporation). Chase has filed an answer to the claim denying the material allegations in the complaint. The parties are currently engaged in discovery, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended February 29, 2012. Chase Corp., together with its subsidiaries, engages in the manufacture of protective materials for various applications. The company operates in two segments, Industrial Materials and Construction Materials. ASBESTOS UPDATE: Union Pacific's Liability Was $145MM at March 31 ----------------------------------------------------------------- Union Pacific Corporation disclosed in its Form 10-Q filing with the U.S. Securities and Commission for the quarterly period ended March 31, 2012, that it had an asbestos-related liability of $145,000,000. Union Pacific Corporation is a defendant in a number of lawsuits in which current and former employees and other parties allege exposure to asbestos. The Company's asbestos-related liability activity was: For the Three Months Ended March 31, 2012 2011 ------------------------------------ Beginning balance $147,000,000 $162,000,000 Accruals - - Payments (2,000,000) (2,000,000) Ending balance at March 31 $145,000,000 $160,000,000 Current portion, ending balance at March 31 $9,000,000 $11,000,000 The Company states: "We have insurance coverage for a portion of the costs incurred to resolve asbestos-related claims, and we have recognized an asset for estimated insurance recoveries at March 31, 2012, and December 31, 2011. "We believe that our estimates of liability for asbestos-related claims and insurance recoveries are reasonable and probable. The amounts recorded for asbestos-related liabilities and related insurance recoveries were based on currently known facts. However, future events, such as the number of new claims filed each year, average settlement costs, and insurance coverage issues, could cause the actual costs and insurance recoveries to be higher or lower than the projected amounts. Estimates also may vary in the future if strategies, activities, and outcomes of asbestos litigation materially change; federal and state laws governing asbestos litigation increase or decrease the probability or amount of compensation of claimants; and there are material changes with respect to payments made to claimants by other defendants." Union Pacific Corporation (UPC) owns transportation companies. Its principal operating company, Union Pacific Railroad Company, links 23 states in the western 66% of the country. Union Pacific Railroad Company's business mix includes agricultural products, automotive, chemicals, energy, industrial products and intermodal. Union Pacific Railroad Company connects with Canada's rail systems and is the railroad serving six gateways to Mexico. Union Pacific Railroad Company (UPRR) is a Class I railroad operating in the United States. ASBESTOS UPDATE: CSX Corp. Had $64 Million Reserves at March 30 --------------------------------------------------------------- CSX Corporation disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 30, 2012, that it had $64 million asbestos reserves at March 30, 2012. The Company states: "Occupational claims arise from allegations of exposures to certain materials in the workplace, such as solvents, soaps, chemicals (collectively referred to as "irritants") and diesel fuels (like exhaust fumes) or allegations of chronic physical injuries resulting from work conditions, such as repetitive stress injuries, carpal tunnel syndrome and hearing loss. The Company is also party to a number of asbestos claims by current or former employees alleging exposure to asbestos in the workplace. "An analysis of occupational claims is performed quarterly by an independent third-party actuarial firm and reviewed by management. Management performs a quarterly review of asserted asbestos claims, and an analysis is performed annually by an independent third-party specialist and reviewed by management. The objective of the occupational and asbestos claims analyses performed by the third-party actuarial firm and specialist (the "third-party specialists") is to determine the number of incurred but not reported ("IBNR") claims. The third party specialists analyze CSXT's historical claim filings, settlement amounts, and dismissal rates to determine future anticipated claim filing rates and average settlement values for occupational and asbestos claims reserves. The potentially exposed population is estimated by using CSX's employment records and industry data. From this analysis, the third-party specialists provide an estimate of the IBNR claims liability." CSX Corporation, and together with its subsidiaries, based in Jacksonville, Florida, is one of the nation's leading transportation companies. The Company provides rail-based transportation services including traditional rail service and the transport of intermodal containers and trailers. ASBESTOS UPDATE: Travelers Net Reserves Were $2.38BB at March 31 ---------------------------------------------------------------- The Travelers Companies, Inc., disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012, that net asbestos paid losses in the first three months of 2012 were $55 million, compared with $46 million in the same period of 2011. Net asbestos reserves were $2.38 billion at March 31, 2012, compared with $2.50 billion at March 31, 2011. The Travelers Companies, Inc., through its subsidiaries, provides various commercial and personal property and casualty insurance products and services to businesses, government units, associations, and individuals primarily in the United States. ASBESTOS UPDATE: Travelers Continues to Defend Lawsuits & Claims ---------------------------------------------------------------- The Travelers Companies, Inc., disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012, that it continues to defend asbestos- related litigation. In the ordinary course of its insurance business, the Company receives claims for insurance arising under policies issued by the Company asserting alleged injuries and damages from asbestos- and environmental-related exposures that are the subject of related coverage litigation. The Company is defending asbestos- and environmental-related litigation vigorously and believes that it has meritorious defenses; however, the outcomes of these disputes are uncertain. In this regard, the Company employs dedicated specialists and aggressive resolution strategies to manage asbestos and environmental loss exposure, including settling litigation under appropriate circumstances. In October 2001 and April 2002, two purported class action suits (Wise v. Travelers and Meninger v. Travelers) were filed against Travelers Property Casualty Corp. (TPC) and other insurers (not including The St. Paul Companies, Inc. (SPC)) in state court in West Virginia. These and other cases subsequently filed in West Virginia were consolidated into a single proceeding in the Circuit Court of Kanawha County, West Virginia. The plaintiffs allege that the insurer defendants engaged in unfair trade practices in violation of state statutes by inappropriately handling and settling asbestos claims. The plaintiffs seek to reopen large numbers of settled asbestos claims and to impose liability for damages, including punitive damages, directly on insurers. Similar lawsuits alleging inappropriate handling and settling of asbestos claims were filed in Massachusetts and Hawaii state courts. These suits are collectively referred to as the Statutory and Hawaii Actions. In March 2002, the plaintiffs in consolidated asbestos actions pending before a mass tort panel of judges in West Virginia state court amended their complaint to include TPC as a defendant, alleging that TPC and other insurers breached alleged duties to certain users of asbestos products. The plaintiffs seek damages, including punitive damages. Lawsuits seeking similar relief and raising similar allegations, primarily violations of purported common law duties to third parties, have also been asserted in various state courts against TPC and SPC. The claims asserted in these suits are collectively referred to as the Common Law Claims. The federal bankruptcy court that had presided over the bankruptcy of TPC's former policyholder Johns-Manville Corporation issued a temporary injunction prohibiting the prosecution of the Statutory Actions (but not the Hawaii Actions), the Common Law Claims and an additional set of cases filed in various state courts in Texas and Ohio, and enjoining certain attorneys from filing any further lawsuits against TPC based on similar allegations. Notwithstanding the injunction, additional common law claims were filed against TPC. In November 2003, the parties reached a settlement of the Statutory and Hawaii Actions. This settlement includes a lump-sum payment of up to $412 million by TPC, subject to a number of significant contingencies. In May 2004, the parties reached a settlement resolving substantially all pending and similar future Common Law Claims against TPC. This settlement requires a payment of up to $90 million by TPC, subject to a number of significant contingencies. Among the contingencies for each of these settlements is a final order of the bankruptcy court clarifying that all of these claims, and similar future asbestos-related claims against TPC, are barred by prior orders entered by the bankruptcy court ("the 1986 Orders"). On August 17, 2004, the bankruptcy court entered an order approving the settlements and clarifying that the 1986 Orders barred the pending Statutory and Hawaii Actions and substantially all Common Law Claims pending against TPC ("the Clarifying Order"). The Clarifying Order also applies to similar direct action claims that may be filed in the future. On March 29, 2006, the U.S. District Court for the Southern District of New York substantially affirmed the Clarifying Order while vacating that portion of the order that required all future direct actions against TPC to first be approved by the bankruptcy court before proceeding in state or federal court. Various parties appealed the district court's March 29, 2006 ruling to the U.S. Court of Appeals for the Second Circuit. On February 15, 2008, the Second Circuit issued an opinion vacating on jurisdictional grounds the District Court's approval of the Clarifying Order. On February 29, 2008, TPC and certain other parties to the appeals filed petitions for rehearing and/or rehearing en banc, requesting reinstatement of the district court's judgment, which were denied. TPC and certain other parties filed Petitions for Writ of Certiorari in the United States Supreme Court seeking review of the Second Circuit's decision, and on December 12, 2008, the Petitions were granted. On June 18, 2009, the Supreme Court ruled in favor of TPC, reversing the Second Circuit's February 15, 2008 decision, finding, among other things, that the 1986 Orders are final and generally bar the Statutory and Hawaii actions and substantially all Common Law Claims against TPC. Further, the Supreme Court ruled that the bankruptcy court had jurisdiction to issue the Clarifying Order. However, since the Second Circuit had not ruled on certain additional issues, principally related to procedural matters and the adequacy of notice provided to certain parties, the Supreme Court remanded the case to the Second Circuit for further proceedings on those specific issues. On October 21, 2009, all but one of the objectors to the Clarifying Order requested that the Second Circuit dismiss their appeal of the order approving the settlement, and that request was granted. On March 22, 2010, the Second Circuit issued an opinion in which it found that the notice of the 1986 Orders provided to the remaining objector was insufficient to bar contribution claims by that objector against TPC. On April 5, 2010, TPC filed a Petition for Rehearing and Rehearing En Banc with the Second Circuit, requesting further review of its March 22, 2010 opinion, which was denied on May 25, 2010. On August 18, 2010, TPC filed a Petition for Writ of Certiorari in the United States Supreme Court seeking review of the Second Circuit's March 22, 2010 opinion, and a Petition for a Writ of Mandamus seeking an order from the Supreme Court requiring the Second Circuit to comply with the Supreme Court's June 18, 2009 ruling in TPC's favor. The Supreme Court denied the Petitions on November 29, 2010. The plaintiffs in the Statutory and Hawaii actions and the Common Law Claims actions filed Motions to Compel with the bankruptcy court on September 2, 2010 and September 3, 2010, respectively, arguing that all conditions precedent to the settlements have been met and seeking to require TPC to pay the settlement amounts. On September 30, 2010, TPC filed an Opposition to the plaintiffs' Motions to Compel on the grounds that the conditions precedent to the settlements, principally the requirement that all contribution claims be barred, have not been met in light of the Second Circuit's March 22, 2010 opinion. On December 16, 2010, the bankruptcy court granted the plaintiffs' motions and ruled that TPC was required to fund the settlements. On January 20, 2011, the bankruptcy court entered judgment in accordance with its December 16, 2010 ruling and ordered TPC to pay the settlement amounts plus prejudgment interest. On January 21, 2011, TPC filed an appeal with the U.S. District Court for the Southern District of New York from the bankruptcy court's January 20, 2011 judgment. On January 24, 2011, certain of the plaintiffs in the Common Law Claims actions appealed that portion of the bankruptcy court's January 20, 2011 judgment that denied their request for an order of contempt and for sanctions. On March 1, 2012, the district court ruled in TPC's favor and reversed the bankruptcy court, finding that the conditions to the settlements had not been met, and that TPC is not obligated to pay the settlement amounts. The district court also upheld the bankruptcy court's order denying the plaintiffs' motion for an order of contempt and for sanctions. The district court further ruled that, since TPC is not obligated to go forward with the settlements, it was unnecessary to address the issue of pre- judgment interest. The plaintiffs have appealed the district court's March 1, 2012 decision to the Second Circuit Court of Appeals. SPC, which is not covered by the Manville bankruptcy court rulings or the settlements, is a party to pending direct action cases in Texas state court asserting common law claims. All such cases that are still pending and in which SPC has been served are currently on the inactive docket in Texas state court. If any of those cases becomes active, SPC intends to litigate those cases vigorously. SPC was previously a defendant in similar direct actions in Ohio state court. Those actions have all been dismissed following favorable rulings by Ohio trial and appellate courts. From time to time, SPC and/or its subsidiaries have been named in individual direct actions in other jurisdictions. The Travelers Companies, Inc., through its subsidiaries, provides various commercial and personal property and casualty insurance products and services to businesses, government units, associations, and individuals primarily in the United States. ASBESTOS UPDATE: Honeywell Had $1.7BB Liability at March 31 ----------------------------------------------------------- Like many other industrial companies, Honeywell International Inc. is a defendant in personal injury actions related to asbestos. The Company did not mine or produce asbestos, nor did it make or sell insulation products or other construction materials that have been identified as the primary cause of asbestos related disease in the vast majority of claimants. The Company states: "Honeywell's predecessors owned North American Refractories Company (NARCO) from 1979 to 1986. NARCO produced refractory products (bricks and cement used in high temperature applications). We sold the NARCO business in 1986 and agreed to indemnify NARCO with respect to personal injury claims for products that had been discontinued prior to the sale (as defined in the sale agreement). NARCO retained all liability for all other claims. NARCO and/or Honeywell are defendants in asbestos personal injury cases asserting claims based upon alleged exposure to NARCO asbestos-containing products. Claimants consist largely of individuals who allege exposure to NARCO asbestos-containing refractory products in an occupational setting. These claims, and the filing of subsequent claims, have been stayed continuously since January 4, 2002, the date on which NARCO sought bankruptcy protection. "Honeywell's Bendix friction materials (Bendix) business manufactured automotive brake parts that contained chrysotile asbestos in an encapsulated form. Claimants consist largely of individuals who allege exposure to asbestos from brakes from either performing or being in the vicinity of individuals who performed brake replacements." At March 31, 2012, Bendix disclosed $624 million asbestos-related liabilities while NARCO had $1,123 million, according to Honeywell's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012. Honeywell International Inc. is a diversified technology and manufacturing company, serving customers worldwide with aerospace products and services, control, sensing and security technologies for buildings, homes and industry, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, process technology for refining and petrochemicals, and energy efficient products and solutions for homes, business and transportation. ASBESTOS UPDATE: Reuters Reviews Sudden Rise of Mesothelioma Suits ------------------------------------------------------------------ Reuters reports that as anyone in the U.S. with a television or Internet connection probably knows, lawyers want you if you've been exposed to asbestos, and they're paying to get you. At one point earlier this year, 15 of the 100 most expensive keyword search phrases for click-through ads on Google contained the word "mesothelioma", the deadly cancer caused by asbestos exposure. The single most expensive phrase, online marketing firm SpyFu reported, was "Florida mesothelioma lawyers," at $177.74 per click. The hard sell reflects a troubling truth: Half a century after the first wave of lawsuits were filed for illnesses linked to exposure to asbestos and 40 years after new regulation sharply curtailed use of the insulating and fire-resistant mineral, the asbestos- litigation business is booming. Some of the country's biggest and best-known law firms -- many of them handling asbestos cases almost exclusively -- say the number of lawsuits filed annually, after falling off from a peak, has picked up in recent years. More important, they say, is that payouts for plaintiffs who win their cases have soared. "It's easy to see why they're buying time on CNN and the like. All you need to get is a couple of claims in to make that commercial buy worth the money," says Marc Mayerson -- mmayerson@orrick.com -- a litigator with the Orrick law firm in Washington and a professor of insurance law at George Washington University, who has represented defendants in asbestos-related cases since the 1980s. No central registry keeps track of asbestos lawsuits filed yearly or their outcomes. A tabulation of jury verdicts and settlements, based on an average of all asbestos-related lawsuits reported in Westlaw Journal Asbestos, a Thomson Reuters publication, found that the average award was $6.3-million in 2009, $17.6-million in 2010 and $10.5-million in 2011 -- amounts much greater than what lawyers say was the norm more than a decade earlier. Clearly, mesothelioma and other asbestos-related payouts persist at levels companies and their insurers never expected. Insurers have been adding hundreds of millions of dollars to their asbestos-claim reserves. Travelers Cos, in its annual report for 2011, echoed its peers when it cited a "high degree of uncertainty with respect to future exposure from asbestos claims". Meanwhile, the dozens of trusts set up by companies forced into bankruptcy by asbestos liabilities are facing such heavy claims that many are paying only a few cents on the dollar. Some have had to suspend settlements. That has created inequality among victims. Some doctors and lawyers attribute the recent rise in asbestos suits to the unexpected emergence of "asbestos wives and daughters," women exposed to the mineral by male relatives who worked in asbestos-heavy industries. David Sugarbaker, a thoracic surgeon at Brigham & Women's Hospital in Boston who is highly regarded among mesothelioma patient groups, says he's been seeing more women among new patients every year, but "nobody has been able to quite pin it down". No hard data show that the incidence of mesothelioma among women has risen significantly. Indeed, the incidence of the disease overall remained largely flat at about 1 person per 100,000 from 1980 to 2008, while the rate for women held steady at roughly one- sixth that of men, according to the National Cancer Institute. No matter who is doing the suing, lawyers say plaintiffs are increasingly targeting a new set of deep-pocketed "tertiary defendants" -- companies that used asbestos products manufactured by others or were otherwise indirectly linked to asbestos. Such companies can now "find themselves in the midst of a lawsuit where the jury verdicts in the plaintiff-favorable jurisdictions are probably averaging $15 million to $25 million each," Orrick's Mayerson says. Nearly everyone involved in asbestos litigation agrees on one dismaying fact: Most plaintiffs today are sick. About a decade ago, "unimpaired" plaintiffs -- people who had some asbestos exposure but weren't sick and had no evidence they were getting sick -- accounted for "literally hundreds of thousands of claims," says Mike Angelides -- mangelides@simmonsfirm.com -- managing partner of the Simmons Law Firm, which by its own estimate accounts for 20% of all asbestos-related lawsuits filed in the U.S. every year. Matt Bergman -- MBergman@shulmanrogers.com -- a Seattle attorney who specializes in asbestos litigation, says the number of lawsuits probably peaked in 2005, when he estimates 16,000 cases were filed, most from people without any illness. As courts began to take a dim view of such suits, lawyers focused on sick plaintiffs. Now, Bergman says, only about 2,000 new cases are filed each year, most of them to do with mesothelioma. "I think the system works best when the people who are bringing the cases are the people suffering the most," he says. The Institute for Legal Reform, an arm of the U.S. Chamber of Commerce that has been a vehement critic of asbestos litigation, recognizes the shift. In recent years, "there were more cases with more people that were more severely impaired, and the numbers on those claims went up," says Lisa Rickard, president of the institute. Angelides says his firm estimates the number of new cases filed a year at around 1,800, way down from the peak but up from more recent years. "Everybody wishes these claims would go down," he says, "but it's not time yet." Mesothelioma is a particularly lethal cancer. It arises in the delicate tissue that lines body cavities, most often around the lungs, but also in the abdomen and elsewhere. Years of research have shown that exposure to asbestos -- defined roughly as two weeks of constant contact, usually in the air in a workplace -- is a primary cause of mesothelioma. (Exposure also causes asbestosis, a chronic, potentially life-shortening lung disease.) Once exposed, a person has a 1-in-20 chance of developing mesothelioma. The average patient is dead within two years of diagnosis, and more than 90% are dead within five years, according to the National Cancer Institute. The reason people who were exposed in the 1960s and 1970s are still being diagnosed is mesothelioma's long latency period -- the time between exposure and manifestation of disease -- of between 30 and 50 years. Thus people who worked in tainted industrial settings in the 1960s are still getting ill, as are some family members. Heather Von St. James, a resident of St. Paul, Minnesota, in her early 40s, is an asbestos daughter. Many nights while growing up, she says, she greeted her father with a hug at the door when he returned home from his job sanding drywall, a fine white dust powdering his jacket. She often put on that jacket before running outside to feed her pet rabbits. In 2005, just after the birth of her daughter, she was diagnosed with mesothelioma. She immediately remembered those lawyers' TV ads she had seen late at night. "I called them at 1 o'clock in the morning when I got the diagnosis because I thought, 'I've got nothing to lose'," she says. To fight her disease, she had to have a lung removed. That left her chronically weak and easily fatigued, unable to care for her daughter or continue working as a hair stylist and salon owner. She considers herself lucky, compared to other mesothelioma victims, but hesitates to describe herself as "cured." The court that heard her lawsuit estimated that the disability caused by her mesothelioma cost her more than $5-million in lost lifetime earnings. "We didn't get $5-million. It can never replace what I lost," says St. James, who is bound by confidentiality agreements not to disclose whom she sued or the precise amount she received. Court records indicate that 3M Co was a defendant -- not one closely associated with the decades- long morass of asbestos litigation. 3M did not respond to a request for comment. Asbestos -- actually a family of half a dozen fibrous minerals -- has been valued since Roman times for its heat-resistant properties. For much of the 20th century it pervaded construction sites, ship and rail yards, and many industrial settings. Canada, Russia and South Africa have been major producers, as was the U.S. Concerns about the health risks of asbestos exposure were raised as early as the 1920s. In a September 1958 memo that plaintiffs lawyers are wont to cite, a National Gypsum executive wrote: "We know that you will never lose sight of the fact that perhaps the greatest hazard in your plant is with men handling asbestos. Because just as certain as death and taxes is the fact that if you inhale asbestos dust you get asbestosis." The first asbestos-related personal-injury claims popped up in federal courts in the 1960s, but asbestos use continued. According to the US Geological Survey, consumption of asbestos in the U.S. peaked in 1973 at 803,000 tons, out of global production of around 4.2-million tons. Within a few years, mounting litigation, as well as scientific evidence linking asbestos to disease, prompted new government and industry regulations on safe handling and use of the mineral. Since 1973, according to the U.S. Geological Survey, U.S. consumption has fallen 99.9%, though global use is down only around 50%. In the ensuing decades, asbestos litigation overwhelmed one company after another. By government estimates, about 100 companies have been forced into bankruptcy proceedings because of asbestos liabilities -- including construction-materials and industrial heavyweights such as Johns Manville (now a part of Berkshire Hathaway), USG and Owens Corning. The US Bankruptcy Code, amended specifically for the purpose, allows a company to put current and future asbestos liabilities in a trust, fund the trust with certain assets, and walk away to start fresh. Trust administrators determine whether a claim is valid and pay out accordingly. Their decisions can be appealed, but generally, trust claims are more open-and-shut than court litigation. Each trust values claims differently. The Johns Manville trust values mesothelioma at $350,000, while the Owens Corning trust values it at $215,000, says Steve Kazan, managing principal at Kazan, McClain, Lyons, Greenwood & Harley in Illinois, who litigated his first asbestos case in 1974 and has kept at it since. None of the trusts, lawyers say, come close to paying what the courts do. The problem for the trusts -- and for claimants -- is that as claims persist, many of the trusts have to pay out cents on the dollar for each valid claim in order to save for future claims. Take the example of the Johns Manville trust. In the 23 years since it started, the Manville Personal Injury Settlement Trust has received more than 878,000 claims -- 10 times the number initially predicted -- and made payments nearing $4.23-billion. The Manville trust's most recent filing with the U.S. Bankruptcy Court in Manhattan shows claims rose 57% in the first nine months of 2011 from a year earlier, to 27,300. Over that time the trust's assets fell more than 12%, to $925.6-million. As a result, the trust is now paying out approved claims at a rate of 7.5 cents on the dollar. A person with an approved $100,000 claim would receive $7,500. The USG trust cut its payout rate to 35 cents on the dollar in April 2010 and lowered it again to 30 cents in November 2010. The NGC Bodily Injury Trust, which handles National Gypsum claims, warned last November that claim filings were running much higher than expected and cut payments to 18 cents on the dollar. Last January, the C.E. Thurston & Sons Asbestos Trust suspended all new settlement offers while it recomputed how much it can afford to pay while retaining enough for the future, the trust said on its website. Reuters sought comment by phone or email from trustees or lawyers for half a dozen asbestos trusts; none responded. Unlike the trusts, the insurance industry thought it had largely solved its asbestos problem through big increases to reserves 10 years ago. It misjudged. "All these insurance companies have dedicated asbestos units, and they're staffed and they're busy," says Larry Reback, an insurance broker with Integro in San Francisco. Last year, when insurers AIG and The Hartford announced additions of $1.3-billion and $290-million, respectively, to their asbestos reserves, the companies blamed tertiary defendants that never anticipated litigation and now are being sued. AIG and Hartford have repeatedly declined to comment on the additions to their reserves. Major oil companies are on the list, as people who were working decades ago challenge what the companies knew about asbestos safety at the time. Automakers are being hit with asbestos lawsuits, too, largely related to the asbestos lining in many vehicle brakes. Just this month a federal appellate court said lawsuits could proceed against drugmaker Pfizer Inc. over asbestos-linked materials a subsidiary made a generation ago. "We strongly dispute" those lawsuits, Pfizer said. In February, Travelers said it put $175-million into its asbestos- claim reserves in 2011, up 25% from 2010, citing more litigation and larger payouts because of those lawsuits. While announcing an increase in its own reserves, MetLife said in August that it saw asbestos-related claims rise 11% in the first half of the year after dropping steadily from 2003 through 2010. In 2009, A.M. Best, the major rater of insurers, raised its estimate of future industry asbestos liabilities to $75-billion from $65-billion. The number may rise again in the next year, mainly because of mesothelioma claims, says Brian O'Larte, an A.M. Best analyst in New Jersey. All told, by its assessment, the industry is about 4% underfunded for the $75-billion in liabilities it faces. Insurers keep assuming, mistakenly, that liabilities will taper, O'Larte says. "Every time they do a ground-up study, they say, 'We got it right this time'." he says. "We don't assume that." ASBESTOS UPDATE: Exposed Fibro Dumping Ground Found at Corio ------------------------------------------------------------ Mandy Squires of The Geelong Advertizer reports an asbestos dumping ground has been discovered on the shores of Corio Bay, next to Geelong's GrainCorp terminal and pier. A Geelong Advertiser investigation has uncovered a section of beach littered with broken pieces of potentially lethal asbestos and a cliff face packed with asbestos sheeting. It appears the suspected asbestos, long buried in the earth near the GrainCorp terminal, has been exposed and broken-up as the cliff has eroded over time. The Environment Protection Authority and City of Greater Geelong will investigate the North Geelong site, after being notified of its existence by the Geelong Advertiser. The Geelong council erected three panels of temporary fencing at the site on May 11 to prevent public access along the shoreline, following pressure from the Geelong Advertiser. Initially the council indicated the site would be fenced-off around May 15. The site can still be accessed from the top of the cliff, where broken pieces of asbestos are also scattered. City of Greater Geelong general manager Gary Van Driel, after learning of the suspected asbestos dump, said council officers had met with EPA representatives. "The EPA has agreed to manage the investigation into the suspected asbestos dumping," he said. "We are currently working with the EPA and the Department of Sustainability and Environment (DSE) to determine who the responsible authority for this site is." A spokesperson for the EPA has confirmed the authority will investigate a site in the Geelong region. Mr. Van Driel said people should stay away from the area. "Asbestos in sheet form is stable and does not present the same risk as loose asbestos, however, we urge people to steer clear of this site until it is cleaned up," he said. The Geelong council said early indications were that the DSE may be the controlling authority for the site. DSE southwest manager of public land services Greg Leece said the department was working with the council "to respond to potential issues on the foreshore at the Geelong GrainCorp pier". The site was "old Port of Geelong land," he said. The EPA stressed it was responsible only for the safe transport and disposal of asbestos. While difficult to access, the section of Corio Quay beach and foreshore covered with broken and exposed asbestos is in close proximity to major North Geelong industries employing hundreds of workers. It is also almost directly below the GrainCorp terminal, where grain is loaded on to trains and ships. The area, at the end of Crowle St., is also popular with fishermen. There is a well-worn walking track leading from the carpark at the top of the cliff to the beach covered in asbestos. When broken, asbestos dust fibers can be carried in the air and, if breathed in, can cause the deadly lung disease mesothelioma, asbestosis or lung cancer. Fisherman Andrew Scardamaglia said he and his eight-year-old son, Adrian, had tried their luck near the GrainCorp pier for the first time on May 10. "First and last time, I won't be back again, that's for sure," he said, after hearing there was a large amount of exposed asbestos just meters away from their chosen fishing spot. Geelong Trades Hall Council secretary Tim Gooden said the asbestos could be a health hazard for people working or fishing nearby. The fact the asbestos was so exposed to the elements was of particular concern, he said. "Each time a piece snaps in half, it releases fibers that can carry on the wind," Mr. Gooden said. "If it's not being disturbed, then fibers are not being released but with erosion and wind damage and any pedestrian traffic, each time anyone walks over it or breaks it, fibers could be released. "In a very exposed area, like a cliff that's subject to erosion, and (with pieces of asbestos) poking out of the ground like that, anything could happen." It was vital the EPA established as soon as possible whether the site contained friable asbestos as well as the visible non-friable roof sheeting, Mr. Gooden said. Friable asbestos, which was "loose and fluffy", was extremely dangerous as it carried easily on the wind, he said. "It would be really good to determine how many years it's (the asbestos) been there, how long it's been exposed and identify where it came from," he said. "The clean-up is going to be the costly bit. The EPA can order the landowner to clean it up if they can't find the perpetrator." GrainCorp issued a statement on May 10 saying the discovery of a suspected asbestos dump near its terminal and pier had not impacted on the company's operations. "Safety is always our first priority," the statement said. "In instances like this we naturally comply with any requirements and advice from the appropriate authorities. ASBESTOS UPDATE: Idaho Labor Dept Building Evacuated ---------------------------------------------------- Zach Stotland of KTVB reports that the Idaho Department of Labor's administration building is closed until further notice because of asbestos. Spokesman Bob Fick says work crews were renovating the geothermal system when they ran into some asbestos on Thursday, May 10, at the downtown Boise building. He says no one knew it was there. When employees at the labor department came to work Friday morning, they noticed a white powder. That powder tested positive for asbestos, and the building was evacuated. Fick says they are getting tests done during the weekend on air and surface contamination. Employees can't go back into the building until the results are in. This closure will not disrupt unemployment payments, and all other labor department offices are open. ASBESTOS UPDATE: NSW's Decision Based On Pact With James Hardie --------------------------------------------------------------- Anna Party of Stock & Land reports that the NSW government has rejected the NSW Law Reform Commission's recommendations to make it easier for families of asbestos victims to claim compensation. The Attorney-General, Greg Smith, said on May 11 the government had "reluctantly" decided it would not implement them. The commission recommended removing a legal precedent, known as the Strikwerda principle, which means any damages paid to a victim for pain and suffering are deducted from a later claim by dependents. It had also recommended giving families up to 12 months after the death to claim for damages for non-economic loss. The Commission said this would allow families to recover damages where a victim failed to start an action in the Dust Diseases Tribunal before their death. Mr. Smith said the government's decision to reject the changes was based on legal and actuarial advice. Adopting the Commission's recommendations would breach an agreement the Carr Government signed in 2006 with James Hardie. As part of that agreement, the government said it would not change laws to increase or decrease damages for dust diseases. The agreement, which runs for another 30 years, provides AU$1.5 billion in compensation funding to asbestos victims from James Hardie. "The Government appreciates and regrets that this response will disappoint some asbestos victims and their families," Mr. Smith said. "However, we hope that they will understand why the Government needs to consider the importance long-term of providing certainty of continued compensation to all asbestos victims, both current and future generations." Tanya Segelov, partner Turner Freeman Lawyers in Sydney, which has represented victims of asbestos disease said the Commission's recommendations would only affect a small number of claims. She said the government's own figures showed the change would add between AU$28 million to AU$162 million over a 40-year period to James Hardies' costs. "But it would be worth $300,000 to $500,000 for each family," she said. Unions NSW described the government's decision as gutless, pointing out that three other states -- WA, Victoria and South Australia -- had adopted similar recommendations. Greens MP and justice spokesman David Shoebridge said the O'Farrell government could easily try to renegotiate an agreement with James Hardie to make it fairer for families of asbestos victims. "The law has been reformed in three other states to stop asbestos companies from using this defense, and it is simply unacceptable that NSW fails to act," he said. Shadow Attorney General Paul Lynch accused the O'Farrell government of lacking courage in trying to avoid a fight with James Hardie. "There are a significant number of victims of asbestos who don't need to proceed against James Hardies, but against other defendants. They are also being penalized by this decision," he said. Opposition Leader John Robertson said the O'Farrell Government had "reached a new low this decision not to provide fairer compensation to asbestos victims and their families." ASBESTOS UPDATE: Abbey Theatre Shows Displaced Amid Abatement Work ------------------------------------------------------------------ Steven Carroll of The Irish Times reports that the auditorium in Dublin's Abbey Theatre is to close for nine weeks this summer while asbestos is removed. A run of Sean O'Casey's The Plough and the Stars will be transferred to the O'Reilly Theatre on Great Denmark Street from July 26 to Sept. 15 while the work is carried out. Other parts of the theatre are to remain open for business during the operation, with the auditorium due to reopen in time for the Dublin Theatre Festival. The work is expected to cost some EUR450,000 and will be paid for by the Department of Arts, Heritage and Gaeltacht. The Abbey Theatre said the asbestos posed no health risk to its staff or patrons and that weekly air-quality tests had shown this to be the case. A spokeswoman for the Abbey said the asbestos was discovered during an inspection in January and that it had been liaising with the Health and Safety Authority about the matter since then. "We have opted to fully remove the asbestos for the long-term safety of our staff because theatre involves a lot of technical work and staff may be required to work in the areas where asbestos was identified," she said. The spokeswoman said, despite the relocation, audiences should expect the show to be produced to the same standard as any Abbey Theatre production. She said the stage at the O'Reilly Theatre was of a similar scale to that in the Abbey but that minor modifications would be required to the show, which is due to tour the UK and Ireland, as the O'Reilly did not allow for flying or the use of ropes and pulleys to move props and scenery. ASBESTOS UPDATE: Carcinogens Close JFK School in Saint-Michel ------------------------------------------------------------- CTV Montreal reports that John F. Kennedy High School and Business School in Saint-Michel will be closed May 10 and 11 following the discovery of traces of asbestos. The English Montreal School board made the announcement on the evening of May 9, saying the closure was a precautionary measure while air quality testing is conducted in the building. A press release stated that traces of asbestos were found in two ventilation rooms in the facility around April 18. The material was removed and air quality was tested. The treated rooms were deemed safe. Precautionary tests also took place in other parts of the building, where traces of asbestos were found. Experts have been called to conduct air quality testing in those areas. "Our board has previous experience in dealing with asbestos," says EMSB Chairman Angela Mancini in a press release. "Our staff is vigilant and it is our position not to take any chances once it is discovered. We will be working with Sante Publique and taking every precaution necessary before students and staff are allowed to return to the building." In February, Montreal environmentalist Daniel Green revealed a list of more than 280 public buildings that contain asbestos, and said he felt the government should compile an asbestos registry to provide Quebecers with information about current and past asbestos levels. The EMSB at the time said it had a policy to make that information public. ASBESTOS UPDATE: City Exec Says ALA Benefits Offset Risks --------------------------------------------------------- Peter Kuitenbrouwer, writing for The National Post, reports that residents on Aldwych Avenue and other streets in East York -- who received letters from the city recently warning them to stay indoors and shut windows while the city resurfaces asbestos-laced asphalt (ALA) in front of their homes this spring -- can rest easy, says the City of Toronto. "There is absolutely no health concern in working with this," Peter Noehammer, Toronto's director of transportation services, said on Wednesday, May 9. "We sent out those notes more out of an abundance of caution." Even so, the scene was jarring on Aldwych, a tidy street of detached one and two-storey bungalows, with pink blossoms covering apple trees, on Wednesday. All the workers operating the gargantuan white Wirtgen asphalt grinder, also called a milling machine, which growled eastward, grinding up the pavement and shooting it into a rolling dumptruck, wore white Tyvek hazmat suits and dust masks with lurid purple filters. "It concerns me now because I've been grinding for about 16 years and the suits only came in about five years ago, so what happens to all the streets I ground before I got the mask and the suit?" asked an employee of Furfari Paving who gave the name Ray. Out of 30 streets in East York that Furfari is repaving, seven contain asbestos, he added. Mr. Noehammer said the worker should not fret: in 2008 the city contacted the Ministry of Labour after realizing that some asphalt it was grinding off city streets contained asbestos. The ministry came out and conducted air tests next to the asphalt milling machines, but could not detect an asbestos hazard in the air. "Asbestos fibers become permanently bonded in the asphalt cement," he said. The ministry then promised the city that it would rewrite guidelines so that workers exposed to asphalt containing asbestos would not need to wear protective gear. But until those changes become law, the city requires its contractors to wear hazmat suits and dust masks while recycling asbestos-enhanced asphalt -- but not police redirecting traffic near the affected areas. As a precaution, the city also wets the asphalt before and after the grinding. In fact, the benefits of asbestos in the roads far outweigh the risks, Mr. Noehammer added. "Asbestos fibers were used quite extensively in the 1960s and 1970s as a reinforcing fiber for the asphalt-cement mixture," he said. "It made the asphalt much more durable and less prone to cracking." So durable was the asphalt here that George Ferries, who has lived on Aldwych for 40 years, does not recall the city ever resurfacing his street. "They've patched it and patched it and patched it," Mr. Ferries said. "We've had a couple of sinkholes." The city likes asbestos in asphalt so much that it encourages its contractors to reuse the stuff. "It is fine to recycle the material in the base of the road and dilute the asbestos content to under 0.5%," Mr. Noehammer said. ASBESTOS UPDATE: CL&M Wins GBP290K Payout for Mesothelioma Widow ---------------------------------------------------------------- BBC News Somerset reports that a Somerset woman is to get GBP290,000 in compensation from Bristol Water following her husband's death from cancer caused by his contact with asbestos. David Bean, from Shepton Mallet, had worked for the company as an engineer. He had no protection when visiting pumping stations housing boilers covered with asbestos cement lagging. Bristol Water said "stringent safety measures" had now been introduced for staff working with asbestos. The solicitor for his wife Jean said the money would compensate her for loss of income resulting from his death last year at the age of 73. Solicitor Brigitte Chandler -- brigitte.chandler@clmlaw.co.uk -- at Charles Lucas & Marshall said: "Mr. Bean visited pumping stations all over the western area. They contained large boilers, often the size of houses, which were covered with asbestos cement lagging. Mr. Bean would have been in contact with the asbestos as he walked around the pumping station. "He was never given protective masks or clothing and continued to be exposed to asbestos until he left the company in 1992. Mr. Bean was healthy until September 2010 when he developed chest pains, coughing and breathlessness. He was diagnosed with mesothelioma." Malignant mesothelioma is a form of cancer which affects the thin membrane that lines the chest and abdomen. About 2,400 people are diagnosed with the condition in the UK each year. According to Cancer Research UK, up to 80% of cases of malignant mesothelioma are caused by exposure to asbestos fibers. A spokesman for Bristol Water said: "It is with regret that Mr. Bean, a retired former employee of Bristol Water and its predecessors, who started work with the business in the 1950s has passed away as a consequence of mesothelioma. "Bristol Water's insurers have made a compensation payment as a result of Mr. Bean's historic exposure from asbestos disturbed whilst carrying out his duties. "In modern times, stringent safety measures have been introduced to avoid the risk of hazardous substances such as asbestos being disturbed and inhaled by employees." ASBESTOS UPDATE: Jamestown Seeks Break From Abatement Regulation ---------------------------------------------------------------- Hilary Scott of The Post-Journal reports that New York state asbestos regulations are exacerbating Jamestown's housing surplus problem. After going through a lengthy asbestos remediation process, a damaged house at 23 Center St. was demolished Wednesday, May 9. It's one of the first of many much needed residential demolitions for this year. The number of residences the city will be able to demolish this year is limited, however, due to the high cost of demolition, stemming from regulations. From the prioritized list of 30 properties requiring demolition, the city has the funds to complete 12 to 15 projects. That number is up from the 10 to 12 houses demolished last year. According to Steve Centi, city development director, the burden and additional cost of asbestos remediation and removal hampers the city's ability to resolve or make headway on Jamestown's oversupply of housing due to a decrease in population. Housing surplus is not only just a Jamestown problem, it's a statewide problem, as there has been a reduction in population throughout the entire state, said Centi. "We have issues relating to older housing stock which was built in a point in time when the population was larger," said Centi. "The population has since declined, so we have a surplus of units." The city is attempting to rightsize to get the number of units more in line with the current population. This requires the demolition of vacant, substandard and abandoned residences. Centi said the dilemma on the demolition side is that "it hasn't been easy, it hasn't been cheap and it hasn't been timely." The first step of the demolition process is legal remediation, consisting of first posting the property, determining the owner, taking the owner to court and receiving a court order for a demolition, if the owner doesn't have the ability or willingness to demolish the structure. The city then must start the asbestos identification and removal process. Before demolition of a residence can be started in New York, an asbestos survey must be completed to identify if asbestos is present, and if it is present, the asbestos must be completely removed before demolition. Asbestos is most dangerous when it's in a "friable" form, meaning that the fibers can become airborne. Centi said that a lot of the asbestos found in Jamestown homes isn't in a friable form, but must be removed anyway before demolition. Pennsylvania is not required to go through the asbestos process for any residences with three families or under. The bulk of what the city is demolishing are one and two family homes. According to Centi, the collective cost for a residential demolition in Pennsylvania is approximately $7,100 while the total cost in New York is approximately $23,000. "They can demolish three houses to our one," said Centi. "It puts us at a competitive disadvantage." The city's demolition fund consists of money allocated from the city in the city budget, which is local taxpayer dollars, and grant money from the Community Development Block Grant. This year there is $393,644 in the demolition fund, which is the largest fund the city has seen in a number of years, according to Centi. "We will file a lean against the property in an attempt to recover the funds prior to it going though, for example, the county tax foreclosure process," said Centi. "It's really wishful thinking on my part. The truth is they've already walked away from the physical property, and there is hardly any likelihood that they are going to put up the money to cover the cost of the demolition just to keep ownership interest on a vacant lot." "We'd like to see the state relax the requirements, and we'd like to see the state provide funding that would allow us to do demolitions to get rid of this excess stock," said Centi. "I think you could apply that same type of methodology to any other municipality within the state of New York or probably in the whole North East that has to deal with these same issues." He said the city would benefit if the state just lifted the asbestos regulation for a period of time to offer a window of opportunity for the city to find and utilize city, federal, state and philanthropic funding to rightsize the excess units in a big sweep. There were couple years in a row where the city submitted resolutions from the City Council asking state representatives to remove the onerous asbestos requirements, but nothing ever came of it, he said. Centi explained that the state gets a fee of around $4,000 that is part of that cost for every demolition that's done in the state of New York. "We are going to continue to take people to court and see if they will tear it down on their own dime. If they don't, we will proceed with demolition on those houses that we deem to be public health and safety hazardous," said Centi. "We'll board and secure them, until such time that we have the funding available to remove them from the landscape." "It's just unfortunate that we are doing it at a cost that's three times what it takes to do the same thing in Pennsylvania." ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. 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