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/raid1/www/Hosts/bankrupt/CAR_Public/120525.mbx C L A S S A C T I O N R E P O R T E R Friday, May 25, 2012, Vol. 14, No. 103 Headlines BP PLC: Opt-Outs in Class Action Settlement a Landmine Potential BP PLC: City of Robertsdale Agree to Oil Spill Settlement CASSELS BROCK: Launches Counterclaims Against Law Firms COCA-COLA CO: Sued for Falsely Marketing Simply Orange Products ERNST & YOUNG: NELA Says Class Action Waivers Undermine FLSA NMI RETIREMENT: Retirees Mull Class Action Over Pensions REYNOLDS AMERICAN: Awaits Decision on "Sateriale" Suit Appeal REYNOLDS AMERICAN: JTI's Indemnification Bid Still Pending REYNOLDS AMERICAN: "Collora" Suit vs. Unit Remains Stayed in Mo. REYNOLDS AMERICAN: Continues to Await Decision in "Tatum" Suit REYNOLDS AMERICAN: Continues to Defend 6 Class Suits in Canada REYNOLDS AMERICAN: Continues to Defend "Lights" Class Suits REYNOLDS AMERICAN: "Howard" Suit Remains Stayed in Illinois REYNOLDS AMERICAN: "Jones" Suit Remains Pending in Missouri REYNOLDS AMERICAN: "Parsons" Class Suit Remains Stayed in W.V. REYNOLDS AMERICAN: Payment Bid Hearing in "Scott" Suit on June 18 REYNOLDS AMERICAN: "Thompson" Class Suit vs. Unit Remains Stayed REYNOLDS AMERICAN: Trial in "Brown" Class Suit Set for October 5 REYNOLDS AMERICAN: "Turner" Suit vs. RJR Remains Pending in Ill. REYNOLDS AMERICAN: Unit Got Favorable Judgment in "Smith" Suit REYNOLDS AMERICAN: "Young" Class Suit vs. Unit Remains Stayed RIDGEWOOD WATER: Chances for Rate Hike Suit Settlement Slim SANTA MONICA: MALDEF Files Class Suit Over Wage Violations SERVICE CORP: Antitrust Suit Dismissal Appeal Remains Pending SERVICE CORP: Appeal in "Garcia" Class Suit Remains Pending SERVICE CORP: Awaits Ruling on Class Cert. Bid in "Sands" Suit SERVICE CORP: Defends Wage and Hour Suits in Various States SERVICE CORP: Faces "Baio" Class Action Suit in Florida SERVICE CORP: Faces "Zinn" Class Action Suit in Florida SINCLAIR IMPORTS: Recalls Threadless Carbon Bike Handlebar Stem SWIFT TRANSPORTATION: Black Truck Drivers Lose Class Cert. Bid TEMPUR-PEDIC: Jacobs' Plea for En Banc Review Remains Pending TENET HEALTH: Faces Class Action Over Undisclosed Hospital Fees TIM W.E. SGPS: Still Awaits Order on Bid to Dismiss Suit v. Unit TIME WARNER: Appeal From Dismissal of Set-Top Cable MDL Pending TIME WARNER: 2nd Cir. Appeal in "Swinegar" Suit Remains Pending TIME WARNER: Appeal From "Fink" Suit Dismissal Remains Pending TIME WARNER: "Brantley" Plaintiffs Ask for En Banc Rehearing TIME WARNER: Continues to Defend "Downs" Class Suit vs. Insight TYCO INTERNATIONAL: Settled Colorado Class Suit in April 2012 TYCO INTERNATIONAL: Unit Faces TCPA Violations Class Suits UNITED HEALTHCARE: Sued for Denying Mental Health Coverage VELTI PLC: Unit, TrafficMarketplace.com in Talks Over iPhone Suit ZIMMER HOLDINGS: 7th Cir. Affirms Durom Class Action Dismissal * Accounting-Related Securities Class Actions Up in 2011 * N.J. Committee Unanimously Approves Class Action Bill Asbestos Litigation ASBESTOS UPDATE: Del. Ct. Junks Crane Co.'s Motion for Reargument ASBESTOS UPDATE: NY Court Refuses to Junk Suit v. Crane Co. ASBESTOS UPDATE: Court Junks Bid to File Appendix in Bernard Suit ASBESTOS UPDATE: Court Moves Time to Perfect Appeal in Dummitt ASBESTOS UPDATE: Del. Ct. Junks Portions of Suit v. York Int'l. ASBESTOS UPDATE: NY Ct. Affirms Discharge of Worker's Claim ASBESTOS UPDATE: La. Ct. Reverses Judgment in Personal Injury Case ASBESTOS UPDATE: Mesothelioma Widow Calls For More Safety At Work ASBESTOS UPDATE: Appalling Living Conditions at Wittenoom Told ASBESTOS UPDATE: Abatement and Demolition at Kensington Resume ASBESTOS UPDATE: Oakland VA Service Fails Get Flak From Congress ASBESTOS UPDATE: Demolition of Old Peru Power Station Begins ASBESTOS UPDATE: Ex-Mayor Diagnosed With Pulmonary Fibrosis Dies ASBESTOS UPDATE: Redmond Street Closed for Decontamination ASBESTOS UPDATE: Coffs Harbour Waste Facility Faces EPA Charges ASBESTOS UPDATE: NOB Bill Crafted to Effect Upon Governor's Nod ASBESTOS UPDATE: Contractor That Found HazMat Faces $4,200 Fine ASBESTOS UPDATE: JFK at St. Michel's Extends Temporary Shutdown ASBESTOS UPDATE: JFK School Closed For Rest of School Year ASBESTOS UPDATE: Plan for Toxic Dump In Christchurch Irks Citizens ASBESTOS UPDATE: Oak Ridge Workers File Claim In Roane Court ASBESTOS UPDATE: Binghamton U Campus-Wide Abatement Underway ASBESTOS UPDATE: West Perth Residents Warned of Toxins From Blaze ASBESTOS UPDATE: Asbestos Complicates Earthquake Recovery Laws ASBESTOS UPDATE: Ex-Developer Sentenced to 3 years in Probation ASBESTOS UPDATE: Geelong Admits Knowledge of Beach Contaminants ASBESTOS UPDATE: Thieves Stuck in Contaminated Building For 5 Hrs ASBESTOS UPDATE: Study Links Size of Fibers to Cancer Occurrences ASBESTOS UPDATE: Health Officer Says Fibro In Drinking Water Is OK ASBESTOS UPDATE: East Greenwich Plan Deadline Moved Due to Fibro ASBESTOS UPDATE: Long Island School Abatement Irks Parents ASBESTOS UPDATE: Christchurch Residents Win On Toxic Waste Issue ASBESTOS UPDATE: Battin Building Remediation Costs Exceed Value ASBESTOS UPDATE: Preliminaries on Geelong Clean-Up Plan Underway ASBESTOS UPDATE: Bill to Have Employers Reimburse NHS Proposed ASBESTOS UPDATE: ACECO Workers Walk Out From Hazardous Conditions ASBESTOS UPDATE: Office of Compliance to Close AOC Workers' Case ASBESTOS UPDATE: Hearing on Weirton Steel Property Case Starts ASBESTOS UPDATE: Chevy Chase Fire's Toxic Rubble Displaces Tenants ASBESTOS UPDATE: Anxious Christchurch Councilors Forced U-Turn ASBESTOS UPDATE: Toxic Debris in Kensett Awaits Official Decision ASBESTOS UPDATE: Boston Building Owner Admits Environmental Crimes ASBESTOS UPDATE: Celebrity Dies of Lung Cancer Due to Toxic Dust ASBESTOS UPDATE: National Restorations Systems Faces $19,050 Fine ASBESTOS UPDATE: Carcinogenic Debris Appear at Fyansford Property ASBESTOS UPDATE: Manly Vale Park Cleared of Illegally Dumped Fibro ASBESTOS UPDATE: Test Clears Marshalltown Fire Debris of Hazards ASBESTOS UPDATE: Truck Full of Hazardous Materials Hits Bridge ASBESTOS UPDATE: Abatement Underway For Pacific Highway Upgrade ASBESTOS UPDATE: UAE Still Needs to Enforce Anti-Asbestos Rules ASBESTOS UPDATE: Chicopee Council Votes Out Library Abatement Plan ASBESTOS UPDATE: B.F. Goodrich and Guard-Line Face Lawsuit ASBESTOS UPDATE: York Carriageworks Employee Dies of Mesothelioma ASBESTOS UPDATE: Spring Valley Illegal Renovation Led to Exposure ASBESTOS UPDATE: Remediation Works Underway in Punta Gorda School ASBESTOS UPDATE: ACT Spends More For Extra Abatement Requirements ASBESTOS UPDATE: Benian Australia and Brian Bentley Face Penalty ASBESTOS UPDATE: Hepa Filter Containing Toxic Dust Burglarized ASBESTOS UPDATE: Tax Dispute Win Pulls James Hardie From The Red ASBESTOS UPDATE: Imperial Tobacco Can't Appeal Interlocutory Order ASBESTOS UPDATE: Housing Agency's PD Claims Not Limited to VAT ASBESTOS UPDATE: Carlisle Cos. Still Exposed to Pending Claims ASBESTOS UPDATE: Cytec Industries Faces 8,000 Claims at March 31 ASBESTOS UPDATE: Crane Co. Had 57,398 Pending Claims at March 31 ASBESTOS UPDATE: Mine Safety Remains Defendant in 2,418 Suits ASBESTOS UPDATE: Dana Holding Had 26,000 Claims at March 31 ASBESTOS UPDATE: U.S. Steel Had 715 Active Cases at March 31 ASBESTOS UPDATE: Chicago Bridge Had 1,300 Claims at March 31 ASBESTOS UPDATE: "Parsons" Suit Remains Stayed ASBESTOS UPDATE: Ingersoll-Rand Had $917MM ARO at March 31 ASBESTOS UPDATE: Coca-Cola Still Involved in Insurance Suit ASBESTOS UPDATE: Goodrich Corp. Still Defendant in Suits ASBESTOS UPDATE: Owens-Illinois Still Defending Exposure Suits ASBESTOS UPDATE: Tyco International Estimates $52MM Liability ********* BP PLC: Opt-Outs in Class Action Settlement a Landmine Potential ---------------------------------------------------------------- Andrew Longstreth, writing for Reuters, reports that BP Plc appears to be well on its way to concluding an estimated $7.8 billion settlement to resolve most of its civil liability from the Gulf of Mexico oil spill. But a potential landmine lurks in the settlement documents: under certain circumstances, the company can invoke a little-noticed provision that allows it to walk away from the deal. The potential landmine is opt-outs. In a settlement of a class action, class members can reject the deal and decide to go it alone. Defendants have to be prepared for the possibility that a high volume of opt-out litigation will undermine the goal of global resolution. BP certainly is prepared: Its settlement agreement with plaintiffs claiming economic and property damages includes a provision that gives BP the right to terminate the deal if the total of opt-outs "exceeds a number agreed to by the parties." So what's the number? That's the $7.8 billion question. The settlement agreement doesn't say. In fact, the document states that the opt-out number that could trigger a blowup is to be submitted to the court "in a sealed envelope." It's not clear why BP is keeping the number secret. A spokesman for BP said that it was "part of the settlement negotiation process." Others said they suspect there's more to it. Plaintiffs' lawyer Tony Buzbee -- tbuzbee@txattorneys.com -- of the Buzbee Law Firm, who is weighing whether to recommend the settlement to his clients, said BP may want the number kept under seal so that lawyers with lots of clients do not team up and threaten to opt out in an effort to extract a favorable deal. "They don't want a coalition of attorneys getting together saying we're not going to participate unless you treat us differently," said Mr. Buzbee, who added that he's never before encountered an opt-out provision with a secret trigger. Edward Sherman, a professor at Tulane University Law School, said that by keeping the trigger number private BP was also giving itself the option of accepting the deal even if the opt-outs exceed its threshold. "They can go ahead and accept it, and they're not committed to a public number," Mr. Sherman said. Earlier this month, U.S. District Judge Carl Barbier in New Orleans granted preliminary approval to the pact between BP and thousands of private plaintiffs affected by the spill. Judge Barbier set a fairness hearing date for November 8, when he will consider granting final approval. In the meantime, plaintiffs who are part of the class have until August 31 to file objections to the settlement. Those plaintiffs also face a deadline of October 1 to opt out of the settlement. BP PLC: City of Robertsdale Agree to Oil Spill Settlement --------------------------------------------------------- The City of Robertsdale will receive about twice the expected amount of settlement money from the 2010 Deepwater Horizon oil spill following a final agreement, officials said on May 18. The Robertsdale City Council voted on May 18 to accept a final settlement from BP for municipal revenue lost during the spill. The city should receive a final total of more than $40,000 for sales taxes, business license fees and other revenue lost when the Gulf Coast economy was hit by the effects of the spill, Ken Raines, lawyer for the city, said. Robertsdale has already received $20,000. The new agreement will give the city another $21,000 to $22,000 after fees, such as 4 percent to the Plaintiff's Steering Committee, are deducted, Mr. Raines said. "This will be the final settlement," Mr. Raines said. Mr. Raines said that under the settlement, BP will also pay his attorney's fees in the case and that he will not bill the city for his time. Mr. Raines said the settlement came after U.S. District Judge Carl Barbier approved a class-action settlement to resolve claims against BP. While the plaintiffs in the class-action suit are individuals and businesses, resolution of the action has also allowed claims by government entities to be resolved, Mr. Raines said. He said that BP officials have recalculated some of the claims for losses by local governments and those new estimates will bring in more money for Robertsdale. Mayor Charles Murphy said he was pleased by the settlement and that city officials had not expected more money after the first $20,000. In other action at the May 18 meeting, the council: * Heard the annual report on the city sewer system. The report was sent to the Alabama Department of Environmental Management, Greg Smith, city engineer, said. Mr. Smith told council members that improvements to the system in the last year have cut the amount of rainwater coming into the treatment plant. "In general our flows were down, so we think that the Rock Creek project was a success, because the heavy flows have dropped substantially," Mr. Smith said. "The flip side of that is that our peak flows have actually gone up and that's a result of us having a tighter system." Mr. Smith said the city plans to replace the pumping station at Palmer Street. The station, which is about 50 years old, is the oldest facility in the city system. "After that is replaced, all the system will be up-to-date," he said. He said another planned improvement is to remove solid material, known as sludge, at the city's sewage treatment plant. "It's been accumulating since 1980 or so when that plant was put on line," Mr. Smith said. "Probably in the near future we'll clean that out and hopefully that will be good for another 30 years or so." * Awarded a bid for storm debris removal to TAG Grinding. Mr. Smith said 10 companies submitted proposals, but five did not meet bidding specifications. He said the TAG submission was the lowest of the bids meeting specifications. The contract includes removing limbs and other debris from public road rights-of-way and temporary storage facilities as well as processing the material and hauling it to disposal sites. The bid also includes prices to remove hazardous material and other items, such as refrigerators. CASSELS BROCK: Launches Counterclaims Against Law Firms ------------------------------------------------------- Kendyl Sebesta, writing for Law Times, reports that Cassels Brock & Blackwell LLP has shocked lawyers across the country after it sued more than 150 practitioners and law firms in the midst of highly publicized conflict of interest allegations against it. "It's quite a complicated web they've spun," says Russell Hart -- rhart@grj.ca -- a partner at Gerrand Rath Johnson LLP who's one of the more than 150 lawyers named in the claim. "The tremendous amount of paperwork and logistics that went into it is stunning. It's very, very unusual. It just happened I was the unfortunate one named." Mr. Hart's Saskatchewan law firm was one of the more than 100 across the country that advised General Motors of Canada Ltd. auto dealers in May 2009 on "wind-down agreements" introduced during the company's financial troubles. The dealers have accused GM of using "shock and awe" tactics to pressure them into closing their businesses over the course of six days in 2009 in a bid to secure a government bailout. A class action lawsuit led by Trillium Motor World Ltd., one of the 240 dealers forced to close up shop, alleges many of them had a right to cancel the agreements and sue for breach of duty of fair dealing under the province's franchise laws. The claim on behalf of more than 200 dealers is seeking $750 million in damages. Cassels Brock has now launched the counterclaim against the lawyers and law firms. None of the allegations in either claim has been proven in court. "Every one of the class members lost their businesses as a direct result," says David Sterns -- dsterns@sotosllp.com -- a lawyer at Sotos LLP who represents the auto dealers in Trillium Motor World Ltd. v. General Motors of Canada Ltd. and Cassels Brock & Blackwell LLP. "They are in dire straits and haven't been able to recover. They've been caught up in a whirlwind." Cassels Brock, the class action alleges, had an undisclosed conflict of interest in the case because the firm advised both the Canadian Automobile Dealers Association and the federal government during the negotiations. According to the claim launched by Trillium in 2010, Cassels Brock had a contractual relationship and an obligation to provide legal advice to the auto dealers about the "wind-down agreements." It also had a fiduciary duty to the auto dealers, the claim alleges. In Cassels Brock's counterclaim against the law firms and lawyers like Mr. Hart, it alleges they should cover any damages it may have to pay. It also seeks costs. The more than 150 lawyers and law firms named in the lawsuit range from sole practitioners in Saskatchewan to Bay Street heavy hitters. It identifies some of them simply as John Doe. The claim alleges they, not Cassels Brock, were negligent in advising on the agreements. "The WDAs (wind-down agreements) required each dealer to obtain independent legal advice before executing a WDA," Cassels Brock writes in its counterclaim. "Each of the dealers who signed a WDA did so after obtaining independent legal advice from one of the third parties, as set out in Schedule A. Cassels did not provide independent legal advice to any of the dealers in relation to the WDAs." Some people connected to the case call it an unusual move that could set an interesting legal precedent. "I imagine the process of being served was very surprising to those lawyers," says Mr. Sterns. "It's unusual that the lawyers who advised the auto dealers aren't being sued by my clients, yet they are being sued by Cassels Brock. One wouldn't expect that." Superior Court Justice George Strathy also hinted at the potential impact of the conflict of interest allegations against Cassels Brock in his certification ruling in the class action last year. He noted that determining whether Cassels Brock was in a solicitor-client relationship with all of the class members; whether it owed contractual, fiduciary or other duties to the class; and whether there was a breach of them were all important questions to consider. "These are weighty questions," wrote Justice Strathy. "A negative answer to the first two questions will send the plaintiffs packing insofar as Cassels is concerned. A positive answer to all will significantly advance the claims of the class against Cassels." A ruling in favor of the dealers in the class action could mean lawyers and law firms would owe duties to members of a class they represent even if they don't advise them directly on a particular deal and could apply to any member of the group, Judge Strathy hinted. That could have spell trouble for the legal profession, says Mr. Hart, who notes a ruling in favor of the dealers in the class action could cause lawyers to become significantly more cautious about who they represent in the future. "In our case, it appears to be a purely academic move," says Mr. Hart of the counterclaim. "It seems as though they're just trying to see how far they can take it. We'll have to wait and see how it goes." Still, most involved in the case are saying little about the Cassels Brock's move. Cassels Brock declined to comment about its counterclaim, as did most of the lawyers and law firms named in it. "I think it's safe to say that we were all really surprised," says Patrick Brennan, co-leader of Bennett Jones LLP's financial services practice. A defendant in the counterclaim, he declined to comment further on the matter. In the meantime, GM and Cassels Brock both lost appeals of the Superior Court's certification decision in the class action in a Divisional Court ruling in March. Cassels Brock is now seeking leave to appeal to the Court of Appeal. As for the legal strategy behind Cassel Brock's counterclaim, Hart says, "One could only speculate." "As for the true legal strategy and tactic behind the suit, I'm afraid I have no idea. We'll have to see what comes to light in the upcoming months." Still, Mr. Hart says he isn't worried. "Yes, I was named in the suit, but it's really quite irrelevant to the client's case," says Mr. Hart, who adds his inclusion in the action "was quite improper, really." According to Mr. Sterns, discoveries will begin later this year in the class action. COCA-COLA CO: Sued for Falsely Marketing Simply Orange Products --------------------------------------------------------------- Jeremy M. DaSaro, on behalf of himself and all others similarly situated v. The Coca-Cola Company, Case No. 3:12-cv-02586 (N.D. Calif., May 18, 2012) arises out of the Defendant's alleged deceptive practices in falsely marketing its Simply Orange(R) line of orange juice products as "100% Pure Squeezed Orange Juice" and "pure, natural orange juice." The complaint says Coca-Cola reinforces its claim with other explicit promises of its commitment to purity and quality, and the name itself, "Simply Orange" indicates that the product is wholesome, untainted juice. In reality, however, Simply Orange is anything but pure squeezed orange juice for it undergoes extensive unnatural processing to extend shelf-life, Mr. DaSaro alleges. Hence, he seeks relief in this action individually, and on behalf of all purchasers of Simply Orange in the United States from January 1, 2008, to the present, for the Defendant's violations of the Magnuson-Moss Act, among other laws. Mr. DaSaro is a resident of New York. He purchased Simply Orange Juice Products during the Class Period. Coca-Cola is a Delaware corporation and a producer of orange juice in the United States, through its Simply Orange brand. The Plaintiff is represented by: David E. Bower, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256-2884 Facsimile: (424) 256-2885 E-mail: dbower@faruqilaw.com ERNST & YOUNG: NELA Says Class Action Waivers Undermine FLSA ------------------------------------------------------------ Abigail Rubenstein, writing for Law360, reports that arbitration agreements that bar employees from pursuing wage-and-hour claims on a classwide basis undermine the Fair Labor Standards Act, the National Employment Lawyers Association said on May 21 in a brief urging the Second Circuit to reject an appeal by Ernst & Young LLP. The appeals court should affirm a New York federal judge's decision not to compel individual arbitration of former Ernst & Young accountant Stephanie Sutherland's overtime claims against the company, which she is hoping to pursue as a collective action, NELA said. NMI RETIREMENT: Retirees Mull Class Action Over Pensions -------------------------------------------------------- Haidee V. Eugenio, writing for Saipan Tribune, reports that NMI Retirement Fund administrator Richard S. Villagomez said the Fund is trying to recoup from 120 retirees an estimated $5 million in overpayments arising from the pension agency's own misapplication of a law prior to 2001. Affected retirees were planning to meet May 24, to discuss the possibility of a class action suit against the Fund. The Fund sent the letters on or about May 8, 2012, addressed to retirees who separated from government as far back as 19 years ago or longer. One of those letters was addressed to former police officer and former quarantine officer Frederick C. Ngeskabei, 52, who is being asked to return $225,000 to the Fund by having up to 50 percent cut in his bi-monthly pension until the full amount is recovered. "I retired in 1993, that's 19 years ago and now they want me to pay back $225,000. It's not my fault. Why do I have to suffer from their own mistakes?" Mr. Ngeskabei told Saipan Tribune on May 22. The Fund has also asked retired police major Antonio O. Kiyoshi to pay back $93,000. Mr. Kiyoshi granted an interview with the Saipan Tribune last week, saying the Fund should not punish retirees for the agency's own mistakes. Messrs. Ngeskabei and Kiyoshi said they also plan to appeal with the Fund board of trustees, but the board now lacks a quorum. Rep. Tony Sablan (R-Saipan) wrote a letter to the Fund's Villagomez on May 17, the day the story about Kiyoshi came out, to inquire about the number of retirees that were mailed a similar letter, the total dollar amount involved, and the statutory reference or basis for the Fund's decision, among other things. Mr. Villagomez, in a May 21 response to Mr. Sablan's letter, said the Fund sent approximately 120 adverse action letters resulting from the Fund's internal audit of the top overtime earners. He said a number of benefits was overstated as a result of a misapplication of the law prior to 2001. "I am duty bound to recollect these funds as these funds are necessary to pay properly accrued benefits to other members. The total amount that we seek to recoup as a result of these 120 letters is approximately $5,000,000," Mr. Villagomez told Mr. Sablan in his letter. Mr. Villagomez said these adverse actions are based upon the law in place "at the time these individuals retired." He was referring to 1 CMC 8313(p) that required overtime and compensatory time to be used to calculate eligibility only but not to calculate the amount of benefit given to a retiree. "The affected members' benefit amounts were calculated taking overtime and compensatory time into consideration in violation of this provision. As stated above, these are administrative actions appealable to the board of trustees. While the board of trustees has been kept apprised of the ongoing audit, the board of trustees took no part in my decision as it was an administrative matter. This is consistent with the Fund's administrative process," Mr. Villagomez told Mr. Sablan. Mr. Sablan, in an interview on May 22, said he is drafting a bill that would prevent the Fund from going after these 120 retirees because of the Fund's own miscalculations. He said he might introduce the bill on the floor in the May 24 session, or in the next few days. "In these difficult times, retirees are forced to have up to 50 percent cut in their benefits every other week, and it's not even their fault. And with the bankruptcy proceedings, who knows, these same retirees will have additional cuts of say 50 percent in their pensions so these retirees will end up not receiving any pension at all," Mr. Sablan told Saipan Tribune. He said he asked the House legal counsel to see whether a statue of limitation could apply to the Fund matter. "The Fund allowed this mistake to go on for so long. We're not talking about one year or two years but a decade or more. Now all of a sudden they want these people who retired several years ago to pay back," said Mr. Sablan, a former immigration director and currently chairman of the Saipan and Northern Islands Legislative Delegation's Committee on Health, Education and Welfare. Mr. Ngeskabei said retirees who received adverse action letters from the Fund planned to meet last May 24, 6:00 p.m., at Minatchom Atdao pavilion in Susupe to map out a plan to address their concerns, including a possible class action suit against the Fund. "I am currently receiving $39,000 a year in pension. The Fund said it will be reduced to $27,000. We all know that the economy is so bad, the prices of medicine, gas and almost every item are high, we can't afford to lose up to 50 percent of our pension every two weeks," he added. Mr. Sablan said his office has heard of a lot of complaints and concerns from retirees about the notices of adverse action, prompting him to write to the Fund. Sen. Frank Cruz (R-Tinian) and Senate floor leader Pete Reyes (R- Saipan) had said the Fund should be prepared for a possible class action from affected retirees. The NMI Retirement Fund is the first public pension agency on U.S. soil to seek bankruptcy protection in court. REYNOLDS AMERICAN: Awaits Decision on "Sateriale" Suit Appeal ------------------------------------------------------------- Reynolds American Inc. is awaiting a court decision on an appeal from the dismissal of a class action lawsuit filed against its subsidiary, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. In Sateriale v. R. J. Reynolds Tobacco Co., a class action filed in November 2009 in the U.S. District Court for the Central District of California, the plaintiffs brought the case on behalf of all persons who tried unsuccessfully to redeem Camel Cash certificates from 1991 through March 31, 2007, or who held Camel Cash certificates as of March 31, 2007. The plaintiffs allege that in response to the defendants' action to discontinue redemption of Camel Cash as of March 31, 2007, customers, like the plaintiffs, attempted to exchange their Camel Cash for merchandise and that the defendants, however, did not have any merchandise to exchange for Camel Cash. The plaintiffs allege unfair business practices, deceptive practices, breach of contract and promissory estoppel. The plaintiffs seek injunctive relief, actual damages, costs and expenses. In January 2010, the defendants filed a motion to dismiss, which prompted the plaintiffs to file an amended complaint in February 2010. The class definition changed to a class consisting of all persons who reside in the U.S. and tried unsuccessfully to redeem Camel Cash certificates, from October 1, 2006 (six months before the defendant ended the Camel Cash program) or who held Camel Cash certificates as of March 31, 2007. The plaintiffs also brought the class on behalf of a proposed California subclass, consisting of all California residents meeting the same criteria. In May 2010, RJR Tobacco's motion to dismiss the amended complaint for lack of jurisdiction over subject matter and, alternatively, for failure to state a claim was granted with leave to amend. The plaintiffs filed a second amended complaint. In July 2010, RJR Tobacco's motion to dismiss the second amended complaint was granted with leave to amend. The plaintiffs filed a third amended complaint, and RJR Tobacco filed a motion to dismiss in September 2010. In December 2010, the court granted RJR Tobacco's motion to dismiss with prejudice. Final judgment was entered by the court and the plaintiffs filed a notice of appeal in January 2011. Briefing is complete. Oral argument was scheduled for May 7, 2012. REYNOLDS AMERICAN: JTI's Indemnification Bid Still Pending ---------------------------------------------------------- A request for indemnification in a class action lawsuit filed against a subsidiary of the purchaser of Reynolds American Inc.'s former international tobacco business remains pending, the Company disclosed in its April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. By purchase agreement dated May 12, 1999, referred to as the 1999 Purchase Agreement, R.J. Reynolds Tobacco Holdings, Inc. ("RJR") and R. J. Reynolds Tobacco Company ("RJR Tobacco") sold their international tobacco business to Japan Tobacco Inc. ("JTI"). Under the 1999 Purchase Agreement, RJR and RJR Tobacco retained certain liabilities relating to the international tobacco business sold to JTI. Under its reading of the indemnification provisions of the 1999 Purchase Agreement, JTI has requested indemnification for damages allegedly arising out of these retained liabilities. As previously reported, a number of the indemnification claims between the parties relating to the activities of Northern Brands in Canada have been resolved. The other matters for which JTI has requested indemnification for damages under the indemnification provisions of the 1999 Purchase Agreement are: * In a letter dated March 31, 2006, counsel for JTI stated that JTI would be seeking indemnification under the 1999 Purchase Agreement for any damages it may incur or may have incurred arising out of a Southern District of New York grand jury investigation, a now-terminated Eastern District of North Carolina grand jury investigation, and various actions filed by the European Community and others in the U.S. District Court for the Eastern District of New York, referred to as the EDNY, against RJR Tobacco and certain of its affiliates on November 3, 2000, August 6, 2001, and October 30, 2002, and against JTI on January 11, 2002. * JTI also has sought indemnification relating to a Statement of Claim filed on April 23, 2010, against JTI Macdonald Corp., referred to as JTI-MC, by the Ontario Flue-Cured Tobacco Growers' Marketing Board, referred to as the Board, Andy J. Jacko, Brian Baswick, Ron Kichler, and Aprad Dobrenty, proceeding on their own behalf and on behalf of a putative class of Ontario tobacco producers that sold tobacco to JTI-MC during the period between January 1, 1986, and December 31, 1996, referred to as the Class Period, through the Board pursuant to certain agreements. The Statement of Claim seeks recovery for damages allegedly incurred by the class representatives and the putative class for tobacco sales during the Class Period made at the contract price for duty free or export cigarettes with respect to cigarettes that, rather than being sold duty free or for export, purportedly were sold in Canada, which allegedly breached one or more of a series of contracts dated between June 4, 1986, and July 3, 1996. A motion to dismiss has been filed. * Finally, JTI has advised RJR and RJR Tobacco of its view that, under the terms of the 1999 Purchase Agreement, RJR and RJR Tobacco are liable for a roughly $1.7 million judgment entered in 1998, plus interest and costs, in an action filed in Brazil by Lutz Hanneman, a former employee of a former RJR Tobacco subsidiary. RJR and RJR Tobacco deny that they are liable for this judgment under the terms of the 1999 Purchase Agreement. Although RJR and RJR Tobacco recognize that, under certain circumstances, they may have these and other unresolved indemnification obligations to JTI under the 1999 Purchase Agreement, RJR and RJR Tobacco disagree with JTI as to (1) what circumstances relating to any such matters may give rise to indemnification obligations by RJR and RJR Tobacco, and (2) the nature and extent of any such obligation. RJR and RJR Tobacco have conveyed their position to JTI, and the parties have agreed to resolve their differences at a later time. REYNOLDS AMERICAN: "Collora" Suit vs. Unit Remains Stayed in Mo. ---------------------------------------------------------------- The class action lawsuit captioned Collora v. R. J. Reynolds Tobacco Co., remains stayed in Missouri, according to Reynolds American Inc.'s April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. A "lights" class-action case is pending against each of RJR Tobacco and B&W in Missouri. In Collora v. R. J. Reynolds Tobacco Co., a case filed in May 2000 in Circuit Court, St. Louis County, Missouri, a judge in St. Louis certified a class in December 2003. In April 2007, the court granted the plaintiffs' motion to reassign Collora and the following cases to a single general division: Craft v. Philip Morris Companies, Inc. and Black v. Brown & Williamson Tobacco Corp. In April 2008, the court stayed the case pending U.S. Supreme Court review in Good v. Altria Group, Inc. A nominal trial date of January 10, 2011, was scheduled, but it did not proceed at that time. There is currently no activity in the case. RAI says in the event RJR Tobacco and its affiliates or indemnitees lose one or more of the pending "lights" class-action lawsuits, RJR Tobacco could face bonding difficulties depending upon the amount of damages ordered, if any, which could have a material adverse effect on RJR Tobacco's, and consequently RAI's, results of operations, cash flows or financial position. REYNOLDS AMERICAN: Continues to Await Decision in "Tatum" Suit -------------------------------------------------------------- In May 2002, in Tatum v. The R.J.R. Pension Investment Committee of the R. J. Reynolds Tobacco Company Capital Investment Plan, an employee of Reynolds American Inc.'s subsidiary, R. J. Reynolds Tobacco Company ("RJR Tobacco"), filed a class-action lawsuit in the U.S. District Court for the Middle District of North Carolina, alleging that the defendants, R.J. Reynolds Tobacco Holdings, Inc. ("RJR"), RJR Tobacco, the RJR Employee Benefits Committee and the RJR Pension Investment Committee, violated the Employee Retirement Income Security Act of 1974, referred to as ERISA. The actions about which the plaintiff complains stem from a decision made in 1999 by RJR Nabisco Holdings Corp., subsequently renamed Nabisco Group Holdings Corp., referred to as NGH, to spin off RJR, thereby separating NGH's tobacco business and food business. As part of the spin-off, the 401(k) plan for the previously related entities had to be divided into two separate plans for the now separate tobacco and food businesses. The plaintiff contends that the defendants breached their fiduciary duties to participants of the RJR 401(k) plan when the defendants removed the stock funds of the companies involved in the food business, NGH and Nabisco Holdings Corp., referred to as Nabisco, as investment options from the RJR 401(k) plan approximately six months after the spin-off. The plaintiff asserts that a November 1999 amendment (the "1999 Amendment") that eliminated the NGH and Nabisco funds from the RJR 401(k) plan on January 31, 2000, contained sufficient discretion for the defendants to have retained the NGH and Nabisco funds after January 31, 2000, and that the failure to exercise such discretion was a breach of fiduciary duty. In his complaint, the plaintiff requests, among other things, that the court require the defendants to pay as damages to the RJR 401(k) plan an amount equal to the subsequent appreciation that was purportedly lost as a result of the liquidation of the NGH and Nabisco funds. In July 2002, the defendants filed a motion to dismiss, which the court granted in December 2003. In December 2004, the U.S. Court of Appeals for the Fourth Circuit reversed the dismissal of the complaint, holding that the 1999 Amendment did contain sufficient discretion for the defendants to have retained the NGH and Nabisco funds as of February 1, 2000, and remanded the case for further proceedings. The court granted the plaintiff leave to file an amended complaint and denied all pending motions as moot. In April 2007, the defendants moved to dismiss the amended complaint. The court granted the motion in part and denied it in part, dismissing all claims against the RJR Employee Benefits Committee and the RJR Pension Investment Committee. The remaining defendants, RJR and RJR Tobacco, filed their answer and affirmative defenses in June 2007. The plaintiff filed a motion for class certification, which the court granted in September 2008. The district court ordered mediation, but no resolution of the case was reached. In September 2008, each of the plaintiffs and the defendants filed motions for summary judgment, and in January 2009, the defendants filed a motion to decertify the class. A second mediation occurred in June 2009, but again no resolution of the case was reached. The district court overruled the motions for summary judgment and the motion to decertify the class. A non-jury trial was held in January and February 2010. During closing arguments, the plaintiff argued for the first time that certain facts arising at trial showed that the 1999 Amendment was not validly adopted, and then moved to amend his complaint to conform to this evidence at trial. On June 1, 2011, the court granted the plaintiff's motion to amend his complaint and found that the 1999 Amendment was invalid. The parties filed their findings of fact and conclusions of law on February 4, 2011. A decision is pending. No further updates were reported in the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. REYNOLDS AMERICAN: Continues to Defend 6 Class Suits in Canada -------------------------------------------------------------- Reynolds American Inc. disclosed in its April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012, that it continues to defend six class action lawsuits in Canada. The six putative Canadian class actions were filed against various Canadian and non-Canadian tobacco-related entities, including the Company's subsidiary, R. J. Reynolds Tobacco Company ("RJR Tobacco"), and one of its affiliates, in courts in the provinces of Alberta, British Columbia, Manitoba, Nova Scotia, and Saskatchewan, although the plaintiffs' counsel have been actively pursuing only the action pending in Saskatchewan at this time: * In Adams v. Canadian Tobacco Manufacturers' Council, a case filed in July 2009 in the Court of Queen's Bench for Saskatchewan against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiffs brought the case on behalf of all individuals who were alive on July 10, 2009, and who have suffered, or who currently suffer, from chronic obstructive pulmonary disease, emphysema, heart disease or cancer, after having smoked a minimum of 25,000 cigarettes designed, manufactured, imported, marketed or distributed by the defendants. * In Dorion v. Canadian Tobacco Manufacturers' Council, a case filed in June 2009, in the Court of Queen's Bench of Alberta against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiffs brought the case on behalf of all individuals, including their estates, dependents and family members, who purchased or smoked cigarettes designed, manufactured, marketed or distributed by the defendants. * In Kunka v. Canadian Tobacco Manufacturers' Council, a case filed in 2009 in the Court of Queen's Bench of Manitoba against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiffs brought the case on behalf of all individuals, including their estates, and their dependents and family members, who purchased or smoked cigarettes manufactured by the defendants. * In Semple v. Canadian Tobacco Manufacturers' Council, a case filed in June 2009 in the Supreme Court of Nova Scotia against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiffs brought the case on behalf of all individuals, including their estates, dependents and family members, who purchased or smoked cigarettes designed, manufactured, marketed or distributed by the defendants for the period of January 1, 1954, to the expiry of the opt out period as set by the court. * In Bourassa v. Imperial Tobacco Canada Limited, a case filed in June 2010 in the Supreme Court of British Columbia against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiffs brought the case on behalf of all individuals, including their estates, who were alive on June 12, 2007, and who have suffered, or who currently suffer from chronic respiratory diseases, after having smoked a minimum of 25,000 cigarettes designed, manufactured, imported, marketed, or distributed by the defendants. * In McDermid v. Imperial Tobacco Canada Limited, a case filed in June 2010 in the Supreme Court of British Columbia against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiffs brought the case on behalf of all individuals, including their estates, who were alive on June 12, 2007, and who have suffered, or who currently suffer from heart disease, after having smoked a minimum of 25,000 cigarettes designed, manufactured, imported, marketed, or distributed by the defendants. In each of these six cases, the plaintiffs allege fraud, fraudulent concealment, breach of warranty, breach of warranty of merchantability and of fitness for a particular purpose, failure to warn, design defects, negligence, breach of a "special duty" to children and adolescents, conspiracy, concert of action, unjust enrichment, market share liability, joint liability, and violations of various trade practices and competition statutes. The plaintiffs seek compensatory and aggravated damages; punitive or exemplary damages; the right to waive the torts and claim disgorgement of the amount of revenues or profits the defendants received from the sale of tobacco products to putative class members; interest pursuant to the Pre-judgment Interest Act and other similar legislation; and other relief the court deems just. Pursuant to the terms of the 1999 sale of RJR Tobacco's international tobacco business, RJR Tobacco has tendered the defense of these six actions to Japan Tobacco Inc. Subject to a reservation of rights, JTI has assumed the defense of RJR Tobacco and its current or former affiliates in these actions. REYNOLDS AMERICAN: Continues to Defend "Lights" Class Suits ----------------------------------------------------------- Reynolds American Inc. continues to defend class action lawsuits alleging that the use of the term "lights" constitutes unfair and deceptive trade practices, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. The "lights" class-action cases are pending against R. J. Reynolds Tobacco Company ("RJR Tobacco") or Brown & Williamson Holdings, Inc. ("B&W") in Illinois (2), Missouri (2), Minnesota (2), California (1) and Arizona (1). The classes in these cases generally seek to recover $50,000 to $75,000 per class member for compensatory and punitive damages, injunctive and other forms of relief, and attorneys' fees and costs from RJR Tobacco and/or B&W. In general, the plaintiffs allege that RJR Tobacco or B&W made false and misleading claims that "lights" cigarettes were lower in tar and nicotine and/or were less hazardous or less mutagenic than other cigarettes. The cases typically are filed pursuant to state consumer protection and related statutes. Many of these "lights" cases were stayed pending review of the Good v. Altria Group, Inc. case by the U.S. Supreme Court. In that "lights" class-action case pending against Altria Group, Inc. and Philip Morris USA, the U.S. Supreme Court decided that these claims are not preempted by the Federal Cigarette Labeling and Advertising Act or by the Federal Trade Commission's, referred to as FTC, historic regulation of the industry. Since this decision in December 2008, a number of the stayed cases have become active again. The seminal "lights" class-action case involves RJR Tobacco's competitor, Philip Morris, Inc. Trial began in Price v. Philip Morris, Inc. in January 2003. In March 2003, the trial judge entered judgment against Philip Morris in the amount of $7.1 billion in compensatory damages and $3 billion in punitive damages. Based on Illinois law, the bond required to stay execution of the judgment was set initially at $12 billion. Philip Morris pursued various avenues of relief from the $12 billion bond requirement. On December 15, 2005, the Illinois Supreme Court reversed the lower court's decision and sent the case back to the trial court with instructions to dismiss the case. On December 5, 2006, the trial court granted the defendant's motion to dismiss and for entry of final judgment. The case was dismissed with prejudice the same day. In December 2008, the plaintiffs filed a petition for relief from judgment, stating that the U.S. Supreme Court's decision in Good v. Altria Group, Inc. rejected the basis for the reversal. The trial court granted the defendant's motion to dismiss the plaintiffs' petition for relief from judgment in February 2009. In March 2009, the plaintiffs filed a notice of appeal to the Illinois Appellate Court, Fifth Judicial District, requesting a reversal of the February 2009 order and remand to the circuit court. On February 24, 2011, the appellate court entered an order, concluding that the two-year time limit for filing a petition for relief from a final judgment began to run when the trial court dismissed the plaintiffs' lawsuit on December 18, 2006. The appellate court therefore found that the petition was timely, reversed the order of the trial court, and remanded the case for further proceedings. Philip Morris filed a petition for leave to appeal to the Illinois Supreme Court. On September 28, 2011, the Illinois Supreme Court denied Philip Morris' petition for leave to appeal and returned the case to the trial court for further proceedings. The plaintiffs filed a petition for relief from the judgment in February 2012. RAI says in the event RJR Tobacco and its affiliates or indemnitees lose one or more of the pending "lights" class-action lawsuits, RJR Tobacco could face bonding difficulties depending upon the amount of damages ordered, if any, which could have a material adverse effect on RJR Tobacco's, and consequently RAI's, results of operations, cash flows or financial position. REYNOLDS AMERICAN: "Howard" Suit Remains Stayed in Illinois ----------------------------------------------------------- The class action lawsuit captioned Howard v. Brown & Williamson Tobacco Corp., remains stayed in Illinois, Reynolds American Inc. disclosed in its April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. In Howard v. Brown & Williamson Tobacco Corp., another case filed in February 2000 in Circuit Court, Madison County, Illinois, a judge certified a class in December 2001. In June 2003, the trial judge issued an order staying all proceedings pending resolution of the Price v. Philip Morris, Inc. case. The plaintiffs appealed this stay order to the Illinois Fifth District Court of Appeals, which affirmed the Circuit Court's stay order in August 2005. There is currently no activity in the case. REYNOLDS AMERICAN: "Jones" Suit Remains Pending in Missouri ----------------------------------------------------------- In Jones v. American Tobacco Co., Inc., a case filed in December 1998 in Circuit Court, Jackson County, Missouri, the defendants removed the case to the U.S. District Court for the Western District of Missouri in February 1999. The action was brought against the major U.S. cigarette manufacturers, including Reynolds American Inc.'s subsidiary R. J. Reynolds Tobacco Company ("RJR Tobacco") and Brown & Williamson Holdings, Inc. ("B&W"), and parent companies of U.S. cigarette manufacturers, including R.J. Reynolds Tobacco Holdings, Inc. ("RJR"), by tobacco product users and purchasers on behalf of all similarly situated Missouri consumers. The plaintiffs allege that their use of the defendants' tobacco products has caused them to become addicted to nicotine. The plaintiffs seek to recover an unspecified amount of compensatory and punitive damages. The case was remanded to the Circuit Court in February 1999. There has been limited activity in this case. No further updates were reported in the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. REYNOLDS AMERICAN: "Parsons" Class Suit Remains Stayed in W.V. -------------------------------------------------------------- In Parsons v. A C & S, Inc., a case filed in February 1998 in Circuit Court, Ohio County, West Virginia, the plaintiff sued asbestos manufacturers, U.S. cigarette manufacturers, including Reynolds American Inc.'s subsidiary R. J. Reynolds Tobacco Company ("RJR Tobacco") and Brown & Williamson Holdings, Inc. ("B&W"), and parent companies of U.S. cigarette manufacturers, including R.J. Reynolds Tobacco Holdings, Inc. ("RJR"), seeking to recover $1 million in compensatory and punitive damages individually and an unspecified amount for the class in both compensatory and punitive damages. The class was brought on behalf of persons who allegedly have personal injury claims arising from their exposure to respirable asbestos fibers and cigarette smoke. The plaintiffs allege that Mrs. Parsons' use of tobacco products and exposure to asbestos products caused her to develop lung cancer and to become addicted to tobacco. In December 2000, three defendants, Nitral Liquidators, Inc., Desseaux Corporation of North American and Armstrong World Industries, filed bankruptcy petitions in the U.S. Bankruptcy Court for the District of Delaware, In re Armstrong World Industries, Inc. Pursuant to Section 362(a) of the Bankruptcy Code, Parsons is automatically stayed with respect to all defendants. No further updates were reported in the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. REYNOLDS AMERICAN: Payment Bid Hearing in "Scott" Suit on June 18 ----------------------------------------------------------------- A hearing on plaintiffs' motion for attorneys' fees is scheduled for June 18, 2012, in the class action lawsuit captioned Scott v. American Tobacco Co., according to Reynolds American Inc.'s April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. On November 5, 1998, in Scott v. American Tobacco Co., a case filed in District Court, Orleans Parish, Louisiana, the trial court certified a medical monitoring or smoking cessation class of Louisiana residents who were smokers on or before May 24, 1996. The case was brought against the major U.S. cigarette manufacturers, including R. J. Reynolds Tobacco Company ("RJR Tobacco") and Brown & Williamson Holdings, Inc. ("B&W"), seeking to recover an unspecified amount of damages to pay for medical monitoring and smoking cessation programs. In July 2003, the jury returned a verdict in favor of the defendants on the plaintiffs' claim for medical monitoring and found that cigarettes were not defectively designed. However, the jury also made certain findings against the defendants on claims relating to fraud, conspiracy, marketing to minors and smoking cessation. Notwithstanding these findings, this portion of the trial did not determine liability as to any class member or class representative. What primarily remained in the case was a class- wide claim that the defendants pay for a program to help people stop smoking. In May 2004, the jury returned a verdict in the amount of $591 million on the class's claim for a smoking cessation program. In September 2004, the defendants posted a $50 million bond, pursuant to legislation that limits the amount of the bond to $50 million collectively for Master Settlement Agreement ("MSA") signatories, and noticed their appeal. RJR Tobacco posted $25 million (the portions for RJR Tobacco and B&W) towards the bond. In February 2007, the Louisiana Court of Appeals upheld the class certification and found the defendants responsible for funding smoking cessation for eligible class members. The appellate court also ruled, however, that the defendants were not liable for any post-1988 claims, rejected the award of prejudgment interest, struck eight of the 12 components of the smoking cessation program and remanded the case for further proceedings. In particular, the appellate court ruled that no class member, who began smoking after September 1, 1988, could receive any relief, and that only those smokers, whose claims accrued on or before September 1, 1988, would be eligible for the smoking cessation program. The plaintiffs had previously expressly represented to the trial court that none of their claims accrued before 1988 and that the class claims did not accrue until around 1996, when the case was filed. The defendants' application for writ of certiorari with the Louisiana Supreme Court was denied in January 2008. The defendants' petition for writ of certiorari with the U.S. Supreme Court was denied in June 2008. In July 2008, the trial court entered an amended judgment in the case, finding that the defendants are jointly and severally liable for funding the cost of a court-supervised smoking cessation program and ordered the defendants to deposit approximately $263 million together with interest from June 30, 2004, into a trust for the funding of the program. The court also stated that it would favorably consider a motion to return to defendants a portion of unused funds at the close of each program year in the event the monies allocated for the preceding program year were not fully expended because of a reduction in class size or underutilization by the remaining plaintiffs. In December 2008, the trial court judge signed an order granting the defendants an appeal from the amended judgment. In April 2010, the court of appeals amended but largely affirmed the trial court's July 2008 judgment and ordered the defendants to deposit with the court $242 million with judicial interest from July 21, 2008, until paid. The defendants' motion for rehearing was denied. In September 2010, the defendants' application for writ of certiorari or review and their emergency motion to stay execution of judgment with the Louisiana Supreme Court were denied. In September 2010, the U.S. Supreme Court granted the defendant's motion to stay the judgment pending applicants' timely filing, and the Court's disposition, of a petition for writ of certiorari. The defendants filed a petition for writ of certiorari in the U.S. Supreme Court in December 2010. The court denied the petition in June 2011. RJR Tobacco accrued $139 million, the portions of the judgment allocated to RJR Tobacco and B&W, in the second quarter of 2011. RJR Tobacco paid the judgment in August 2011. In December 2011, the plaintiffs filed a motion for assessment of attorneys' fees and costs for the prosecution of the case. On January 6, 2012, the defendants filed exceptions and motion to strike seeking to dismiss the plaintiffs' motions, which were denied by the trial court. On April 4, 2012, the defendants filed an application for supervisory writs with the Louisiana Fourth Circuit Court of Appeal. A decision is pending. Hearings are scheduled on the plaintiffs' motion for attorneys' fees on June 18, 2012. Discovery is underway. REYNOLDS AMERICAN: "Thompson" Class Suit vs. Unit Remains Stayed ---------------------------------------------------------------- The class action lawsuit captioned Thompson v. R. J. Reynolds Tobacco Co. remains stayed in Minnesota, Reynolds American Inc. disclosed in its April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. In Thompson v. R. J. Reynolds Tobacco Co., a case filed in February 2005 in District Court, Hennepin County, Minnesota, RJR Tobacco removed the case to the U.S. District Court for the District of Minnesota. In October 2007, the U.S. District Court remanded the case to state district court. In May 2009, the court entered an agreed scheduling order that bifurcates merits and class certification discovery. The parties were engaged in class certification discovery. In July 2009, the plaintiffs in this case and in Dahl v. R. J. Reynolds Tobacco Co. filed a motion to consolidate for discovery and trial. In October 2009, the court companioned the two cases and reserved its ruling on the motion to consolidate, which it said will be reevaluated as discovery progresses. In February 2010, a stipulation and order was entered to stay proceedings in this case and in Dahl until completion of all appellate review in Curtis v. Altria Group, Inc. There is currently no activity in the case. REYNOLDS AMERICAN: Trial in "Brown" Class Suit Set for October 5 ---------------------------------------------------------------- Trial in a California class action lawsuit involving a subsidiary of Reynolds American Inc. is scheduled for October 5, 2012, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. On April 11, 2001, in Brown v. American Tobacco Co., Inc., a case filed in June 1997 in Superior Court, San Diego County, California, the court granted in part the plaintiffs' motion for certification of a class composed of residents of California who smoked at least one of the defendants' cigarettes from June 10, 1993, through April 23, 2001, and who were exposed to the defendants' marketing and advertising activities in California. The action was brought against the major U.S. cigarette manufacturers, including R. J. Reynolds Tobacco Company ("RJR Tobacco") and Brown & Williamson Holdings, Inc. ("B&W"), seeking to recover restitution, disgorgement of profits and other equitable relief under California Business and Professions Code Section 17200 et seq. and Section 17500 et seq. However, the underlying substantive claims have been reduced to include primarily allegations regarding the use of the descriptor "lights" and statements made during the class period about the health risks of cigarettes. Certification was granted as to the plaintiffs' claims that the defendants violated Section 17200 of the California Business and Professions Code pertaining to unfair competition. The court, however, refused to certify the class under the California Legal Remedies Act and on the plaintiffs' common law claims. In March 2005, the court granted the defendants' motion to decertify the class, and in September 2006, the California Court of Appeal affirmed the order decertifying the class. In November 2006, the plaintiffs' petition for review with the California Supreme Court was granted, and in May 2009, the court reversed the decision of the trial court, and the California Court of Appeal that decertified the class and remanded the case to the trial court for further proceedings. In March 2010, the trial court found that the plaintiffs' "lights" claims were not preempted by the Federal Cigarette Labeling and Advertising Act and denied the defendants' second motion for summary judgment. The plaintiffs filed a tenth amended complaint in September 2010. RJR Tobacco and B&W filed their answers to the complaint. Subsequently, on February 24, 2011, the court found that the named class representatives were not adequate, were not typical, and lacked standing. The plaintiffs' motion for reconsideration was denied. The court granted the plaintiffs' motion to amend the complaint by adding new class representatives and denied the defendants' motion to dismiss. The plaintiffs filed an eleventh amended complaint adding new class representatives in July 2011. Trial is scheduled for October 5, 2012. The defendants have filed motions challenging the standing of the newly named class representatives and to decertify the case. A hearing was scheduled for May 2, 2012. RAI says in the event RJR Tobacco and its affiliates or indemnitees lose one or more of the pending "lights" class-action lawsuits, RJR Tobacco could face bonding difficulties depending upon the amount of damages ordered, if any, which could have a material adverse effect on RJR Tobacco's, and consequently RAI's, results of operations, cash flows or financial position. REYNOLDS AMERICAN: "Turner" Suit vs. RJR Remains Pending in Ill. ---------------------------------------------------------------- A class action lawsuit against Reynolds American Inc.'s subsidiary, R. J. Reynolds Tobacco Company, remains pending in Illinois, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. In Turner v. R. J. Reynolds Tobacco Co., a case filed in February 2000 in Circuit Court, Madison County, Illinois, a judge certified a class in November 2001. In June 2003, RJR Tobacco filed a motion to stay the case pending Philip Morris's appeal of the Price v. Philip Morris Inc. case, which the judge denied in July 2003. In October 2003, the Illinois Fifth District Court of Appeals denied RJR Tobacco's emergency stay/supremacy order request. In November 2003, the Illinois Supreme Court granted RJR Tobacco's motion for a stay pending the court's final appeal decision in Price. On October 11, 2007, the Illinois Fifth District Court of Appeals dismissed RJR Tobacco's appeal of the court's denial of its emergency stay/supremacy order request and remanded the case to the circuit court. A status conference occurred on April 25, 2012. REYNOLDS AMERICAN: Unit Got Favorable Judgment in "Smith" Suit -------------------------------------------------------------- A Kansas court granted in March 2012 summary judgment in favor of Reynolds American Inc.'s subsidiary, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. A number of tobacco wholesalers and consumers have sued U.S. cigarette manufacturers, including R. J. Reynolds Tobacco Company ("RJR Tobacco") and Brown & Williamson Holdings, Inc. ("B&W"), in federal and state courts, alleging that cigarette manufacturers combined and conspired to set the price of cigarettes in violation of antitrust statutes and various state unfair business practices statutes. In these cases, the plaintiffs asked the court to certify the lawsuits as class actions on behalf of other persons who purchased cigarettes directly or indirectly from one or more of the defendants. As of March 31, 2012, all of the federal and state court cases on behalf of indirect purchasers had been dismissed. In Smith v. Philip Morris Cos., Inc., a case filed in February 2000, and pending in District Court, Seward County, Kansas, the court granted class certification in November 2001, in an action brought against the major U.S. cigarette manufacturers, including RJR Tobacco and B&W, and the parent companies of the major U.S. cigarette manufacturers, including R.J. Reynolds Tobacco Holdings, Inc. ("RJR"), seeking to recover an unspecified amount in actual and punitive damages. The plaintiffs allege that the defendants participated in a conspiracy to fix or maintain the price of cigarettes sold in the United States. In an opinion dated March 23, 2012, the court granted summary judgment in favor of RJR Tobacco and B&W on the plaintiff's claims. REYNOLDS AMERICAN: "Young" Class Suit vs. Unit Remains Stayed ------------------------------------------------------------- In Young v. American Tobacco Co., Inc., a case filed in November 1997 in Circuit Court, Orleans Parish, Louisiana, the plaintiffs brought an environmental tobacco smoke ("ETS") class action against U.S. cigarette manufacturers, including Reynolds American Inc.'s subsidiary, R. J. Reynolds Tobacco Company ("RJR Tobacco") and Brown & Williamson Holdings, Inc. ("B&W"), and parent companies of U.S. cigarette manufacturers, including R.J. Reynolds Tobacco Holdings, Inc. ("RJR"), on behalf of all residents of Louisiana who, though not themselves cigarette smokers, have been exposed to secondhand smoke from cigarettes which were manufactured by the defendants, and who allegedly suffered injury as a result of that exposure. The plaintiffs seek to recover an unspecified amount of compensatory and punitive damages. In October 2004, the trial court stayed this case pending the outcome of the appeal in Scott v. American Tobacco Co., Inc. No further updates were reported in the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. RIDGEWOOD WATER: Chances for Rate Hike Suit Settlement Slim ----------------------------------------------------------- James Kleimann, writing for Wyckoff, reports that Glen Rock and Midland Park filed a $3.3 million class action lawsuit claiming Ridgewood funneled water utility revenue into its own municipal operating budget to avoid making hard cuts. Officials in Ridgewood say their neighbors are taking their class action lawsuit to the media because their case is weak. The class action suit filed by Wyckoff, Glen Rock and Midland Park in Bergen County's Superior Court seeks $3.3 million in refunds, charging that Ridgewood has "been engaged in sham accounting to artificially inflate the costs of the Water Utility and decrease the expenses of the village." On May 16, officials from Glen Rock, Midland Park and Wyckoff held a press conference where attorney Joseph Fiorenzo again called for the combined 26 percent rate hikes in 2010 and 2011 to be rescinded and $3.3 million refunded to ratepayers. "Generally, such tactics are used to inflame the situation due to lack of confidence in the legal merits of their case," Ridgewood Village Attorney Matt Rogers replied in a statement sent to media on May 18. Ridgewood in its statement did not address the alleged actions spelled out in the lawsuit. The suit alleges the village has funneled hundreds of thousands of dollars to subsidize its police and fire departments, its engineering department, the municipal attorney, expensive health and pension obligations, among others. The alleged bilking between 2004-2009 led to an operating loss for the utility, Mr. Fiorenzo said, adding that had the books been done properly, the utility would have shown a substantial profit. "Evidence revealed . . . that there was no 'loss' to justify the extraordinary water rate increase," Mr. Fiorenzo wrote in a statement. "Rather, Ridgewood has been bilking the ratepayers of Wyckoff, Glen Rock and Midland Park by having the ratepayers pay for a substantial portion of the operating expenses of the Village of Ridgewood." His statements came less than a week after mediation between the parties hit a dead end. Mr. Rogers in his statement said the village would shirk the media spotlight, claiming its preference to continue a "good faith and responsible effort" to keep water prices low for all Ridgewood Water ratepayers. "On behalf of the Village of Ridgewood and Ridgewood Water, we continue to scrutinize the applicable law and remain confident in our case and the legal process," he wrote. Officials in the village have publicly maintained they've done nothing wrong and have in the past called the suit "bombastic" but "baseless." They've been quick to point out Ridgewood Water rates are significantly lower than that of most neighboring utilities and have previously stated the rate hikes were needed to keep the utility financially solvent. The lawsuit seeks to rescind the dual rate hikes while refunding $1.64 million to Wyckoff, $1.04 million to Glen Rock, and $619,000 to Midland Park. Sources have said there appears a slim chance the two parties reach a settlement. Once the discovery period concludes, the case is likely to be heard by Judge Menelaos Toskos. SANTA MONICA: MALDEF Files Class Suit Over Wage Violations ---------------------------------------------------------- Jenna Chandler, writing for SantaMonicaPatch, reports that four Los Angeles car washers sued their employers on May 21 seeking unpaid wages and restitution for time they allegedly worked off the clock, without overtime pay and without rest or meal breaks. The class action lawsuit was filed against the owners of three carwashes, including ones in Venice and Santa Monica, on behalf of "washeros" Esteban H. Carmona, Marcial H. Carmona, Anselmo Leyva and Pedro Cruz. "These three car washes denied the workers the wages they are entitled to," said Mexican American Legal Defense and Educational Fund attorney Nicholas Espiritu. He said the businesses devised a "systemic practice designed to maximize the amount of work they get out of their workers while minimizing the pay that they get." Named in the lawsuit are Santa Monica Car Wash and Detailing at 2510 Pico Blvd. in Santa Monica, Millennium Car Wash at 2454 Lincoln Blvd. in Venice and Bubble Bee Car Wash at 2711 Del Amo Blvd. in Lakewood, owned by Edna, Bijan and Kambiz Damavandi. Mr. Espiritu said the four car washers were regularly required to arrive to work up to 30 minutes early, but were not allowed to clock in until there were enough cars to wash. Workers who did not report to work early were punished in various ways, according to the suit, which alleges the car wash owners also required employees to buy materials for work and intentionally issued inaccurate work records in an effort to conceal unlawful labor practices. State law requires that employees get a meal break after no more than five hours of work or that they receive compensation for the day the meal is not provided, according to the suit, which alleges that management at the car washes prohibited meal breaks or delayed them past the five hour cut-off without compensation. The car wash owners could not be reached for comment. A woman who answered the phone at Millennium Car Wash said the company management was not on-site and she did not know their reaction to the suit. The MALDEF lawsuit seeks unpaid wages spanning the past four years for as many as 100 workers employed during that time. It also seeks an injunction against each of the car washes. At a press conference on May 21 in Santa Monica, Maria Elena Durazo, of the Los Angeles County Federation of Labor, AFL-CIO, said there is a pattern of abuse in the car wash industry. "Here we go again," she said. "Wage theft is still occurring every day in Los Angeles County." Earlier this year, the state Attorney General's office announced settlement of a lawsuit it had filed against eight other California car washes -- including Bonus Car Wash in Santa Monica -- over similar accusations as those levied on May 21 against the Damavandi family. Months before the settlement, Bonus Car Wash became the first in Southern California to unionize. On May 21, Ms. Durazo urged Santa Monica customers to patronize Bonus Car Wash, and called on the Santa Monica City Council "to stand up and defend these workers." Additional car washers and members of other local unions, Clergy and Laity United for Economic Justice and Santa Monica-Malibu Unified School District Board of Education member Oscar de la Torre were also in attendance at the May 21 press conference. They opened the event with chants, "up with the workers, yeah yeah! Down with the bosses, boo, boo!" and closed it with, "si se puede!" SERVICE CORP: Antitrust Suit Dismissal Appeal Remains Pending ------------------------------------------------------------- Service Corporation International is named as a defendant in an antitrust case filed in 2005. The case is Cause No 4:05-CV-03394; Funeral Consumers Alliance, Inc. v. Service Corporation International, et al.; in the United States District Court for the Southern District of Texas -- Houston ("Funeral Consumers Case"). This was a purported class action on behalf of casket consumers throughout the United States alleging that the Company and several other companies involved in the funeral industry violated federal antitrust laws and state consumer laws by engaging in various anti-competitive conduct associated with the sale of caskets. Based on the case proceeding as a class action, the plaintiffs filed an expert report indicating that the damages sought from all defendants range from approximately $950 million to $1.5 billion, before trebling. However, the trial court denied the plaintiffs' motion to certify the case as a class action. The Company denies that it engaged in anticompetitive practices related to its casket sales, and it has filed reports of its experts, which vigorously dispute the validity of the plaintiffs' damages theories and calculations. The trial court dismissed plaintiffs' claims on September 24, 2010, and the plaintiffs filed an appeal on October 19, 2010. The Company says it cannot quantify its ultimate liability, if any, in this lawsuit. No further updates were reported in the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. SERVICE CORP: Appeal in "Garcia" Class Suit Remains Pending ----------------------------------------------------------- Service Corporation International's appeal from an order certifying a class in the lawsuit initiated by Reyvis Garcia and Alicia Garcia against its subsidiary remains pending, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. Reyvis Garcia and Alicia Garcia v. Alderwoods Group, Inc., Osiris Holding of Florida, Inc., a Florida corporation, d/b/a Graceland Memorial Park South, f/k/a Paradise Memorial Gardens, Inc., was filed in December 2004, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, Case No. 04-25646 CA 32. Plaintiffs are the son and sister of the decedent, Eloisa Garcia, who was buried at Graceland Memorial Park South in March 1986, when the cemetery was owned by Paradise Memorial Gardens, Inc. Initially, the lawsuit sought damages on the individual claims of the plaintiffs relating to the burial of Eloisa Garcia. Plaintiffs claimed that due to poor recordkeeping, spacing issues and maps, and the fact that the family could not afford to purchase a marker for the grave, the burial location of the decedent could not be readily located. Subsequently, the decedent's grave was located and verified. In July 2006, plaintiffs amended their complaint, seeking to certify a class of all persons buried at this cemetery whose burial sites cannot be located, claiming that this was due to poor recordkeeping, maps, and surveys at the cemetery. Plaintiffs subsequently filed a third amended class action complaint and added two additional named plaintiffs. The plaintiffs are seeking unspecified monetary damages, as well as equitable and injunctive relief. On May 4, 2011, the trial court certified a class and the Company is appealing that ruling. No further updates were reported in the Company's latest SEC filing. The Company says it cannot quantify its ultimate liability, if any, for the payment of any damages. SERVICE CORP: Awaits Ruling on Class Cert. Bid in "Sands" Suit -------------------------------------------------------------- Service Corporation International is awaiting a court decision on plaintiffs' motion for class certification in the lawsuit commenced by F. Charles Sands, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. The case, captioned F. Charles Sands, individually and on behalf of all others similarly situated, v. Eden Memorial Park, et al.; Case No. BC421528; in the Superior Court of the State of California for the County of Los Angeles -- Central District, was filed in September 2009 against SCI and certain subsidiaries regarding the Company's Eden Memorial Park cemetery in Mission Hills, California. The plaintiff seeks to certify a class of cemetery plot owners and their families. The plaintiff seeks compensatory, consequential and punitive damages as well as the appointment of a receiver to oversee cemetery operations. The plaintiff claims the cemetery damaged and desecrated burials in order to prepare adjoining graves for subsequent burials. In February 2012, the court held a hearing on the plaintiff's motion for class certification and, so far, no order has been issued relating to that hearing. The Company says it cannot quantify its ultimate liability, if any, for the payment of any damages. SERVICE CORP: Defends Wage and Hour Suits in Various States ----------------------------------------------------------- Service Corporation International (SCI) is defending class action lawsuits commenced in various states alleging violations of wage and hour laws, according to the Company's April 26, 2012, Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. The Company is named a defendant in various lawsuits alleging violations of federal and state laws regulating wage and hour overtime pay, including but not limited to the Prise, Bryant, Bryant, Helm, Stickle, and Southern lawsuits. The lawsuit, captioned Prise, et al., v. Alderwoods Group, Inc., and Service Corporation International; Cause No. 06-164; in the United States District Court for the Western District of Pennsylvania (the "Wage and Hour Lawsuit"), was filed by two former Alderwoods (Pennsylvania), Inc. employees in December 2006 and purports to have been brought under the Fair Labor Standards Act ("FLSA") on behalf of all Alderwoods and SCI-affiliated employees who performed work for which they were not fully compensated, including work for which overtime pay was owed. Although the court initially conditionally certified a class of claims as to certain job positions for Alderwoods employees, the court granted the Company's motion to decertify the class on September 9, 2011. Plaintiffs allege causes of action for violations of the FLSA, failure to maintain proper records, breach of contract, violations of state wage and hour laws, unjust enrichment, fraud and deceit, quantum meruit, negligent misrepresentation, and negligence. Plaintiffs seek injunctive relief, unpaid wages, liquidated, compensatory, consequential and punitive damages, attorneys' fees and costs, and pre- and post-judgment interest. The Company says it cannot quantify the Company's ultimate liability, if any, in this lawsuit. The lawsuit captioned Bryant, et al. v. Alderwoods Group, Inc., Service Corporation International, et al.; Case No. 3:07-CV-5696- SI; in the U.S. District Court for the Northern District of California, was filed on November 8, 2007, against SCI and various subsidiaries and individuals. It is related to the Wage and Hour Lawsuit, raising similar claims and brought by the same attorneys. This lawsuit has been transferred to the U.S. District Court for the Western District of Pennsylvania and is now Case No. 08-CV- 00891-JFC. The Company says it cannot quantify its ultimate liability, if any, in this lawsuit. The cases, Bryant, et al. v. Service Corporation International, et al.; Case No. RG-07359593; and Helm, et al. v. AWGI & SCI; Case No. RG-07359602; in the Superior Court of the State of California, County of Alameda, were filed on December 5, 2007, by counsel for plaintiffs in the Wage and Hour Lawsuit. These cases assert state law claims similar to the federal claims asserted in the Wage and Hour Lawsuit. These cases were removed to federal court in the U.S. District Court for the Northern District of California, San Francisco/Oakland Division. The Bryant case is now Case No. 3:08- CV-01190-SI and the Helm case is now Case No. C 08-01184-SI. On December 29, 2009, the court in the Helm case denied the plaintiffs' motion to certify the case as a class action. The plaintiffs modified and refiled their motion for certification. On March 9, 2011, the court denied plaintiffs' renewed motions to certify a class in both of the Bryant and Helm cases. The plaintiffs have also (i) filed additional lawsuits with similar allegations seeking class certification of state law claims in different states, and (ii) made a large number of demands for arbitration. The Company says it cannot quantify its ultimate liability, if any, in these lawsuits. Counsel for plaintiffs in the Wage and Hour Lawsuit filed a case captioned Stickle, et al. v. Service Corporation International, et al.; Case No. 08-CV-83; in the U.S. District Court for Arizona, Phoenix Division, on January 17, 2008, against SCI and various related entities and individuals asserting FLSA and other ancillary claims based on the alleged failure to pay for overtime. In September 2009, the Court conditionally certified a class of claims as to certain job positions of SCI affiliated employees. On April 20, 2011, the court granted the Company's motion to decertify the class. The Company says it cannot quantify its ultimate liability, if any, in this lawsuit. This lawsuit, Southern, et al. v. SCI Kentucky Funeral Services, Inc.; Case No. 11CIO6501; in the Jefferson Circuit Court, Division Eight, Kentucky, was filed on October 6, 2011, against an SCI subsidiary and purports to have been brought on behalf of employees who worked in Kentucky as funeral directors. The plaintiffs allege causes of action for various violations of Kentucky wage and hour laws, and breach of contract. Plaintiffs seek unpaid wages, compensatory and exemplary relief, damages, attorneys' fees and costs, and pre- and post judgment interest. The Company says it cannot quantify its ultimate liability, if any, in this lawsuit. SERVICE CORP: Faces "Baio" Class Action Suit in Florida ------------------------------------------------------- Service Corporation International is facing a class action lawsuit filed by Michele Baio in Florida, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. Michele Baio, individually and on behalf of all others similarly situated v. Beth David Memorial Gardens, Inc. et al.; Case No. 502012CA006532MB, was filed in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County of Florida. This case was filed by counsel for plaintiffs in the lawsuits commenced by F. Charles Sands, and David Zinn and Michael Graff on April 5, 2012, regarding the Beth David Memorial Gardens and Chapel located in Hollywood, Florida. Although the Company acquired the cemetery in connection with its 2006 acquisition of Alderwoods Group, Inc., the Company never managed the cemetery and sold it to a third party shortly after closing on the Alderwoods acquisition. The plaintiff seeks to certify a class of cemetery plot owners and their families. The plaintiff alleges the cemetery engaged in wrongful burial operations and did not disclose them to customers. The plaintiff seeks compensatory, consequential and punitive damages as well as the appointment of a receiver to oversee cemetery operations. The Company says it cannot quantify its ultimate liability, if any, for the payment of any damages. SERVICE CORP: Faces "Zinn" Class Action Suit in Florida ------------------------------------------------------- Service Corporation International is facing a class action lawsuit in Florida, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. The case, captioned David Zinn and Michael Graff, individually and on behalf of all others similarly situated v. Service Corporation International, et al.; Case No. 502012CA006536MB, in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County of Florida, was filed by counsel for plaintiffs in the lawsuit commenced by F. Charles Sands on April 5, 2012, regarding the Company's Star of David Memorial Gardens Cemetery and Funeral Chapel & Bailey Memorial Gardens located in North Lauderdale, Florida. The plaintiffs seek to certify a class of cemetery plot owners and their families. The plaintiffs allege the cemetery engaged in wrongful burial operations and did not disclose them to customers. The plaintiffs seek compensatory, consequential and punitive damages as well as the appointment of a receiver to oversee cemetery operations. The Company says it cannot quantify its ultimate liability, if any, for the payment of any damages. SINCLAIR IMPORTS: Recalls Threadless Carbon Bike Handlebar Stem --------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with distributors, Sinclair Imports, of Reno, Nevada, and Quality Bicycle Products, of Bloomington, Minnesota, and manufacturer, Race Productions NV, Belgium, announced a voluntary recall of about 105 units of 4ZA Threadless Carbon Bicycle Handlebar Stem. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The bicycle handlebar stems can crack or break, posing a fall hazard. The firm received one report of a handlebar stem breaking resulting in minor injuries. The recall involves all 4ZA 31.8 threadless bicycle handlebar stems sold as individual aftermarket components. The stems are black and have the words "4ZA Cycling Performance" painted on the carbon extension between the steerer clamp and handlebar clamp. The recalled stems range in extension lengths from 90mm to 130mm, approximately 3.5 to 5 inches. A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12183.html The recalled products were manufactured in Taiwan and sold at specialty bicycle retailers and via Web sites from January 2005 through April 2010 for about $59. Consumers should immediately stop using their bicycles and contact the bicycle retailers where the stems were purchased to obtain a free replacement stem. Other bicycle shops can handle the replacement process by contacting the manufacturer's current distributor, Quality Bicycle Products, Inc. For additional information, please contact Quality Bicycle Products, Inc. ("QBP") toll-free at (877) 745-7703 between 8:00 a.m. and 6:00 p.m. Central Time Monday through Friday, or visit http://www.ridley- bikes.com/ SWIFT TRANSPORTATION: Black Truck Drivers Lose Class Cert. Bid -------------------------------------------------------------- Lorraine Bailey at Courthouse News Service reports that a federal judge refused to certify a class of black truck drivers who claim they get less profitable routes because of their race. Lead plaintiff Steve Bluford claimed that Swift Transportation fired him in 2009 after two years on the job because he is black. The truck driver filed a discrimination charge with the Equal Employment Opportunity Commission one week after his firing from Swift, which claims to be the largest trucking company in the world with more than 16,000 trucks, 40 facilities in the U.S. and Mexico, and $3.4 billion in revenues. Though Mr. Bluford's EEOC charge did not include classwide allegations, he claimed that "the managers showed favoritism towards the drivers of non color by assigning them the better routes and more profitable deliveries compared to the assignments that their counterparts would get. They would also be assigned the trucks that were in better operating conditions to these same persons." Mr. Bluford filed a class action against the trucking giant for race discrimination after his EEOC charge failed. The federal complaint alleged that Mr. Bluford's fleet manager, Donovan Rood, treated black employees differently than white employees, once stating, "I am sick of babysitting these [expletive] monkeys." As a result of Mr. Rood's discrimination, Mr. Bluford said black employees received less lucrative routes, assignments and promotions. Mr. Rood's actions were especially injurious because truckers are paid based on the distance of a route and the time of day it is driven, according to the complaint. Last week, U.S. District Judge Virginia Kendall dismissed Mr. Bluford's class allegations, agreeing with Swift that "a Title VII plaintiff can only bring those claims in his complaint in federal court that were included in his original EEOC charge." "Bluford's EEOC charge does not include any allegations of class- wide discrimination," Judge Kendall wrote. "Bluford's charge states only that 'I have been harassed on numerous occasions by Donavon and by younger employees who work there. Also, because I gross more pay than them; they have Retaliated against me. I believe that I have been discriminated against on the basis of my Race, Black and Retaliated against . . .' (emphasis supplied)." "All of the language in the charge specifically references Bluford as an individual and his treatment by Swift as an individual," Judge Kendall added. "Because the original charge contains no reference to any class- wide allegations, the amendment may not introduce those charges for the first time and expand the scope of the allegations in the charge." The judge did uphold the individual discrimination claims over Mr. Bluford's allegedly less desirable assignments, termination and mistreatment. A copy of the Memorandum Opinion and Order in Bluford v. Swift Transportation, Case No. 11-cv-06932 (N.D. Ill.) (Kendall, J.), is available at: http://www.courthousenews.com/2012/05/22/Swift.pdf TEMPUR-PEDIC: Jacobs' Plea for En Banc Review Remains Pending ------------------------------------------------------------- On January 5, 2007, a purported class action was filed against Tempur-Pedic International Inc. in the United States District Court for the Northern District of Georgia, Rome Division (Jacobs v. Tempur-Pedic International, Inc. and Tempur-Pedic North America, Inc., or the Antitrust Action). The Antitrust Action alleges violations of federal antitrust law arising from the pricing of Tempur-Pedic mattress products by Tempur-Pedic North America and certain distributors. The action alleges a class of all purchasers of Tempur-Pedic mattresses in the United States since January 5, 2003, and seeks damages and injunctive relief. Count Two of the complaint was dismissed by the court on June 25, 2007, based on a motion filed by the Company. Following a decision issued by the United States Supreme Court in Leegin Creative Leather Prods., Inc. v. PSKS, Inc. on June 28, 2007, the Company filed a motion to dismiss the remaining two counts of the Antitrust Action on July 10, 2007. On December 11, 2007, that motion was granted and, as a result, judgment was entered in favor of the Company and the plaintiffs' complaint was dismissed with prejudice. On December 21, 2007, the plaintiffs filed a "Motion to Alter or Amend Judgment," which was fully briefed. On May 1, 2008, that motion was denied. Jacobs appealed the dismissal of their claims, and the parties argued the appeal before the United States Circuit Court for the Eleventh Circuit on December 11, 2008. The Court rendered an opinion favorable to the Company on December 2, 2010, affirming the trial court's refusal to allow Jacobs to alter or amend its pleadings and dismissing its claims. Jacobs has subsequently petitioned the 11th Circuit Court of Appeals for an "en banc" review of the three judge panel's ruling. No further updates were reported in the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. The Company continues to strongly believe that the Antitrust Action lacks merit, and intends to defend against the claims vigorously. Based on the findings of the court to date and an assessment of the Company's meritorious defenses, the Company believes that it is remote that it will incur a loss with respect to this matter. However, due to the inherent uncertainties of litigation, the Company cannot predict the outcome of the Antitrust Action at this time, and can give no assurance that these claims will not have a material adverse affect on the Company's financial position or results of operations. TENET HEALTH: Faces Class Action Over Undisclosed Hospital Fees --------------------------------------------------------------- Greta Weiderman, writing for St. Louis Business Journal, reports that John and Patricia Thomas of St. Louis have filed a class action lawsuit in St. Louis County Circuit Court against Tenet Health Systems. The lawsuit seeks to recover the amounts that Saint Louis University Hospital and Des Peres Hospital, both owned by Tenet, have charged for what the suit alleges are misleading and undisclosed "hospital" facility fees for non-hospital services at doctors' offices and outpatient clinics affiliated with those hospitals, according to a press release by the Thomases' lawyer, the C. Marshall Friedman Law Offices. "Tenet's practices regarding charging hospital facility fees for outpatient visits is misleading, deceptive and improper," their attorney Robert Friedman said in a statement. "Patients have no idea that by walking into one doctor's office instead of another's, they will pay hundreds of dollars more for the same simple in-office procedure. And Tenet tries to reassure its patients that its billing changes will not affect their bottom line when in fact these patients are paying much more for the same doctor's visits." Officials from Tenet requested time to review the lawsuit before making a comment. Dallas-based Tenet Healthcare Corp. owns Saint Louis University Hospital and Des Peres Hospital. Saint Louis University Hospital is a 356-bed academic teaching hospital, and Des Peres Hospital is a 143-bed acute care community hospital. Dallas-based Tenet is the 11th largest public company in North Texas, with $9.2 billion in revenue last year, according to Dallas Business Journal research. TIM W.E. SGPS: Still Awaits Order on Bid to Dismiss Suit v. Unit ---------------------------------------------------------------- On December 1, 2010, the Brazilian Federal Public Prosecutor filed a class-action lawsuit against TIM w.e. SGPS, S.A.'s Brazilian subsidiary, Total Spin Brasil Servicos de Telecomunicacoes Ltda. ("Total Spin"), and Globo Participacoes e Comunicacoes S.A. (TV Globo) before the 11th Federal Civil Court of Sao Paulo in connection with Total Spin's participation in the marketing campaign "Torpedao Campeao", alleging that misleading statements made in connection with the campaign caused collective damages to consumers and seeking R$7 million in restitution of amounts paid by consumers during the campaign and collective moral damages. On March 10, 2011, Total Spin submitted a challenge seeking to reduce the damages claim to R$0.1 million. On March 25, 2011, Total Spin filed a response memorandum seeking full dismissal of the lawsuit. No further updates were reported in the Company's April 26, 2012, Form F-1/A filing with the U.S. Securities and Exchange Commission. The Company believes the claim is likely to be dismissed by the court on the basis that a similar claim has already been dismissed by the court for lack of evidence in pretrial stages. The Company believes this claim is without merit and intends to contest it vigorously. TIME WARNER: Appeal From Dismissal of Set-Top Cable MDL Pending ---------------------------------------------------------------- Time Warner Cable Inc. is the defendant in In re: Set-Top Cable Television Box Antitrust Litigation, ten purported class actions filed in federal district courts throughout the U.S. These actions are subject to a Multidistrict Litigation ("MDL") Order transferring the cases for pretrial proceedings to the U.S. District Court for the Southern District of New York. On July 26, 2010, the plaintiffs filed a third amended consolidated class action complaint (the "Third Amended Complaint"), alleging that the Company violated Section 1 of the Sherman Antitrust Act, various state antitrust laws and state unfair/deceptive trade practices statutes by tying the sales of premium cable television services to the leasing of set-top converter boxes. The plaintiffs are seeking, among other things, unspecified treble monetary damages and an injunction to cease such alleged practices. On September 30, 2010, the Company filed a motion to dismiss the Third Amended Complaint, which the court granted on April 8, 2011. On June 17, 2011, the plaintiffs appealed this decision to the U.S. Court of Appeals for the Second Circuit. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. No further updates were reported in the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. TIME WARNER: 2nd Cir. Appeal in "Swinegar" Suit Remains Pending --------------------------------------------------------------- On November 14, 2008, the plaintiffs in Mark Swinegar, et al. v. Time Warner Cable Inc., filed a second amended complaint in the Los Angeles County Superior Court, as a purported class action, alleging that the Company provided to and charged the plaintiffs for equipment that they had not affirmatively requested in violation of the proscription in the Cable Consumer Protection and Competition Act of 1992 (the "Cable Act") against "negative option billing" and that such violation was an unlawful act or practice under California's Unfair Competition Law (the "UCL"). The plaintiffs are seeking restitution under the UCL and attorneys' fees. On February 23, 2009, the court denied the Company's motion to dismiss the second amended complaint and, on July 29, 2010, the court denied the Company's motion for summary judgment. On October 7, 2010, the Company filed a petition for a declaratory ruling with the Federal Communications Commission ("FCC") requesting that the FCC determine whether the Company's general ordering process complies with the Cable Act's "negative option billing" restriction. On March 1, 2011, the FCC issued a declaratory ruling finding that informed consent is adequate to satisfy the requirements under the Cable Act. On March 29, 2011, the Los Angeles County Superior Court vacated its prior summary judgment ruling and, on May 12, 2011, the court granted the Company's motion for summary judgment. On June 13, 2011, the plaintiffs filed a motion for reconsideration of the decision, which the court denied on July 28, 2011. On September 26, 2011, the plaintiffs filed a notice of appeal to the California Court of Appeals for the Second District. No further updates were reported in the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. TIME WARNER: Appeal From "Fink" Suit Dismissal Remains Pending -------------------------------------------------------------- An appeal from the dismissal of the class action lawsuit captioned Jessica Fink and Brett Noia, et al. v. Time Warner Cable Inc. remains pending, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. On August 7, 2009, the plaintiffs in Jessica Fink and Brett Noia, et al. v. Time Warner Cable Inc., filed an amended complaint in a purported class action in the U.S. District Court for the Southern District of New York alleging that the Company uses a throttling technique which intentionally delays and/or blocks a user's high- speed data service. The plaintiffs are seeking unspecified monetary damages, injunctive relief and attorneys' fees. On September 6, 2011, the district court partially granted the Company's motion for summary judgment and/or for partial judgment on the pleadings, but denied the motion as to two claims under the Computer Fraud and Abuse Act of 1986 ("CFAA") and one common law fraud claim. On October 28, 2011, the district court granted the Company's motion for reconsideration and dismissed the CFAA claims with prejudice. On September 30, 2011, the plaintiffs filed a second amended complaint and, on December 23, 2011, the district court granted with prejudice the Company's motion to dismiss the plaintiffs' second amended complaint, terminating the action. On January 23, 2012, the plaintiffs appealed this decision to the U.S. Court of Appeals for the Second Circuit. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. TIME WARNER: "Brantley" Plaintiffs Ask for En Banc Rehearing ------------------------------------------------------------ Plaintiffs in Brantley, et al. v. NBC Universal, Inc., et al., filed in April 2012 a petition for en banc rehearing in connection with an appeals court's affirmation of the dismissal of their lawsuit, Time Warner Cable Inc. disclosed in its April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. On September 20, 2007, Brantley, et al. v. NBC Universal, Inc., et al. was filed in the U.S. District Court for the Central District of California against the Company. The complaint, which also named as defendants several other cable and satellite providers (collectively, the "distributor defendants") as well as programming content providers (collectively, the "programmer defendants"), alleged violations of Sections 1 and 2 of the Sherman Antitrust Act. Among other things, the complaint alleged coordination between and among the programmer defendants to sell and/or license programming on a "bundled" basis to the distributor defendants, who in turn purportedly offer that programming to subscribers in packaged tiers, rather than on a per channel (or "a la carte") basis. The plaintiffs, who seek to represent a purported nationwide class of cable and satellite subscribers, are seeking, among other things, unspecified treble monetary damages and an injunction to compel the offering of channels to subscribers on an "a la carte" basis. On December 3, 2007, the plaintiffs filed an amended complaint in this action that, among other things, dropped the Section 2 claims and all allegations of horizontal coordination. On October 15, 2009, the district court granted with prejudice a motion by the distributor defendants and the programmer defendants to dismiss the plaintiffs' third amended complaint, terminating the action. On April 19, 2010, the plaintiffs appealed this decision to the U.S. Court of Appeals for the Ninth Circuit and, on June 3, 2011, the court reaffirmed the district court's decision. On July 7, 2011, the plaintiffs filed a petition for en banc rehearing and, on October 31, 2011, the U.S. Court of Appeals for the Ninth Circuit withdrew the June 3, 2011 decision and directed that the appellate panel be reconstituted to consider the plaintiffs' appeal. On March 30, 2012, a reconstituted panel affirmed the district court's dismissal of the plaintiff's third amended complaint and, on April 10, 2012, the plaintiffs filed another petition for en banc rehearing. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. TIME WARNER: Continues to Defend "Downs" Class Suit vs. Insight --------------------------------------------------------------- Time Warner Cable Inc. is defending a class action lawsuit commenced by Michelle Downs and Laurie Jarrett against its subsidiary, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012. On August 9, 2010, the plaintiffs in Michelle Downs and Laurie Jarrett, et al. v. Insight Communications Company, L.P. filed a second amended complaint in the U.S. District Court for the Western District of Kentucky, as a purported class action, alleging that the Company's subsidiary, Insight Communications Company, L.P., violated Section 1 of the Sherman Antitrust Act by tying the sales of premium cable television services to the leasing of set-top converter boxes, which is similar to the federal claim in In re: Set-Top Cable Television Box Antitrust Litigation. The plaintiffs are seeking, among other things, unspecified treble monetary damages and an injunction to cease such alleged practices. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. TYCO INTERNATIONAL: Settled Colorado Class Suit in April 2012 ------------------------------------------------------------- A class action lawsuit initiated in Colorado was settled in April 2012, Tyco International Ltd. said in its April 26, 2012, Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 30, 2012. In 2002, the SEC's Division of Enforcement conducted an investigation related to past accounting practices for dealer connect fees that ADT had charged to its authorized dealers upon purchasing customer accounts. ADT Security Services, originally American District Telegraph, now also known as simply ADT, is a division of Tyco International and a worldwide supplier of electronic security systems, fire alarm systems, communication systems, and integrated building management systems. The investigation related to accounting practices employed by the Company's former management, which were discontinued in 2003. Although the Company settled with the SEC in 2006, a number of former dealers and related parties have filed lawsuits against the Company in the United States and in other countries, including a class action lawsuit filed in the District Court of Arapahoe County, Colorado, alleging breach of contract and other claims related to ADT's decision to terminate certain authorized dealers in 2002 and 2003. In February 2010, the Court granted a directed verdict in ADT's favor dismissing a number of the plaintiffs' key claims. Upon appeal, the Colorado Court of Appeals affirmed the verdict in ADT's favor in October 2011. The parties agreed to settle this matter in April 2012 with no cash consideration being paid by either side, which is subject to final court approval. Although the Company has favorably resolved the class action lawsuit in Colorado, a number of claims related to the 2002 and 2003 decision to terminate certain authorized dealers outside the United States remain outstanding. During the second quarter of fiscal 2012, the Company says it recorded its best estimate of probable loss related to these outstanding claims. While it is not possible at this time to predict the final outcome of these lawsuits, the Company does not believe these claims will have a material adverse effect on the Company's financial position, results of operations or cash flows. TYCO INTERNATIONAL: Unit Faces TCPA Violations Class Suits ---------------------------------------------------------- Tyco International Ltd.'s ADT unit is facing class action lawsuits alleging violations of the Telephone Consumer Protection Act, according to the Company's April 26, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 30, 2012. ADT Security Services, originally American District Telegraph, now also known as simply ADT, is a division of Tyco International and a worldwide supplier of electronic security systems, fire alarm systems, communication systems, and integrated building management systems. ADT has been named as a defendant in two punitive class actions that were filed on behalf of purported classes of persons who claim to have received unsolicited "robocalls" in contravention of the U.S. Telephone Consumer Protection Act ("TCPA"). These lawsuits were brought by plaintiffs seeking class action status and monetary damages on behalf of all plaintiffs who allegedly received such unsolicited calls, claiming that millions of calls were made by third party entities on ADT's behalf. ADT asserts that such entities were not retained by, nor authorized to make calls on behalf of, ADT. These matters have been consolidated in the United States District Court for the Northern District of Illinois into one civil action. Each violation under the TCPA provides for $500 in statutory damages ($1,500 if a willful violation is shown). ADT believes that it has meritorious defenses to these claims and, accordingly, intends to vigorously defend against these actions. The Company has made no provision for this contingency as a reasonable estimate of loss cannot be made at this time. UNITED HEALTHCARE: Sued for Denying Mental Health Coverage ---------------------------------------------------------- ExpertClick reports that a class-action lawsuit was filed against United Healthcare Insurance Company, US Behavioral Plan, and California United Behavioral Health, which contracts with employers such as the University of California to provide mental health services to policyholders. The class-action suit alleges that these companies, which are part of United Healthcare Insurance Company, have violated the California Mental Health Parity Act, which requires insurers to provide treatment for mental-health diagnoses according to "the same terms and conditions" applied to medical conditions. Specifically, the defendants are accused of denying and improperly limiting coverage by conducting concurrent and prospective reviews of routine outpatient mental health treatments when no such reviews are conducted for routine outpatient treatments for other medical conditions. Defendants are also accused of violating the Unruh Act, by discriminating against a class of persons with mental disabilities and psychiatric conditions; violating California's law prohibiting unfair competition, breaching the terms of its own insurance contract with policyholders, and the implied covenant of good faith and fair dealing. The law suit was filed in Santa Barbara Superior Court on behalf of the plaintiff, who works in Santa Barbara. Her mental health coverage was improperly reduced. She was having four weekly outpatient psychotherapy sessions. But in September 2011, she was informed that she would be limited to one weekly session for one month. Plaintiff is represented by the Los Angeles-based class-action trial lawyers of Cohen McKeon LLP, and Meiram Bendat, founder of the mental health insurance-advocacy service, Psych-Appeal. "This is an important case because it addresses an issue that impacts a wide range of people who are covered by health insurance" said lead attorney, Michael L. Cohen. "For too long, people who suffer from severe mental health issues have not received health insurance coverage on the same terms as conditions that are applied to other conditions." Specifically, the lawsuit seeks certification of a class consisting of hundreds and perhaps thousands of UC employees who were subject to improper review and denial of treatment for severe mental health illnesses. Cohen McKeon LLP -- http://www.cohenmckeon.com-- is a Los Angeles-based law firm that focuses on representing policy holders in law suits against insurance companies. For further information, please contact: Michael L. Cohen, Esq. Cohen Mckeon LLP Los Angeles, CA Telephone: (213) 413-6400 VELTI PLC: Unit, TrafficMarketplace.com in Talks Over iPhone Suit ----------------------------------------------------------------- Velti plc's subsidiary is negotiating with TrafficMarketplace.com in connection with its demand for indemnification relating to a consolidated litigation over iPhone application, according to the Company's April 26, 2012, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. In re iPhone Application Litigation is a purported nationwide class action filed in the Northern District of California against Apple Inc. and certain other parties, including the Company's subsidiary Mobclix Inc., and the result of a Multi-District Litigation consolidation of numerous class actions filed in state and federal courts throughout the United States. The action alleges that the defendants, through the promotion of software applications, or "apps", developed, marketed, and provided or sold for use with Apple's devices, improperly and unlawfully access, capture, alter and/or use personal information they obtained from "app" users. The defendants responded to the complaint via a successful pleading challenge. See In re iPhone Application Litig., 2011 WL 4403963 (N.D. Cal. Sept. 30, 2011) (Order Granting Defendants' Motions to Dismiss for Lack of Article III Standing Without Prejudice). In their amended complaint, the plaintiffs dropped several of the entities named as defendants in the initial consolidated complaint, including Mobclix, ostensibly to better their chances of surviving a second pleading challenge. A hearing regarding the remaining defendants' challenge to this amended pleading was scheduled for May 3, 2012. Defendant TrafficMarketplace.com recently demanded that Mobclix, pursuant to an agreement between the parties, defend and indemnify it for costs related to the In re iPhone Application Litigation class action. TrafficMarketplace.com and Mobclix are negotiating this demand. Mobclix was named as a defendant in a similar litigation regarding Google devices, but within several months was dismissed from that action without prejudice. Because the filed actions are in the very early stages, and due to the inherent uncertainty surrounding the litigation process, the Company says it is unable to reasonably assess the likelihood of any particular outcome of these litigations (or potential litigations) at this time. ZIMMER HOLDINGS: 7th Cir. Affirms Durom Class Action Dismissal -------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that Zimmer Holdings, the maker of a hip replacement device, did not mislead its investors about problems associated with its product, a federal appeals court has ruled. The U.S. Court of Appeals for the Seventh Circuit on May 21 ruled against two unions that hoped to initiate a class action lawsuit against Zimmer, which makes the Durom Acetabular Component. The product is known as the Durom Cup and is used to replace the socket in a hip joint. Attorneys representing the Plumbers and Pipefitters Local Union 719 Pension Fund and the Carpenters Pension Fund of West Virginia said the company hid problems with the Durom Cup from investors, but Seventh Circuit Judge Frank Easterbrook ruled that wasn't the case. Surgeon Lawrence Dorr had reported high failure rates with the Durom Cup in 2008. Zimmer made public his research and promised to investigate, concluding that his failure rate was higher than other surgeons' and owed the figure to improper surgical technique. "Zimmer did not try to hide the failures Dr. Dorr had encountered," Judge Easterbrook wrote. "Dorr made a public announcement, and so did Zimmer, which added (what was anyway evident) that lower sales and more products-liability litigation might ensure. "Three months before Dorr made his public statement in April 2008, Zimmer had announced that the Durom Cup was challenging to implant and that changes in labeling or training might be required. No one could predict how serious the problem would turn out to be, so Zimmer's decision not to try to quantify the effect (during a call with investors in January 2008) can't be treated as fraud." The plaintiffs also claimed the company delayed revealing quality- control problems at a plant in Dover, Ohio. They said the company knew of the problems in 2007 but did not disclose them in the January 2008 call. In April, the company closed some of the production lines in its plant for a month, estimating that recalls and lost sales would cost the company $70 million to $80 million. In July 2008, Zimmer cut its revenue growth and net earnings projections. The plaintiffs said the company should have used those projections during the January call. "(Q)uality control is an issue at all medical companies," Judge Easterbrook wrote. "Knowing of 'problems,' which are common, differs from knowing that a facility must be closed and some of its products recalled." Judge Easterbrook added, "The allegations of this complaint concern the problems Zimmer faced in 2008; in a different year the headaches would have come from a different plant or a different product, but the fact that these particular problems occurred -- and that information came out over time, as more news accumulated -- does not imply that any manager was lying to investors." The case was filed in Indiana's Southern District, and the Seventh Circuit's decision affirmed the decision of Judge Sarah Evans Barker. The plaintiffs are represented by Robbins Geller Rudman & Dowd in San Francisco and Cohen & Malad in Indianapolis. * Accounting-Related Securities Class Actions Up in 2011 -------------------------------------------------------- According to Accounting Class Action Filings and Settlements -- 2011 Review and Analysis, a new report by Cornerstone Research, securities class action filings that involve accounting allegations increased in 2011 from 2010, which had the lowest number of accounting case filings in recent years. Of the 188 securities class actions filed in 2011, 70 included accounting allegations, compared with 46 in 2010. This increase can be attributed in part to the number of Chinese reverse merger filings in 2011, which are significantly more likely to involve restatements of financial statements and, as a result, include alleged violations of generally accepted accounting principles. The number of accounting case filings involving financial statement restatements also increased, reversing a four-year trend of declines. In 2011, 20 accounting case filings included restatements, compared to 12 case filings in 2010. Declines in the number of financial statement restatements had been widely attributed to improved corporate governance practices as a result of the Sarbanes-Oxley Act (SOX). In 2010, however, the number of restatements by public companies increased, which may have contributed to the increase in case filings involving restatements. For the second consecutive year, more than 60 percent of accounting case filings included allegations of internal control weaknesses. Only 17 percent of initial filings with these claims were accompanied by company announcements reporting the presence of internal control weaknesses over financial reporting. During 2006 to 2011, accounting cases with internal control allegations that were accompanied by announcements of internal control weaknesses by the company tended to settle for higher amounts. In addition to the 188 new class actions, plaintiffs also filed amendments to 164 cases during 2011. Amendments frequently resulted in changes in class periods to include accounting-related announcements, including investigations of accounting irregularities by regulators, auditor resignations, or announcements of restatements of financial statements. For cases in which the class period was extended, 56 percent included new accounting allegations. Amendments also added accounting-related defendants, most often members of the audit committee. Of complaints amended in 2011, one in four named audit committee members, up from less than one in 10 in the corresponding initial filings. A sharp decline in the number of settlements occurred in 2011, and in contrast to the prior five years, accounting cases constituted less than half of the total volume of settlements. However, accounting cases continued to represent a disproportionately higher share of total settlement values. As in past years, accounting cases resulted in higher settlement outcomes, particularly for cases in which companies faced SEC actions. Commentary Dr. Elaine M. Harwood, Vice President of Cornerstone Research: -- As we approach the tenth anniversary of the passage of SOX, it is interesting to observe the increase in allegations related to SOX 404 reporting in recent years. This trend suggests that plaintiffs believe that including allegations of internal control weaknesses will bolster their position in litigation, regardless of whether material weaknesses were actually present, but settlements in recent years do not support that position. -- Amended filings in 2011 resulted in the addition of accounting- related defendants and allegations, likely increasing the complexity of these cases. The added complexity of accounting cases may explain why they are still less likely to be dropped or dismissed and settle for a disproportionately higher total settlement value than non-accounting cases. Additional Key Findings -- Accounting cases continue to be dismissed less frequently than non-accounting cases. For example, of the securities class actions filed in 2006, only 38 percent of accounting cases were dismissed by the end of 2011, compared with 46 percent of non- accounting cases. -- For cases filed during 2006 through 2011 that reached disposition by the end of 2011, only 8 percent of accounting cases were voluntarily dismissed, compared with 27 percent of non- accounting cases. A relatively low percentage of both accounting and non-accounting cases reached a ruling on summary judgment. -- Cases involving write-downs settle for higher values than cases not involving write-downs (even when compared with cases involving restatements). Cases involving financial statement restatements, however, settle for a significantly higher percentage of "estimated damages." This suggests that the higher settlement values associated with cases involving write-downs are due in part to the higher investor losses involved with these cases. The full text of the report is available at the Cornerstone Research Web site at http://is.gd/WtZ1gj * N.J. Committee Unanimously Approves Class Action Bill ------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that the New Jersey Assembly Judiciary Committee on May 21 unanimously approved a bill that would change how class action lawsuits proceed. A894 would allow a defendant in a class action lawsuit to immediately appeal a judge's order granting class certification. Under current rules, defendants have to wait until after a judgment is entered to appeal. The bill passed with a 7-0 vote. Five of the committee's members are Democrats. Assemblymen Gary Chiusano, a Republican, and John Wisniewski, a Democrat, are the bill's sponsors. The New Jersey Lawsuit Reform Alliance says the bill is also good for plaintiffs who are denied class certification. "This means that defendants who believe the court made a mistake will not have to incur the time and expense of going to trial only have to do it all over again because the class certification was erroneous from the start," the group says. "Plaintiffs who are denied class status can appeal that decision; today, a denial of class would usually mean the end of their case." The bill notes that several other states -- including Connecticut, Florida, Ohio, Oklahoma and Texas -- permit interlocutory appeals of class certifications. A judge must rule that there is a class made up of plaintiffs who have been similarly affected by the defendant's alleged conduct for a class action lawsuit to proceed. "As New Jersey tries to grow its economy and combat a 9 percent unemployment rate, litigation expenses are an unneeded barrier to economic development," NJLRA says. "Providing a right to an immediate interlocutory appeal is a tax- free, budget-neutral initiative to free up capital for job creators." Asbestos Litigation ASBESTOS UPDATE: Del. Ct. Junks Crane Co.'s Motion for Reargument ----------------------------------------------------------------- Judge John A. Parkins, Jr., of the Superior Court of Delaware, New Castle County, denied Crane Co.'s motion for reargument for its motion for summary judgment in the case captioned IN RE ASBESTOS LITIGATION: HAROLD HOWTON REED GRGICH Limited to: Crane Co., C.A. Nos. N11C-03-218 ASB, N10C-12-011 ASB (Del.), after determining that Crane Co. has offered a rehash of its prior arguments and has not met its burden of demonstrating "newly discovered evidence, a change in the law or manifest injustice." A copy of Judge Parkins' May 1, 2012 Decision is available at http://is.gd/FeF3VU from Leagle.com. ASBESTOS UPDATE: NY Court Refuses to Junk Suit v. Crane Co. ----------------------------------------------------------- Judge Sherry Klein Heitler of the Superior Court, New York County, denied Crane Co.'s motion for summary judgment dismissing the complaint and claims asserted in the case captioned EILEEN A. ROMERO as Executrix for the Estate JOSEPH McCARTHY, Plaintiff, v. A.C. and S., Inc., et al. Defendants, 113260/01, Motion Seq. 1 (N.Y.), after determining that the issues in the case are similar to two previously decided cases which hold that Crane Co. had an affirmative duty to warn consumers against the hazards associated with asbestos because the evidence demonstrated that Crane Co. recommended the use of asbestos-containing products in conjunction with its valves and other equipments. A copy of Judge Heitler's May 11, 2012 Decision is available at http://is.gd/RAGMVGfrom Leagle.com. ASBESTOS UPDATE: Court Junks Bid to File Appendix in Bernard Suit ----------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, denied on May 10, 2012, a leave to supplement record on appeal with appendix in the case captioned IN RE: NEW YORK CITY ASBESTOS LITIGATION; BERNARD, v. BROOKFIELD PROPERTIES CORP. - COLGATE-PALMOLIVE COMPANY, Motion No. M-1874 (N.Y.). A copy of the May 10 Decision is available at http://is.gd/9aWs6Jfrom Leagle.com. ASBESTOS UPDATE: Court Moves Time to Perfect Appeal in Dummitt -------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, enlarged the time to perfect appeal to the November 2012 Term in the case captioned IN RE: NEW YORK CITY ASBESTOS LITIGATION: DUMMITT, v. A.W. CHESTERTON - CRANE CO, Motion No. M-1882 (N.Y.). A copy of the May 17, 2012 Decision is available at http://is.gd/zyBFPHfrom Leagle.com. ASBESTOS UPDATE: Del. Ct. Junks Portions of Suit v. York Int'l. --------------------------------------------------------------- Judge John A. Parkins, Jr., of the Superior Court of Delaware, New Castle County, denied York International Corp.'s motion for summary judgment on product nexus after finding, for the second time, that a genuine issue of material fact existed as to product nexus despite. Judge Parkins, however, granted York's motion for summary judgment on component parts after finding that the Plaintiffs did not offer any citation to the record supporting their assertion that the Defendant recommended asbestos-containing replacement parts; and on misrepresentation and conspiracy because the motion for this issue was unopposed. The case is IN RE ASBESTOS LITIGATION: ANITA COSNER Limited to: York International Corp., C.A. No. N10C-12-100 ASB (Del.). A copy of Judge Parkins' May 14, 2012 Decision is available at http://is.gd/DtYg2ufrom Leagle.com. ASBESTOS UPDATE: NY Ct. Affirms Discharge of Worker's Claim ----------------------------------------------------------- The Appellate Division of the Supreme Court of New York, Third Department, affirmed a decision by a Workers' Compensation Law Judge discharging a workers' compensation claim filed by the widow of John Angelo, who died to what was determined to be asbestos- related pleural disease. The WCLJ discharged the employer's workers' compensation carrier. The WCLJ established the case for causally-related death, established an average weekly wage of $838.46 "per payroll in the underlying [occupational disease] case" and awarded benefits at the statutory maximum rate of $500 per week. The case is NORMA ANGELO, AS WIDOW OF JOHN ANGELO, DECEASED, Respondent, v. OCCIDENTAL CHEMICAL, Respondent, AND SPECIAL FUND FOR REOPENED CASES, Appellant, WORKERS' COMPENSATION BOARD, Respondent, 513773 (N.Y.). A copy of the May 17, 2012 Decision is available at http://is.gd/5YTOpNfrom Leagle.com. ASBESTOS UPDATE: La. Ct. Reverses Judgment in Personal Injury Case ------------------------------------------------------------------ An appeal arose from the personal injury and death of J.C. Williams from asbestos-related lung cancer, asbestosis and other complications. J.C. Williams and his wife filed a petition against multiple defendants seeking damages from alleged asbestos exposure. After the death of J.C. Williams and multiple motions for summary judgment, the trial court dismissed two defendants, held that punitive damages were not permitted, and denied a partial motion for summary judgment regarding the applicability of comparative fault. The trial court certified all of its judgments as final and appealable. In a May 16, 2012 decision, Judge Terri F. Love of the Court of Appeals of Louisiana, Fourth Circuit, found that the trial court erroneously made a finding of fact in determining that comparative fault principles do not apply to the case sub judice. Therefore, the Court granted the defendants' writ. The Court also found that the trial court erred by granting summary judgment in regards to the applicability of punitive damages due to the need to evaluate subjective facts for proper adjudication. Additionally, the Court found that the trial court erred by granting Union Carbide Corporation's motion for summary judgment regarding causation because genuine issues of material fact exist as to whether it exposed J.C. Williams to asbestos and if the exposure was a substantial contributing factor. Furthermore, the Court found that the trial court erred in granting Dow's partial motion for summary judgment regarding causation. Accordingly, the Court reversed and remanded the case for further proceedings. The case is J. C. WILLIAMS AND BETTY WILLIAMS, v. ASBESTOS DEFENDANTS; BUCYRUS INTERNATIONAL, INC.; CBS CORPORATION (F/K/A WESTINGHOUSE ELECTRIC CORPORATION); THE DOW CHEMICAL COMPANY; ENTERGY LOUISIANA, LLC; ENTERGY NEW ORLEANS, INC.; FOSTER-WHEELER LLC (FORMERLY FOSTER-WHEELER CORPORATION); GENERAL ELECTRIC COMPANY; ET AL., No. 2011-CA-0716 (La.). A copy of Judge Love's Decision is available at http://is.gd/7TJFemfrom Leagle.com. ASBESTOS UPDATE: Mesothelioma Widow Calls For More Safety At Work ----------------------------------------------------------------- Hawick News reports that the widow of a Hawick man killed by exposure to asbestos has vowed to continue to campaign for better working conditions. Margaret Turnbull is the wife of Walter Turnbull, who died aged 83 in December last year of mesothelioma, a cancer caused by exposure to asbestos. The devoted husband, father of four, grandfather and great- grandfather was exposed to the deadly dust while working as an engineer at Dingleton Hospital in Melrose and Bangour Hospital in West Lothian in the 1950s and 1960s. He carried out boiler repairs and overhauls of the boiler and pipe work systems which involved the removal of asbestos lagging. "To have my husband taken away from us because of illness he suffered while carrying out his day-to-day work was just devastating," said Mrs Turnbull. "He was never given any warnings about the dangers of asbestos, and never provided with any masks to stop him inhaling the dust but when he got home from work he would be covered head to toe in dust. It was impossible to avoid it." Mrs. Turnbull spoke out in the aftermath of the recent Workers' Memorial Day, an event held to raise awareness of the dangers that can be posed by workplaces due to negligence by employers. "I hope Workers' Memorial Day reminds employers of the need to protect their workers from any dangers to avoid unnecessary injuries or illness from just doing your job. Sadly nothing can bring my husband back but I just hope things can be improved so that others do not have to suffer the pain of losing a family member just because of the work they carried out." Elaine Mitchell, from law firm Irwin Mitchell, said "basic failings" were at fault for the loss of workers like Mr. Turnbull. She said: "Time and time again we are approached for help by people whose lives have been shattered by the loss of a loved one at work. "Unfortunately, many accidents in the workplace are the result of basic failings in following health and safety guidance. Thousands die from industrial illness such as those caused by asbestos exposure and the numbers are shocking." ASBESTOS UPDATE: Appalling Living Conditions at Wittenoom Told -------------------------------------------------------------- Science Network of Western Australia relates that Bassendean-born entertainer Rolf Harris has contributed his voice to an informative and emotive new online resource, the Australian Asbestos Network. Launched in March 2012 and funded by the National Health and Medical Research Council, the Murdoch-led initiative features medical information, information about asbestos in homes and the environment, as well as a powerful library of recorded stories from those affected by the carcinogen. Mr. Harris provides several stories, including his experiences working at the asbestos mine at Wittenoom in the Pilbara. He also reflects on his father's death from asbestosis as a result of exposure to asbestos insulation at East Perth Power Station, where he worked as a turbine operator. "People should be educated to the fact that you don't mess around with that sort of material," Mr. Harris says. "Don't drill into it, don't sand it down, don't create dust from it, don't saw it up. If you decide to get rid of it, get people who are experts on the demolition and removal of asbestos material." Asbestos was widely used in the post-war construction boom and renovators of older homes and buildings are urged to be conscious and get informed. The website includes a DIY Renovator's Guide with tips on how to recognize asbestos and how to handle and dispose of it safely. "While asbestos is dangerous, we want to assure the public that with the right knowledge and preparation, they can reduce their risk from potentially harmful exposure," says Associate Professor Gail Phillips, one of Murdoch's Chief Investigators on the project. Readers can discover how far health and safety has come in a section devoted to the social history of Wittenoom. Running from 1943 to 1966, the town mined and milled blue asbestos (crocidolite) in conditions described as 'appalling'. According to former worker Rod Powell, "In the mill, they had face masks hanging up, but you couldn't use them. They were full of asbestos. . . Nobody put them on. It was too hot." Mr. Powell recalls workers sleeping on top of bags of asbestos fibers being shipped to Port Hedland. "They were laying on them, breathing it in, 'cause [we had] no warnings about it, so they didn't know any better." To subdue red dust, asbestos tailings were openly spread around the town of 200 families, raising the incidents of cancer in those who were children at the time. Considered a global mesothelioma hotspot, WA has seen 1,500 people diagnosed with the cancer since it was first recognized in the early 1960s. More details at australianasbestosnetwork.org.au ASBESTOS UPDATE: Abatement and Demolition at Kensington Resume -------------------------------------------------------------- Deidre Williams of The Buffalo News reports that work has resumed at the asbestos-laden Kensington Heights apartment complex on Buffalo's East Side. The project involves abatement and demolition of two of the high- rises at the site, which has been vacant since 1980. The remaining four buildings will be enclosed to contain the asbestos inside the towers. A community meeting later this month will address how the neighborhood will be affected, according to the Buffalo Municipal Housing Authority, which owns the site. In July, Aria Contracting Corp. -- the company hired by BMHA to do the work -- will begin demolishing the two buildings. It should finish by Oct. 31. The entire project is in compliance with a plan approved by the U.S. Environmental Protection Agency, the state Department of Labor and the Buffalo Fiscal Stability Authority, said Modesto Candelario, BMHA's assistant executive director. The approvals came after the EPA halted work at the site last summer, charging the authority with violating the federal Clean Air Act because the potentially hazardous substance was being improperly removed. A 23-count federal indictment charged two contractors and nine individuals involved in the asbestos removal. ASBESTOS UPDATE: Oakland VA Service Fails Get Flak From Congress ---------------------------------------------------------------- Matthias Gafni of the MediaNews Group reports that bay area veterans wait nearly a year on average for their disability claims to get processed at the regional center in Oakland, according to a highly critical federal report released on May 10, leading one East Bay congressman to call the facility a bureaucratic "black hole." The Oakland office handles benefits claims for veterans from Bakersfield north to the Oregon border. It had almost 32,500 claims waiting an average of 269 days -- compared with a national target time of 180 days -- when the Department of Veterans Affairs inspector general visited in December. As of April, the delay for veterans had increased to 320 average days. Some wait far longer. Vietnam War veteran Richard Carpino, a 70- year-old retired plumber living in Lodi, spent more than seven years in the toxic boiler room of a Navy destroyer, where he was exposed to asbestos. Starting in 2000, he spent more than a decade fighting for his proper disability pay. Even after a congressman wrote a letter on Carpino's behalf, it took 15 months more before his claim was accepted and he received payments. He now gets $2,924 per month from the VA. As for the struggle and wait, Carpino said, "The military was easier. There really was no fighting there." The 320 average pending days at the Oakland center compares with an average of 241 days last month at the other 56 facilities nationwide, according to statistics provided to Rep. Jerry McNerney's office. The VA inspector general report also found 39% of 90 disability claims inspected were incorrectly processed, and of the eight major office functions inspected in Oakland, only five were in compliance. "There are very high-performing regional centers," McNerney said by phone from Washington, D.C. "Ours is not. "What's bothering me is that it has to come to this, where we have congressional hearings (and) bad press before getting any action," he said. "The veterans with disabling injuries, by and large, get taken care of pretty quickly; it's the ones on the margins who are depending on disability assistance that are affected, and their families." McNerney said that at a recent Lodi town hall meeting veterans complained about the long waits. "They feel like they are in a black hole," he said. After numerous denials of his claims, Carpino approached McNerney's office in 2008. By June 2010, with his lung capacity about half of normal, Carpino applied for 100% disability, and included a letter from the Pleasanton congressman with the application. More than a year later, on Sept. 28, the VA awarded him the full coverage, including retroactive pay. "Anytime they would deny me and gave me the reason, I would go on to the computer and the VA files and find another reason that made me eligible," Carpino said. "It took me 11 years. Eleven years is too long to get compensated. We're trying to find a way to speed it up," he said. The 10 oldest Oakland claims had been pending for between 1,040 and 3,187 days, according to the report. The facility, with 269 full-time employees inside the Ron Dellums Federal Building in downtown Oakland, failed to follow VA policy and provide monthly reviews of claims older than a year, the report found. A call to the VA media office Thursday was not immediately returned. But officials at the Oakland facility concurred with all the report's findings, and management said a plan is in place to ensure that 95% of claims completed by July will be those pending more than one year. As of last month, it took an average of 125 days before an Oakland VA employee first eyeballed a veteran's claim, according to McNerney's office. Carpino said such long waits may dissuade returning soldiers from trying to access the help they need. "There are a lot of young guys coming out of Iraq that don't want to get involved in it and don't want to deal with the VA," he said. "A lot of guys are maimed so bad, they have no arms or legs and they have to fight for every last bit and that's not right." The Oakland VA facility has pledged to increase staffing in critical areas, boost training and advance software to speed up and improve its claims process, according to the report. "The thing I want to see is concrete results, not talk about plans to do this and that," McNerney said. "It's a disgrace that we're sitting and talking about this today." ASBESTOS UPDATE: Demolition of Old Peru Power Station Begins ------------------------------------------------------------ Jeff Dankert at NewsTribune reports that excavators made two piles of rubble while demolishing Peru's old coal-fired electric station on Water Street. One pile was a dusty jumble of bricks and mortar. The other was a tangle of metal -- separated out by the contractor to extract cash value from the job. The city of Peru deeded the property to the contractor but the city is not paying the company for the work. The company agreed to this because of the potential scrap value. The arrangement cleared the city of liability during tear-down. Once the land is cleared and leveled, the city will take possession again and hopes to have a park there. The city began this project last year with A-Unified LLC of Cincinnati, Ohio. A-Unified removed a few metal items then hired a company to remove asbestos first, per state orders. Asbestos removal proceeded in fits and starts, with weeks of inactivity. This spring, Global Construction Group, Cross Lanes, W.V. took over the contract. It finished asbestos removal and began demolishing the structure April 26. Two excavators working from the west side knocked down as much of the building as possible before hitting the wall -- a tall wall. Cranes will be needed to bring down the rest, including the tall smokestack. Workers have loaded scrap metal onto semitrailers that took it away. Sam Wadas of Peru was down there watching the work. "I used to work here back in '67 after I was in the Navy," Wadas said. His father, Walter Wadas, also worked at the plant, he said. Sam Wadas worked there about a year. "It wasn't for me," he said. "Then I went to work for Caterpillar in Aurora." A representative of Global Construction Group said it would take 90 days from April 26 to tear down the building and recover the scrap. Parts of the building are more than 100 years old. In addition to asbestos, the Illinois River regularly floods the building. The plant was closed 11 years ago. The city looked for a buyer for two years and never found one. The city uses a newer building to the west that contains electric generators. ASBESTOS UPDATE: Ex-Mayor Diagnosed With Pulmonary Fibrosis Dies ---------------------------------------------------------------- The Bolton News reports that a former Westhoughton mayor died after his heart stopped as he was being taken to hospital by ambulance, an inquest heard. Ronald Halliwell, who was a Liberal Democrat member of Westhoughton town council from 1999 to 2007, and Mayor in 2004 to 2005, died on Feb. 22. The 78-year-old was being moved from his home in Henry Street, Westhoughton, to an ambulance when his heart stopped, Bolton Coroner's Court was told. The father of two was pronounced dead at the Royal Bolton Hospital later that day. The inquest heard that the former joiner, who had worked with asbestos, was diagnosed with incurable pulmonary fibrosis five months before his death. He suffered from breathlessness and was being treated with oxygen. On the day he died, Mr. Halliwell's symptoms had worsened and his GP had requested an ambulance to take him to hospital. At the inquest, Mr. Halliwell's wife, Florence, and his daughters, Karen Humphreys and Janet Halliwell, criticised paramedics for asking Mr. Halliwell to slide down the stairs on his bottom, rather than carry him in a chair. But deputy coroner Alan Walsh accepted it was up to the paramedics to determine the best way to move a patient. He recorded a verdict of natural causes and said Mr. Halliwell's death was not caused by asbestos. After the inquest, Mrs. Humphreys said: "He put family first every time and gave a lot back to the community. It is a great loss, not just to us but to Westhoughton." ASBESTOS UPDATE: Redmond Street Closed for Decontamination ---------------------------------------------------------- The Bulletin at bendbulletin.com reports a portion of Southeast 10th Street in Redmond was slated to be closed as crews work to remove construction debris and soil from the area. The road was closed between U.S. Highway 126 and Southwest Veterans Way from 7 a.m. Monday, May 14 through 5 p.m. Friday, May 18. Traffic was to be detoured through Southeast Veterans Way. The city says the area was a military property during World War II, and some of the construction debris may contain asbestos. Specialized contractors have been hired to remove the debris. ASBESTOS UPDATE: Coffs Harbour Waste Facility Faces EPA Charges --------------------------------------------------------------- ABC News reports the Environmental Protection Authority has found three Coffs Harbour operations have breached asbestos disposal regulations. A state-wide crack-down involved 19 unannounced visits to licensed and unlicensed facilities in Sydney, the Hunter, the Illawarra and the mid north coast. The EPA says in Coffs asbestos was wrongly classified and hidden under other building waste at the transfer stations. Spokesman Steve Beaman says no decision has been made yet on action against the Coffs Harbour facilities. "We're currently reviewing the evidence and we'll consider that evidence carefully before we consider what recourse action we'll take," he said. "The fines range from five thousand dollar on the spot fines up to a million dollars for a corporation. So they're significant fines that apply if you're caught doing the wrong thing." Mr. Beaman said education is the key to stopping the dangerous practice. "All sorts of people do it and the issue about this is about people misclassifying their waste at waste transfer stations," he said. "So hiding asbestos under loads of building and demolition waste, that's something that we need to crack down on and stop that practice." ASBESTOS UPDATE: NOB Bill Crafted to Effect Upon Governor's Nod --------------------------------------------------------------- Carey Restino of The Arctic Sounder reports that some long-delayed projects in the Upper Kobuk region may now move forward thanks to legislation that paved the way for construction in areas that have naturally occurring asbestos. Gov. Sean Parnell recently signed into law a bill that would allow the use of gravel aggregate with naturally occurring asbestos. According to Rep. Reggie Joule, D-Kotzebue, the regulations regarding asbestos in aggregate had all but put a stop to development in the region for some time. New home construction, road construction and work on a sewage treatment facility had all been put on hold. It was putting a noose on economic development, he said. "We were able to work with all the state agencies and communities to craft a piece of legislation that will find a way forward for the communities to do the things that they need to do to stimulate economic development and build homes and complete some of the projects they needed to do," Joule said. The state looked to California where similar legislation is in place to allow for construction in areas with naturally occurring levels of asbestos. While there was opposition by some in the Legislature to the law, which offers some protection to the state from lawsuits pertaining to asbestos exposure, the bill ultimately passed. Standards and regulations must be followed for the use of aggregate with naturally occurring asbestos including public notice, workplace environmental controls and handling procedures. Joule said testimony by the state epidemiologist concluded that ordinary dust in many villages was more of a health risk than the asbestos, though others debated the health risks. Projects in some areas may move ahead this summer, Joule said, or at the very least, be slated for start next year. "The bill was crafted so it was effective immediately on the governor's signature, so hopefully we will begin to see the fruits of all that deliberation this summer but certainly by next season," he said. ASBESTOS UPDATE: Contractor That Found HazMat Faces $4,200 Fine --------------------------------------------------------------- James Ylisela, Jr., of Crain's Chicago Business relates that on Sept. 12, Tom Shelton entered a construction trailer at 14th Street and Blue Island Avenue looking for answers. The owner of a small Michigan drilling company, Mr. Shelton had unearthed asbestos-covered boiler pipes on the site, temporarily halting construction of the new 12th District police station, and he worried that his crew, which included two of his sons, had been exposed to the potentially dangerous fibers. Inside the trailer, he asked Andy Horn and James Harrell of the city Public Building Commission, the agency managing the construction, what they were doing to safeguard the site. The men assured him that the agency's environmental contractor had determined the asbestos was "non-friable," meaning it couldn't easily crumble into dust and harm workers' lungs. And they reminded Mr. Shelton that he had been ordered to resume work. Mr. Shelton wasn't having any of it. "I had the stuff all over me," he recalls. Frustrated, he pulled a clump of asbestos out of his pocket and held it out to the two men. "If it's not friable," he told them, "then I guess you gentlemen have nothing to worry about." With that, he crushed the material in his hands, spreading a cloud of dust over a nearby conference table. Stunned, Messrs. Horn and Harrell fled the trailer, Mr. Shelton says. The confrontation eventually cost Mr. Shelton, 52, a lot: After refusing to return to the site, his DT Boring was fired for "nonperformance" and, he says, is now struggling to stay afloat. The incident also provides a snapshot of what can go wrong on a PBC-managed construction project. Plainfield-based Harbour Contractors Inc. won the 12th District station general construction contract with a low bid of $21.5 million in 2010. The building design called for an 82-well geothermal system to circulate water for heating and cooling. Harbour hired Arlington Heights-based Optimal Energy LLC to do that work for $943,000. Optimal, in turn, hired Mr. Shelton's Portland, Mich.-based company for $830,000. Mr. Shelton, who is not a minority contractor, says he had completed about 85% of the job when, on Aug. 19, he dug up some old utility pipes from a demolished Chicago Housing Authority row house that were buried in soil. The pipes appeared to be wrapped in asbestos, he says. On Aug. 31, Optimal Vice President Neil Piazza instructed Mr. Shelton to stop working and to place caution tape around the contaminated soil. But the commission's environmental contractor, Loop-based Environmental Design International Inc., judged the site to be safe even before it collected samples for testing. In an email that same day, EDI Vice President Scott Dileto wrote, "From looking at the pictures . . . I don't think the material is friable and should be alright (sic) without plastic as long as it doesn't get disturbed." On Sept. 2, lab results showed the samples were indeed asbestos, but Mr. Dileto still declared in an email that it was "not really a friable material." Based on that assessment, Harbour ordered everyone back to work. The company did not return phone calls. Mr. Dileto directs Crain's questions to his client, the Public Building Commission. In a written statement, the PBC says that it did not take possession of the land until after the demolition and did not discover any asbestos during its environmental assessment. It did notify the state of the contamination, but only after Mr. Shelton discovered it, records show. The commission also acknowledges the Sept. 12 faceoff between Mr. Shelton and Messrs. Horn and Harrell. Mr. Shelton refused to go back to work until the asbestos was removed. He says Harbour agreed to pay him for the cost of the work stoppage but never did. On Jan. 27, Harbour fired Optimal Energy for nonperformance, and Optimal in turn fired Mr. Shelton. In February the federal Occupational Safety and Health Administration fined Mr. Shelton $4,200 for exposing his employees to asbestos, a known carcinogen, even though it was Mr. Shelton who had alerted the agency to the problem. The matter is still pending. ASBESTOS UPDATE: JFK at St. Michel's Extends Temporary Shutdown --------------------------------------------------------------- The Montreal Gazette reports that John F. Kennedy High School in St. Michel, along with is business school, Was closed again May 14 as the English Montreal School Board awaits results of inspections following the discovery of traces of asbestos in the air. The school was closed May 10 and 11. An asbestos-removal firm eliminated traces of asbestos found in two ventilation rooms, the board said. Air quality testing in the rooms deemed them to be safe. But further precautionary tests in other parts of the building revealed other traces of asbestos. ASBESTOS UPDATE: JFK School Closed For Rest of School Year ---------------------------------------------------------- The Montreal Gazette reports that students from John F. Kennedy High School are to be moved to another facility for the rest of the school year after traces of asbestos were discovered in two ventilation rooms in their building in the St. Michel district. Students at John F. Kennedy Business Centre, which shares the same building, will also be relocated. The decision comes with just weeks left in the school year and final exams looming. Students from JFK High School will finish the year at Rosemount High School. Students from JFK Business Centre will be moved to a few different sites. The English Montreal School Board held a meeting for parents on the night of May 21 with Montreal's public health department at Rosemount High School. The John F. Kennedy facility has been closed since the first week of May. The board announced May 9 that traces of asbestos were discovered in two ventilation rooms last month. It said it was closing the high school and centre May 10 and 11 for precautionary reasons while air quality testing was done. A firm had removed the asbestos and those rooms were deemed safe, the board said in a statement. But testing in other parts of the building showed traces of asbestos. The facility remained closed on May 14. According to the EMSB, tests have come back negative in terms of the asbestos being airborne. However, it has decided to continue with further testing, which it can't do while students are in the building. ASBESTOS UPDATE: Plan for Toxic Dump In Christchurch Irks Citizens ------------------------------------------------------------------ Paul Gorman of The Press, New Zealand, reports that a proposal to dump 5000 tons of toxic asbestos at the Burwood Resource Recovery Park has residents worried. The asbestos is from old sewerage pipes damaged in the earthquakes and subsequently replaced. It is unclear whether the material is the highly carcinogenic blue asbestos or the slightly less dangerous brown asbestos. A meeting of nearby residents and other interested groups was held on May 7 to outline the proposal. Christchurch City councillor Glenn Livingstone, who represents the ward, said he agreed with residents' concerns that they did not want asbestos close to their homes. Livingstone, who is also a member of the Canterbury Waste Committee, said he did not know why the dangerous material could not be dumped at Kate Valley, as other asbestos from quake demolitions had been. It was not clear if the proposal was being pushed by the city council or the Canterbury Earthquake Recovery Authority, he said. Invitations to last week's meeting had not been received by all affected residents. A Burwood resident said only about 30 people attended the meeting. ASBESTOS UPDATE: Oak Ridge Workers File Claim In Roane Court ------------------------------------------------------------ Frank Munger of Knoxville News Sentinel reports that a half-dozen Oak Ridge cleanup workers who first raised concerns about unwitting and unprotected exposures to asbestos, PCBs and other hazards more than a decade ago are now seeking compensation in a lawsuit filed in Roane County Circuit Court. The lawsuit filed May 5 seeks damages from a number of government contractors who were involved in cleanup operations at the Department of Energy's K-25 plant in 2000-2001. Those contractors included BNFL Inc., now doing business as TSB FA Nuclear Services Inc., which headed a multiyear, $300 million DOE project that dismantled and decontaminated three uranium-enrichment facilities at the Oak Ridge site. The six plaintiffs who filed the lawsuit -- Christopher Todd Upton, Leslie Darnell Jones, Jeffery Lynn Keylon, Paul Steven Vance, James David Parten and Timothy Edward Robbins -- worked as independent contractors for R&R Electric Corp., a subcontractor that reportedly was involved in the demolition of "synchronous condensers" at the site. According to the lawsuit, some of these large pieces of electrical equipment had been purchased from BNFL by American Technology Inc., which in turn subcontracted the demolition to R&R and other companies. The plaintiffs claim they were told that the condensers did not contain asbestos, polychlorinated biphenyls and other hazards, and that their requests for respirators and other protective equipment were refused by the contractor teams at Oak Ridge. The workers said they were exposed at the site while cutting up the equipment with chop saws. "The chop saws created thick clouds of fine dust and debris, which completely coated Plaintiffs' bodies and clothing every day, and which they breathed continuously," the lawsuit alleges. Also, while working at the site, the defendants said they were exposed to smoke from fires in 2000 when BNFL and another contractor, Coy Superior Inc., attempted to burn insulating material and wrapping off the large copper coils that had been removed from the condensers to salvage the copper. "The coils were burned in open fires in the BNFL switchyard over a period of a week, creating huge plumes of smoke," the lawsuit states. "On information and belief, the insulating material and wrapping contained significant quantities of ACM (asbestos- containing material)" that was distributed throughout the site. The lawsuit contends the materials also had PCBs, which during combustion can create dioxin and furan, highly toxic and cancer- causing compounds. While contractors reportedly denied knowledge that the equipment contained asbestos, the lawsuit states that the Department of Energy had manuals confirming that the condensers did contain asbestos and that BNFL had access to these manuals. The lawsuit is seeking unspecified compensation for pain and suffering, increased risk of cancer and other diseases. James Scott, the lawyer representing the six workers, indicated there have been medical problems related to the exposures at the Oak Ridge site but he said he was not yet prepared to discuss those publicly. According to the court documents, the workers' legal case against the contractors began in January 2003 and was transferred to U.S. District Court in Pennsylvania. It was later transferred to U.S. District Court in Eastern Tennessee, but was dismissed without prejudice in May 2011. It was then filed in Roane Court Circuit earlier this month. ASBESTOS UPDATE: Binghamton U Campus-Wide Abatement Underway ------------------------------------------------------------ Brian Racow of The Binghamton University Pipe Dream News reports that projects are currently underway at Binghamton University to remove asbestos -- a chemical that can cause cancer in humans who are exposed to it -- from several campus buildings, including Science II and Tuscarora Office Building. A dumpster of hazardous asbestos material sits outside of College- in-the-Woods Dining Hall. The University is overseeing asbestos removal work in numerous buildings throughout the campus. Asbestos is a group of mineral fibers commonly used in building construction up until the 1960s and '70s for its strength and flame-retardant qualities. According to Arthur Frank, a physician and chair of the department of environmental and occupational health at the Drexel University School of Public Health, asbestos exposure can cause both non- malignant diseases like asbestosis -- scarring of the lungs and the lining of the lungs -- and cancers, typically mesothelioma or lung cancer. The University has overseen asbestos removal work this semester in the Old University Union, Lecture Hall and West Gym, among other buildings. Asbestos removal projects will begin between now and the start of the fall semester in the Heating Plant, Fine Arts Building, Central Campus Quad area, Couper Administration Building and other campus buildings. Many campus buildings not already named contain asbestos, from the numbered Science buildings to the Engineering Building, Computer Center, and all the residential buildings of Hinman College, College-in-the-Woods and the Dickinson Community. Asbestos is now highly regulated by New York state and federal agencies. Karen Fennie, spokeswoman for Physical Facilities, said that BU goes "above and beyond what is required regarding monitoring and testing" for asbestos. "We've done removal of asbestos for years on campus without any safety issues, without any exposure issues, probably because we are so diligent about the way we go about managing this," Fennie said. Some see reason for concern, however. Jenna Fierstein, president of Student Environmental Action Coalition (SEAC) and a senior double-majoring in biology and environmental studies, said that she was bothered by the proximity of asbestos work in a Science II hallway that remained open to foot traffic and where classrooms remained in use. "I've had a lot of classes in Science II this semester," Fierstein said. "And every time I go in there, I see the construction thing with that big plastic barrier that says, 'warning, asbestos.' It kind of bothers me that they're just doing construction in an area where students are heading back and forth." Buildings undergoing asbestos removal are not limited to abatement workers because such a step would be beyond what is required of BU under New York and U.S. laws and regulations, Fennie said. "We do what we're required," Fennie said. "We do asbestos removal in a safe manner. The state set up the parameters for us to follow and we follow them." Fierstein expressed doubts. "Following state laws and regulations just means that they're doing only what's minimally required," she said. "And that's not a very good defense. I mean, it's a good legal defense if you don't want to be sued . . . but it doesn't actually make it so that they're putting students' safety and health as their top priority." Kate Harrigan, a sophomore majoring in French, said she has not taken much notice of campus asbestos projects. "I think I saw some signs in the library during my freshman year about asbestos removal," Harrigan said. "It concerns me that I'm not more aware about it." The majority of Binghamton University's Vestal campus was built in the 1950s, '60s and '70s, when asbestos use was still prevalent. Buildings constructed with asbestos in them include campus mainstays like the Lecture Hall, Glenn G. Bartle Library, Old Union and the dormitories of Dickinson Community, Hinman College and CIW. The Binghamton University Asbestos Field Guide, a document Physical Facilities maintains for its employees, states that "as a generality, unless there is documentation otherwise, assume that asbestos may be present" in campus buildings. The Field Guide, available on BU's website by computers connected to the campus network, lists the most common locations of asbestos within campus buildings -- ranging from ceiling tiles to window caulking, dry wall compound and fire doors -- and checks off for each building the status of asbestos at these locations. Fennie said the Field Guide may not include the location of all asbestos on campus. She called the possibility that campus buildings built in more recent decades contain asbestos "highly unlikely," but she did not rule it out. "Think about the complexity of constructing a building and all the materials that are used," Fennie said. "And think about every single ingredient in a product used that you'd have to go through to say, 'this building is 100 percent asbestos-free.'" Robert Mulcahy, asbestos coordinator and safety manager at BU, said that BU aims to say just that, at added expense and effort, for at least one facility: the Innovative Technologies Complex (ITC) across Murray Hill Road from campus. He said guaranteeing that the ITC is free of asbestos is a necessary step for the University to achieve Leadership in Energy and Environmental Design (LEED) certification as to the ITC's status as a "green" facility. Fennie said that BU tests for the presence of asbestos in any building prior to beginning renovation work, regardless of the building's age, in order to comply with OSHA regulations. She also said that for reasons relating to funding, BU will often wait to have asbestos removed from a building until a time when the building is also set to undergo other renovations. "It's kind of done on a project-by-project basis," Fennie said. "[Funding for asbestos abatement] all comes from the State. In the case of a capital project like the East Gym renovation, the cost of asbestos removal was rolled into that and paid for with our capital project funds . . . But it's not like the State says, 'we're gonna give you an infinite amount of money to remove all the remaining asbestos on campus.' I don't think the State has that kind of money." Mulcahy said that costs of asbestos abatement projects on campus vary widely depending on projects' sizes. "If we just have one of our construction crews doing a job, it could be $2,500, all the way up through $1 million, depending on the scope of the project," Mulcahy said. "With the East Gym, I know it ended up being more than $1 million." Within the last four years, asbestos removal has also occurred in College-in-the-Woods as well as in the Engineering Building, East Gym, Decker Student Health Services Center and other areas of campus. The Decker Student Health Services Center is the only one of these buildings that is now completely free of asbestos, according to the Field Guide. Asbestos removal projects are currently underway on the third floor of Science II and in the Tuscarora Office Building. Two Brothers Contracting, Inc. of Whitesboro, N.Y., is performing the abatement in both buildings. Two Brothers Contracting's workers are removing some 3,940 square feet and 500 linear feet of asbestos containing material from Science II, and they are removing some 10,307 square feet and 200 linear feet of asbestos containing material from Tuscarora. BU's construction news webpage also states that the north end of the Old Union, the English department hallway in Bartle Library and the former Dickinson Dining Hall will undergo asbestos abatement this summer. Ariella Sklar, a sophomore majoring in psychology, said asbestos projects on campus do not trouble her. "It doesn't bother me if [University officials] say it's safe," Sklar said. "We have to trust them." ASBESTOS UPDATE: West Perth Residents Warned of Toxins From Blaze ----------------------------------------------------------------- Fran Rimrod and Rhianna King of The Sydney Morning Herald report a massive West Perth factory blaze has been contained, however residents have been warned to stay away as there is a chance asbestos particles may be in the air. The Fire and Emergency Services Authority says the area is no longer being affected by smoke or fumes, but adjacent premises have been affected by asbestos. ChemCentre and the DEC's Pollution Response Unit have been monitoring air at the site. Firefighters are mopping up to make the area safe so the City of Vincent can take over cleanup operations. Police confirmed there was asbestos in the roof of the building and ChemCentre, as well as the Department of Environment and Conservation's Pollution Response Unit, are at the scene to conduct air monitoring and analysis to confirm the type of chemical involved. The fire had engulfed the entire building, which was once home to wholesale food production factory Comgroup, and people south-west of the fire were evacuated from their homes by police wearing masks. FESA was warning people in the area to stay inside with doors and windows closed and air-conditioners switched off. A caller to Paul Murray's morning show on Radio 6PR said the blaze made for a spectacular scene when it was first noticed. "It's well going now," he said. "The flames are coming right out of the roof." Resident Zoe Emonson said she arrived at her Charles Street home to see a plume of smoke rising from the factory. She called the fire brigade and police arrived shortly after and evacuated her home and surrounding areas. "There was smoke everywhere. Police were saying it's dangerous, and highly volatile . . . and there was asbestos," she said. She said the factory had been abandoned for two years and that she had seen squatters in the area in recent days. ASBESTOS UPDATE: Asbestos Complicates Earthquake Recovery Laws -------------------------------------------------------------- Paul Gorman of The Press reports that the Christchurch City Council's proposal to dump asbestos-containing material in part of Bottle Lake Forest goes against commitments made late last year, the Green Party says. The plan to dump up to 5,000 tons of damaged concrete pipes containing asbestos has angered Parklands and Waimairi Beach residents, some of whom say they were not told about the proposal and about a public meeting last week. The council says special earthquake legislations means resource consent for the Burwood Resource Recovery Park will be granted regardless of public input, although the views of locals will be taken into account in setting conditions on the work. Council city water and waste unit manager Mark Christison said a guarantee had been given to those who attended last week's meeting that the asbestos-dumping part of the consent application would be looked at again. Green MP Eugenie Sage said the asbestos plan "reneged" on assurances given last November by Environment Canterbury commissioner Peter Skelton and Christchurch Mayor Bob Parker that waste with asbestos would continue being transported to the Kate Valley landfill. "These [assurances] were made in the context of the order-in- council, which changed the regional and city plan rules to provide for disposal of earthquake waste at Burwood," she said. Parker said in November that ways needed to be found to ensure waste was managed as close as possible to its source. "It became clear that we needed to find ways to minimize the impact upon the Kate Valley regional landfill. It was also important to reduce the number of truck movements to and from the site and Kate Valley for local residents and people living near the arterial routes," he said then. "Opening up the new [Burwood] landfill cell will keep disposal and recovery costs to a manageable level and hugely reduce the number of truck movements between Burwood and Kate Valley. "Materials like asbestos and other hazardous wastes will still be trucked to the regional landfill, but the majority of materials unable to be recycled or reused, which are not hazardous, will be safely disposed of in the new Burwood cell." Sage said the asbestos application highlighted the problems with Canterbury earthquake recovery legislation shortcutting Resource Management Act processes. "The community and the environment are short-changed because there is no chance for public submissions or challenge through the Environment Court," she said. Christison previously said residents' views would be taken into account by commissioners when setting conditions on the consents. "We gave an undertaking at the meeting [with locals last week] that we would take another look at the asbestos issue," he said. That would take about two weeks. The consent application by the recovery park and city council has three sections: -- For the sorting and recycling of quake waste at the park. -- For permanent disposal of waste in a new cell at the landfill. -- For permanent disposal of mixed hardfill, asbestos and contaminated silt and water in discrete cells at the park. A consent hearing is not required and only a limited number of groups needed to be consulted, in this case local residents' associations, Ngai Tahu, the Canterbury District Health Board and the Burwood-Pegasus Community Board. Christison was unsure whether the material would contain blue asbestos, the most dangerous, or the slightly less poisonous brown variety. "As far as health and safety legislation is concerned, asbestos is asbestos," he said. Bower Ave resident of 10 years Philippa Grey who went to the meeting was surprised at how few locals were there and estimated only 30 attended. "They said they didn't look at any other sites. It sort of came out that it was cheaper, easier and closer to have it here," she said. "It's very hush-hush." A limited number of residents had been told about the meeting, she said. Heathglen Ave resident of five years Chris Aston-Grieve said she heard of the meeting only "through the grapevine" and rang the council to complain. "They don't even cover the trucks now that come with the silt. There's muck and dust everywhere. It's horrible living here," she said. "I've had 21 respiratory bugs since last June. "I don't want asbestosis as well." ASBESTOS UPDATE: Ex-Developer Sentenced to 3 years in Probation --------------------------------------------------------------- Mark Morris of The Kansas City Star reports that Anthony Crompton, the former real estate director of a nonprofit agency that littered a Kansas City development site with asbestos, was sentenced Tuesday, May 15, to a half-way house and federal probation. Crompton, 42, admitted in October that he violated the Clean Air Act by improperly removing asbestos-containing materials while demolishing numerous homes to make way for the proposed Citadel Plaza Redevelopment Project. Though the prosecutor said a sentence of probation would reflect Crompton's cooperation against his co-defendant, former Community Development Corporation of Kansas City president William M. Threatt, Jr., U.S. District Judge Gary Fenner disagreed. Fenner noted that the redevelopment site -- bounded by 60th Street to the north, 63rd Street to the south, Prospect Avenue on the east and Brooklyn Avenue to the west -- remains significantly contaminated with asbestos and has become an even greater burden for the city to redevelop. "Given the impact of the conduct you participated in on the community at large, and your clear knowledge that asbestos was present and not being handled as required by law . . . some period of incarceration is called for," Fenner said. Fenner ordered Crompton to serve three years on probation, including five months in a half-way house. Threatt, 71, who also was charged in the case, pleaded guilty in February. His sentencing date has not been set. The Kansas City Star first reported that asbestos contaminated the area in 2006. A reporter found that scores of homes built with asbestos-contaminated materials had been demolished and that no asbestos permits had been obtained. Health inspectors quickly shut down work at the site as they investigated and confirmed the newspaper's findings. Acting U.S. Attorney David Ketchmark acknowledged Tuesday that the contamination occurred because the corporation was trying to save money on an expensive cleanup effort, and was not part of an effort to unjustly enrich its officers. "They wanted to take that material out under the cover of darkness to limit their development costs," Ketchmark said. "Because corners were cut, the city is suffering, because that property has become an eyesore." After purchasing much of the property from Research Medical Center, the development corporation announced plans to build a 35- acre shopping center, including a full-service grocery, retailers, restaurants and homes. Years passed, however, and the area became more and more contaminated with building materials that had been left in huge piles and in nearby woods. In June 2010, federal prosecutors charged Threatt and Crompton with ignoring environmental laws that require careful inspection, removal, disposal and detailed recordkeeping of asbestos- containing building materials. Crompton apologized to Fenner for his part in the scheme. "I take full responsibility for my actions," Crompton said. "Nothing like this will ever happen again." Earlier this year the city agreed to pay $15 million to settle lawsuits related to the case. For its money, the city obtained most of the property and the rights to make another redevelopment attempt. In pleading for straight probation for Crompton, defense lawyer Mike Yonke noted that his client had helped prosecutors resolve the case against Threatt. "Mr. Crompton has cooperated with the government, and his agreement to testify was instrumental in having Mr. Threatt come in and plead," Yonke said. ASBESTOS UPDATE: Geelong Admits Knowledge of Beach Contaminants --------------------------------------------------------------- Mandy Squires of The Geelong Advertizer reports the City of Greater Geelong and State Government have known about asbestos on the city's beaches for years and failed to act. Geelong's city services manager Gary Van Driel on May 15 admitted the council had alerted the Department of Sustainability and Environment (DSE) to the presence of dumped asbestos on Western Beach crown land three years ago and asked it to investigate. As little as the second week of the month, members of the public could walk over broken pieces of asbestos on the Corio Quay shoreline and on the top of the cliff, at the end of Crowle St in North Geelong. The area, immediately in front of the GrainCorp terminal, is popular with fishermen and people exercising dogs. Litter in the area also indicates it is used by groups of young people as a meeting place. Questions put to the DSE by the Geelong Advertiser on May 14 asking if it knew of the asbestos problem at Corio Quay before this month were not answered. A Geelong Advertiser story on Saturday, May 12, revealed there was a large quantity of asbestos buried in a cliff and scattered across a beach, near the GrainCorp pier and terminal. As a result of the story, the Environment Protection Authority (EPA) launched an investigation into the site. "EPA Victoria was made aware of a large quantity of demolition waste suspected of including amounts of asbestos in the landscape of a Geelong North beach last week, after a report was made to the EPA by a journalist at the Geelong Advertiser," EPA spokesman, Scott Samson, said in an official statement on May 14. "The site was inspected by EPA and EPA continues to investigate the site. Initial inspection of the site suggests erosion and tidal flows over many years may have caused the demolition waste to become exposed." Mr. Van Driel said it appeared the asbestos had been on the site for many years and could relate to old sheds which had been demolished. The council was now working with the DSE and EPA to determine the best clean-up method for the site, he said. In the meantime, it had erected barriers around the site to prevent further public access, Mr. Van Driel said. 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. Mr. Van Driel said the council would also employ an expert to ascertain the extent and condition of asbestos dumped in the area and develop a long-term plan for asbestos management in Geelong. A 2007 City of Greater Geelong report, uncovered by the Geelong Advertiser this week, refers to coastal erosion at Moorpanyal Park in North Shore and "current asbestos removal operations", indicating the council was aware of asbestos problems on the North Geelong foreshore some time ago. The Geelong Port Structure Plan, adopted by the City in October 2007, states one of the objectives of the port precinct is: "To ensure public health is not endangered by contaminants at Moorpanyal Park." Moorpanyal Park is just a short distance from the GrainCorp pier and terminal. ASBESTOS UPDATE: Thieves Stuck in Contaminated Building For 5 Hrs ----------------------------------------------------------------- Maryland State Police have apprehended two suspects after they broke into a condemned hospital building. Police say Matthew Blizzard and Dennis Dyer broke into a Spring Grove Hospital Center building that was condemned in the 1970s because of asbestos and mold in order to steal copper piping and wiring. Spring Grove Police responded to the Hamilton Building after reports of suspicious men carrying saws and crowbars were reported. Officers found the two men, Blizzard on the ground floor, Dyer escaped into the in the attic area. Blizzard was taken into police custody immediately. After about 5 hours, Dyers was given verbal warnings that the K-9 units were about to be released and SWAT team members would follow. Minutes later, Dyer called his girlfriend in Dundalk and said that he could see police around the building. He then exited through a porthole in the roof of the building, jumped to the ground and surrendered to police. ASBESTOS UPDATE: Study Links Size of Fibers to Cancer Occurrences ----------------------------------------------------------------- MesotheliomaHelp.net sponsored by Belluck & Fox, LLP, reports that in a new study, medical researchers at the University of Nebraska and Duke University investigated the relation between the size and shape of asbestos fibers and incidence of lung cancer among workers employed at asbestos textile mills. Asbestos, a mineral fiber, causes respiratory disease in humans including pleural abnormalities; asbestosis, a chronic scarring of the lungs; lung cancer and mesothelioma, a cancer of the lining of the chest cavity and abdominal cavity. Writing in the May issue of the journal Occupational and Environmental Medicine, the researchers reported tracking the health and vital status of more than 6,100 workers employed at textile mills that used asbestos in North and South Carolina from 1940 to 1973. As part of the research, the researchers estimated the size of asbestos fibers the workers were exposed to, depending on their particular job, based on an analysis of 160 historical dust samples from the textile mills. Certain jobs have a greater occupational risk of exposure to asbestos. The researchers observed an increased risk of lung cancer among textile workers exposed to asbestos fibers of all lengths and diameters. They noted that the risk of lung cancer increased as the length of the asbestos fibers increased. The research supports the hypothesis that lung cancer is associated most strongly with exposure to long, thin asbestos fibers. People may be exposed to asbestos in workplaces or homes if products containing asbestos are disturbed and tiny asbestos fibers are released into the air. Asbestos fibers may get trapped in the lungs if inhaled and remain in the lungs for a lifetime. The fibers can accumulate and cause scarring and inflammation, leading to disease. Asbestos is classified as a known cause of cancer by the U.S. Department of Health and Human Services, the U.S. Environmental Protection Agency and the International Agency for Research on Cancer. Mesothelioma is the most common form of cancer associated with asbestos exposure. Symptoms of mesothelioma typically take 20 years to 40 years after exposure to asbestos. Most people diagnosed with mesothelioma and asbestos related disease are older workers, retired workers and veterans who were exposed to asbestos in a workplace or in the service. ASBESTOS UPDATE: Health Officer Says Fibro In Drinking Water Is OK ------------------------------------------------------------------ Jared Nicoll of The Marlborough Express reports that Picton residents have nothing to fear from drinking water which runs through asbestos cement water pipes, says a health official. Construction crews repairing a burst pipe under Devon St. on May 5 wore masks, raising concern over potential risks of drinking water contaminated with asbestos. Nelson Marlborough District Health Board medical officer of health Ed Kiddle said inhaling asbestos fibers can cause lung cancer, but there was no danger in ingesting it in small quantities such as those that might be found in drinking water. "We may get some minuscule amounts in the water but there's no evidence of problems arising from ingesting it," Dr Kiddle said. Asbestos-based products were commonly used in construction until the 1980s, Marlborough District Council operations and maintenance engineer Steven Rooney said. About 30% of Blenheim's water pipes are made from the material. Crafar Crouch Construction water reticulation officer Wayne Bowden said contractors wore masks when repairing the pipes to avoid breathing in any of the dangerous fibers. "Drinking asbestos is not a risk in a burst situation because it is never dry . . . It is only because of the saw [used to cut out the broken pipe], which dries it to dust, that it becomes airborne." Marlborough District Council engineering officer Kerry Walsh said at least one pipe has burst in Picton every month over the last four months. They replaced broken asbestos cement pipes with plastic material such as PVC. The council planned to replace all pipes from Oxford St. across to York St. and down to Broadway St. in June as part of ongoing maintenance as and when required, Mr. Walsh said. The Health Ministry's draft guidelines for drinking-water quality management, last updated in 2005, stated that studies showed little evidence of danger to populations who had high amounts of asbestos in their drinking water. Extensive studies on animals showed consuming asbestos did not consistently increase the number of cancerous stomach tumors. "The weight of the evidence shows ingested asbestos is not hazardous to health," the report said. ASBESTOS UPDATE: East Greenwich Plan Deadline Moved Due to Fibro ---------------------------------------------------------------- Lisa Chamoff of Greenwich Time reports Asbestos was recently found above ceiling tiles in the Eastern Greenwich Civic Center gymnasium during the last part of a long-awaited roof replacement at the aging facility, extending the project a few weeks. Alan Monelli, the town's building superintendent, said workers replacing the ceiling tiles damaged by the leaky roof found that tape holding the insulation to the duct work in the gym contained asbestos. A company was called in to remove the substance, and they are scheduled to wrap up work at the Harding Road facility in Old Greenwich before the month's end. Monelli said while finding asbestos during work in old buildings is routine, the location was fairly unusual. "It's a little bit more difficult to encapsulate when you're up 18 feet in the air," Monelli said. "Usually we find it on a pipe someplace on a floor tile." Asbestos, once commonly used to insulate pipes, becomes dangerous when it is disturbed and airborne particles are inhaled. The work to remove it includes encapsulating it in plastic. The roof replacement cost the town $600,000, and was put in this year's capital budget after lobbying from residents who use the facility. Monelli said the town has a separate fund with $50,000 earmarked for asbestos abatement, and that the work at the civic center will likely cost around $20,000, mainly because the room is so large. There is just enough money in the account to cover it, he said. Asbestos could likely be found if work is done in other parts of the building, Monelli said. The work on the gym was supposed to be finished by June 1. The asbestos abatement will take about a week, but because the workers will have to be brought back to replace the tiles and lighting fixtures after the asbestos is removed, the gym probably won't reopen until June 25, though Monelli is aiming to get the work done earlier. Billie Schock, director of the civic center, said the gym has been closed all month for the roof replacement work, and a few June events had to be moved because of the delay. One birthday party will be held at the Western Greenwich Civic Center, 449 Pemberwick Road, another event was moved to the town's Dorothy Hamill Skating Rink and one group will be using a different room at the Eastern Greenwich Civic Center. "We got through it without any disruption to the residents," Schock said. In the meantime, other issues have led to problems for the 60- year-old building, formerly used as an employee recreation center by the Electrolux Corp., and purchased by the town in 1966. The stove in the civic center kitchen was declared unusable by the town fire marshal in March because the building lacks a fire- suppression system, Schock said. The Greenwich Senior Center was supposed to hold its annual lobster bake in the civic center gym on June 1, but after its chef learned that the stove was not available, officials decided to hold the event at their own building on Greenwich Avenue. ASBESTOS UPDATE: Long Island School Abatement Irks Parents ---------------------------------------------------------- Pat Guth for The Mesothelioma Cancer Alliance reports that parents are angry that no one saw fit to keep them informed about the asbestos abatement program at the Jamaica Avenue School in the Plainview-Old Bethpage (NY) School District, fearing for the health of their children. The Long Island school, which is still owned by the district but is leased to two day care programs, services about 100 Plainview families and a total of several hundred children each day, notes an article on the Plainview Patch. The school property is also used for other activities and by other organizations, including the Plainview Youth Soccer League, which has chosen to hold its games elsewhere during the renovations being carried out on the building's roof. The Jamaica Avenue School still boasts its original roof, which is about 60 years old, say district officials. The asbestos is not contained in the roof deck but in the flashing, they confirm, and the material is not thought to be friable. A district spokesperson maintains that simply removing the flashing will not disturb the asbestos that's contained within. "I want to say first and foremost, the safety and well-being of the district's children comes first," said Kim Parahus, the district's director of school facilities and operations. "I can say that as a parent, whether that's mine or anyone else's kids. We would not and will not expose the children to any danger." But parents of the children attending daycare at the facility said they are greatly dismayed at the lack of communication on the part of the district and fear that exposure to asbestos dust could eventually lead to health problems for their children, including the development of mesothelioma in the future. "Parents were not given ample notice about this project," stressed Jennifer Leest, who has a son at one of the onsite daycare centers, "nor were we given more specific facts until one week before the planned construction. We have been told that the District is keeping within what is considered 'code' for safety. This is not enough for me." One parent, who is an attorney, asked the district to "cease and desist" all work at this time and has requested -- along with other parents -- that the district wait until the summer break to proceed with the work. However, district officials say that won't work because of summer classes and the fact that children play outside frequently during the summer months. The new roofing material will be sprayed on and can circulate through the air, they explain, which is why children can't be outside when that step of the repair process occurs. The work was scheduled to commence on Monday, May 21 if all went as planned. ASBESTOS UPDATE: Christchurch Residents Win On Toxic Waste Issue ---------------------------------------------------------------- Charlie Gates of The Press reports that asbestos will not be dumped on a site near Christchurch homes after a city council U-turn. The plan to dump asbestos, which came from damaged and dug-up pipes around the city, at the Burwood Resource Recovery Park had angered residents. Council water and waste manager Mark Christison said the plan had been shelved in response to concerns from Parklands and Waimairi Beach residents. "Given the concern raised by those at the meeting, we have accelerated that decision and will be advising stakeholders that it has been agreed that asbestos will not be disposed of at Burwood and all asbestos would be disposed of at the Kate Valley landfill," he said. "The asbestos referred to in the proposal was asbestos contained in cement pipeline material, which is low risk and not asbestos from buildings. "I apologize for any confusion this may have caused residents, the mayor or elected members," Christison said. ASBESTOS UPDATE: Battin Building Remediation Costs Exceed Value --------------------------------------------------------------- The Laurel Outlook relates that what to do with the Battin federal building is the question that Yellowstone County Commissioners, economic development officials, and others are pondering. It's an issue local governmental entities should be concerned about even if they don't submit any proposals for its use, emphasized Steve Arveschoug, director of Big Sky Economic Development (EDA), as he advised his board members to "pass" on making any proposals to acquire the federal Government Services Administration's building. His recommendation was unanimously accepted by the board members of EDA and the Economic Development Corporation at their meeting, with several commenting that they would like to see the property returned to the private sector and go back onto the tax rolls. Arveschoug advised that the city, county and EDA met with the Congressional delegation "to explore options for federal support of the remediation of the Battin building. This needs to be considered whether the building goes for a public use or private- sector use," said Arveschoug. The cost of asbestos abatement in the Battin Building may well exceed the value of the property, leaving even a private sector development questionable. Arveschoug said that initially he envisioned forming some kind of public-private partnership that would include EDA, the city and county, and perhaps a private investor, to develop the 122,000- square foot building to serve the need for space for the governmental entities and lease or sell remaining space to the private sector. But with remediation and re-development costs uncertain -- and estimated as high as $30 million -- he abandoned the idea. "It's a very expensive undertaking," said Arveschoug. He told board members, "We are willing to provide some assistance as needed, utilizing our traditional economic development tools," should either the city or a private developer put forward a plan. Arveschoug reported that, should the building be put up for auction, they have already had calls of interest from private sector developers. An EDA board member pointed out that the building is ideal for a data center. EDA board member, Carl Siroky, mechanical manager of Phillips 66 Refinery, pointed out that asbestos is safe as long as it is left undisturbed. "You can manage it," he said, suggesting that could be the "best solution" for a private sector develop. Another board member, Scott Chesarek, said most emphatically, "The city needs to stay out of it." ASBESTOS UPDATE: Preliminaries on Geelong Clean-Up Plan Underway ---------------------------------------------------------------- The Geelong Advertiser reports that authorities planned to meet on May 17 to discuss how to manage a Western Beach site where a large amount of dumped asbestos has been discovered. Preliminary work has started to prepare a plan to clean up the affected North Geelong cliff and beach area, which sources believe has contained asbestos for at least 20 years. The City of Greater Geelong, Department of Sustainability and Environment (DSE) and Environment Protection Authority officials were set to begin talks on how to manage the site. Geelong's city services manager Gary Van Driel said it was important an agreement was reached with DSE, given the asbestos was found on Crown Land. The Geelong Advertiser revealed on May 16 that the council had asked the DSE to investigate the site about three years ago. However the area was only cordoned off just this month after several inquiries from the Geelong Advertiser, with people able to walk over broken asbestos on the shoreline and on the top of the cliff at Crowle St. Despite the Geelong Advertiser asking the DSE why it had not acted at the site, it declined to answer the question. Instead, DSE southwest public land services manager Greg Leece said: "DSE has inspected the foreshore in front of the Geelong Grain Corp Pier where asbestos has been exposed and is meeting with the City of Geelong and EPA to plan actions for safely remediating the site." Contractors involved with the demolition of International Harvester said the asbestos in the Corio Quay cliffs pre-dated the removal of the factory two decades ago. Dick Lewis, who was responsible for removing part of International Harvester's asbestos roof, said workers dismantling the plant saw the asbestos on the beach. "That asbestos was there then, in the beach," the recycling and demolition worker said. Asbestos from the International Harvester factory which was demolished between 1988 and 1993 had been disposed of at the Fyansford tip, Mr. Lewis said. Geelong Trades Hall is set to meet with council representatives before the end of the month to discuss creating an asbestos- mapping project across the city. Mr. Van Driel said the council had engaged an independent occupational hygienist to investigate and report on the material. ASBESTOS UPDATE: Bill to Have Employers Reimburse NHS Proposed -------------------------------------------------------------- BBC News Wales reports that employers would have to pay the medical costs of staff who suffer from exposure to asbestos if legislation proposed by a Welsh assembly member becomes law. Pontypridd AM Mick Antoniw's bill would oblige companies to reimburse the NHS for treating workers who suffer. AMs backed the proposal on Wednesday, May 16 -- the first step in what could be a long process of passing legislation. One expert said there was an argument for the idea but warned employers could "plead ignorance" in old cases. Mr. Antoniw worked on the cases of hundreds of victims and their families as a solicitor before being elected to the assembly. The Labour AM said negligent employers should be accountable for the cost to the NHS of asbestos-related diseases. AMs approved a motion allowing him to introduce the Asbestos (Recovery of Medical Costs) Bill by 54 votes to nil after a debate in the Senedd. The money raised by the legislation would go into a special fund for ministers to spend on the care of victims. The Welsh government would be able to recover the cost of treatment from an employer or an insurer after a judgment or settlement is reached in civil claims. It would to apply to employers outside Wales if the victim was treated by the Welsh NHS. Asbestos was widely used as a building material from the 1950s until the 1980s, often as fireproofing and insulation. The fibers can cause lung complaints if inhaled, such as asbestosis and the fatal mesothelioma. Professor Stephen Spiro, vice-chair of the British Lung Foundation, said the success of the proposed bill depended on when asbestos was used. "Asbestos has been known to be dangerous for some 20 years," he said. "Since the health hazard became known, he's (Mr. Antoniw) got a point, but if it was before it was known to be a danger then an employer could plead ignorance." Prof Spiro estimated around 2,000 people a year required treatment as a result of asbestos-related illnesses at a cost of between GBP5,000 and GBP20,000. "I would have thought it would be reasonable to have a cut-off - since we had the knowledge that asbestos was dangerous, employers should have been taking precautions," he said. "And if they haven't then there is an argument for them to pay back for treatment. Mr. Antoniw highlighted the dangers for people working at power stations, steel works and factories, and the risk of exposure in some public sector buildings, including schools. He said: "The cost of treating asbestos disease places a huge financial strain on an already over-stretched NHS in Wales. "I believe that where an employer has been negligent and civil compensation is due NHS Wales should be reimbursed with the cost of medical treatment." He added: "It won't matter where the exposure occurred. What is important here is where the medical treatment actually is received. "If it takes place in Wales and the legislation is passed then it will enable the [Welsh] government to recover the full costs of that medical treatment. "It doesn't create any new claim for damages that didn't already exist and it will only apply where an individual has already been able to establish that their employer was to blame for their exposure." ASBESTOS UPDATE: ACECO Workers Walk Out From Hazardous Conditions ----------------------------------------------------------------- Alison Bryant at Gazette.net reports that five workers removing asbestos from a Rockville building and their supporters are demanding safer working conditions, a living wage and representation at the work site. Employed by ACECO, LLC, a Silver Spring-based licensed asbestos abatement company, the workers went on strike, walking off the job, at 10:30 a.m. Thursday, May 17. Workers say they have been made to remove asbestos from the roof of the Parklawn Building, home of the U.S. Department of Health and Human Services, without proper ventilation and safety equipment. ACECO declined to comment. While workers removed asbestos from a contaminated area, the power went off, said Clara Bolanos, a worker, through a translator. "We are tired of the discrimination," Bolanos said. "We are tired of the abuse." The workers are non-unionized and say they have been threatened while discussing the option of joining a union. "We have a right to form a union," said Rigoberto Velazquez, a worker, through a translator. "We have a right to improve working conditions." Demands also include higher wages. Most workers make $12 per hour. The living wage in Montgomery is $13.20 per hour. That number will jump to $13.65 per hour, effective July 1. An employer may reduce the hourly rate paid under the law by an amount equal to, or less than, the per-employee hourly cost of the employer's paid share of the employee's health insurance premium, according to the Montgomery County wage requirements law. ACECO has a health insurance plan, but most of the workers cannot afford it, said Steve Lanning, director of organizing with Laborers International Union of North America. Workers also say they want to be able to form a union free of intimidation and harassment. About 20 people stood on a sidewalk across from the work site, holding signs reading "ACECO on Strike" and "Asbestos Unsafe." Representatives from Laborers International Union of North America joined the workers in chants and cheers. ASBESTOS UPDATE: Office of Compliance to Close AOC Workers' Case ---------------------------------------------------------------- Emma Dumain of CQ Roll Call reports that this month marks the official conclusion of the case of 10 Architect of the Capitol employees who were exposed to asbestos for years. Unofficially, the bitterness engendered by the case will continue to linger. Thirteen years and more than $173 million later, with many of them suffering health complications likely to last a lifetime, the workers' supervisor is less satisfied with the outcome than the agencies involved. How this came to pass is a story, in part, about an agency Congress created to ensure safety in the legislative branch workplace that says it has never had adequate resources to do so. The Office of Compliance is expected to close the books before the month's end on the administrative complaint it filed in 2006, the first and only such complaint since its inception in 1995. A prelude to a lawsuit, the complaint charged the Architect of the Capitol with failing to eliminate years-old health and safety hazards first discovered in 2000 in the miles-long underground utility system that provides steam and chilled water to Capitol Hill. Among those hazards were falling concrete, excessive heat and asbestos. Veteran lawmakers and staffers should remember the incident well: Members of Congress were outraged, the national media weighed in and the tunnel workers were compensated an undisclosed amount for harassment they received in retaliation for whistle-blowing. Under a settlement ultimately agreed to by the OOC and the AOC, the latter agency promised to complete repairs to the tunnels in five years. Millions of dollars later, the OOC says the AOC has fulfilled its obligations on time. In official responses, both offices put a positive spin on the saga's conclusion. "The tunnel project shows what can be achieved when all of us on Capitol Hill work together toward a common goal," OOC Executive Director Tamara Chrisler said. "Architect of the Capitol Stephen Ayers is extremely proud of the efforts of AOC employees and contractors to make improvements to the utility tunnel system, and to have achieved the goals of the settlement agreement so successfully," AOC spokeswoman Eva Malecki added. But ex-tunnel supervisor John Thayer, who now runs a taxidermy business in Maryland and still suffers from asbestos poisoning, said he feels little vindication. "After 15 years of ignoring health issues, you don't settle with anybody," Thayer said of the OOC. "This announcement's just paperwork. That's all it is." As federal employees, Thayer and the others were barred under the Federal Employees' Compensation Act from suing their employer for personal injuries they incurred as a result of the conditions in the tunnels. It took six years before the OOC filed an administrative complaint against the AOC, from the time the Office of Compliance issued its first citation in 2000 to the time it piled on two more at the beginning of 2006. The OOC first threatened legal action in February 2006. The AOC agreed to settle 16 months later. But what was happening during those years between citations? Why were there no follow-up visits to ensure that the warnings were being taken seriously? Could the AOC have been forced to address the hazards sooner? In an interview with Roll Call, OOC General Counsel Pete Eveleth would not elaborate on what happened before he arrived at the agency in 2003. He did, however, suggest that the agency was -- and still is -- overwhelmed by the number of hazards in Congressional properties and lacked sufficient resources to fully inspect all facilities. Though the OOC is responsible for monitoring safety compliance in legislative branch agencies on and off Capitol Hill, it wasn't until fiscal 2006 that the OOC had the money to hire a full-time employee to conduct Occupational Safety and Health Administration inspections. Prior to that, the OOC had one detailee from the Labor Department and two part-time contractors to cover the entire 16 million-square-foot Capitol campus. As of May 17, the agency has three staffers monitoring all legislative branch facilities for OSHA compliance, but only one is full time. "Given the aging of the facilities on Capitol Hill and the complexity of the maintenance, certainly having one full-time inspector to address all the various types of hazardous conditions is woefully inadequate," said David Marshall, an attorney with Katz, Marshall & Banks who represented the tunnel workers' retaliation complaint. Thayer, who still harbors considerable resentment about the case, attributed the AOC's delay in addressing the hazards to an "out of sight, out of mind" mentality. "We're talking about a 100-year-old tunnel system that nobody sees. Nobody ever goes down there," he said. He added that while the OOC was also evidently understaffed and overworked, he couldn't condone the decision not to take the AOC to court. "I told them this when they signed the 'landmark agreement,'" Thayer recalled of his conversation with the OOC in 2006. "I told them, 'Why aren't you holding [the AOC] responsible for the citations, and not only citations, but the reissuing of citations? Now you're going to give them another five years to fix the problem? You let them off the hook.'" However belated the OOC's actions may have been, Eveleth said the complaint and its fallout carried real weight -- and, like Chrisler and Malecki, he is willing to give the AOC some credit for its compliance post-settlement. "Filing the complaint sent a message that we will not put people's lives at risk in circumstances when employing offices offer no viable solutions for abating a very serious hazard," he said. "This settlement could serve as a template for mutually resolving future complex abatements of dangerous safety hazards." ASBESTOS UPDATE: Hearing on Weirton Steel Property Case Starts -------------------------------------------------------------- Mark Law of The Herald-Star reports that an expected two-day hearing began Wednesday, May 16 in Jefferson County Common Pleas Court concerning a lawsuit filed by the Ohio Attorney General's Office and the state Environmental Protection Agency against a company that bought the former Weirton Steel property along the Ohio River in the city and the alleged improper removal of asbestos. The lawsuit was filed in March 2010 in Jefferson County Common Pleas Court against Arthur David Sugar, Sr., and his company, Dave Sugar Excavating of Petersburg, Honey Creek Contracting Co. of New Middletown, Excavation Technologies of Petersburg, ADS Leasing Corp., and John S. Evan of Poland and his company, Howland Co. of Youngstown. Sugar purchased the former Weirton Steel site at 200 Slack St. in 2005. The site, according to the lawsuit, contains asbestos-containing waste materials and friable asbestos material. The lawsuit claims Sugar's company and Evan and his company created an air nuisance and failed to remove regulated asbestos- containing material prior to demolition. Sugar and his construction company, Honey Creek Contracting Co., in April 2010 pleaded guilty in U.S. District Court in Columbus to conspiracy and four counts of violating the Clean Air Act rules related to the improper removal and handling of asbestos in connection with work at the former Weirton Steel plant. Sugar personally was fined $10,000 and the company was fined $50,000. The common pleas lawsuit said Sugar and his companies failed to provide written notice to the Ohio EPA on days that parts of the facility were demolished. Sugar and his companies and Evan and his company failed to wet the asbestos, seal it in approved containers, properly label and seal the container, the lawsuit also states. Attorney Clint White of the state attorney general's office told Common Pleas Judge Joseph Bruzzese, Jr., on May 16 that Sugar saw a "potential for big money" in scrap metal from the Weirton Steel property. White said there is no safe level for asbestos, adding the material can cause serious respiratory damage and cancer when inhaled. Attorneys Charles Dunlap, representing Sugar, told Bruzzese the issue of asbestos removal violations had been settled in federal court. Sugar hired other companies after that to properly remove the asbestos. David Moore, representing Evan, said the case centers on the Ohio Environmental Protection Agency's interpretation of the asbestos removal regulations. Bruzzese is presiding over the hearing and he will determine monetary damages, if any, against the companies. The judge in March granted a partial summary judgment ordering Sugar and Honey Creek Contracting to comply with asbestos removal regulations. White said the state will be asking for damages in the hundreds of thousands of dollars. ASBESTOS UPDATE: Chevy Chase Fire's Toxic Rubble Displaces Tenants ------------------------------------------------------------------ Kristen Griffin for the Mesothelioma Cancer Alliance reports that after a devastating fire that ripped through an apartment building in Chevy Chase, MD, earlier in May, residents were told that they could not return to their homes not because of the extensive fire damage but for the asbestos found during the post-fire clean up. Nearly 20 residences at the Round Hill Apartments were either fully destroyed or damaged by the fire. Fire officials now believe that the fire was intentionally set, but the motive or the person involved has yet been identified. After the fire was contained and extinguished, officials let residents return to the homes to retrieve personal belongings. The apartment complex was considered unsafe for some inhabitants as it underwent restoration after the fire. Late last week, officials informed residents, as many were packing up personal items, that parts of the complex were unsafe, not from the fire damage, as it would be expected, but from asbestos contamination. Many of the residents were devastated to learn that they could not return to their homes because of the risk of asbestos exposure. Though it is unclear from reports, but it is possible that the asbestos became a serious health threat to residents after the fire exposed and damaged building materials that contained asbestos. Most, if not all, public and private buildings built up until the latter part of the twentieth century contained products with asbestos. As an incredibly versatile material, asbestos is a naturally- occurring mineral that had numerous manufacturing applications including usage in building, electrical and plumbing materials. Naturally, asbestos does not pose an immediate health threat to people, but when the material is disturbed in any way, the resulting fibers become highly toxic. Linked to many deadly diseases, asbestos exposure is the only known cause of mesothelioma, a rare form of cancer that attacks the lining of the lungs, heart or abdominal wall. In most cases of mesothelioma or other asbestos exposure related diseases, the disturbed asbestos fibers become airborne and are more likely to become inhaled or ingested. Once asbestos particles are inhaled, they can become lodged in the lungs, resulting in considerable damage that may lead to mesothelioma, asbestosis or even lung cancer. With Round Hill Apartments, it is unclear when residents will be able to return to their homes or how long it will take for the apartment complex to not only be fully decontaminated from the lingering asbestos but when the restoration from the fire will be completed. ASBESTOS UPDATE: Anxious Christchurch Councilors Forced U-Turn -------------------------------------------------------------- Paul Gorman at The Timaru Herald reports pressure from anxious Christchurch City councilors has forced a U-turn by council staff planning to dump asbestos in Bottle Lake Forest. The change of heart comes with an apology and an admission that nearby residents should have been better consulted. Parklands and Waimairi Beach residents just a few hundred meters from the controversial site earmarked for the dumping of up to 5,000 tons of asbestos-containing concrete pipes have been outraged at the plan and the lack of consultation. The May 17 announcement that the material would go to the Kate Valley landfill in North Canterbury instead of the Burwood Resource Recovery Park was greeted with delight. Bower Ave resident Philippa Grey said it was "awesome". "That's fantastic. We're rapt. There are going to be so many pleased people," she said. "We are so thankful, from me personally and all the residents, that they have listened to us and taken it on board and made the right decision." Mayor Bob Parker said residents were "not the only ones" pleased with the scrapping of the Burwood option. "I'm very pleased. This will come as a large relief to people and it's great news," he said. "It will take a bit more weight off the shoulders of folk in the east." Council city water and waste unit manager Mark Christison said he had made the decision to remove Burwood as an asbestos dump from the resource consent application and apologised for "any confusion this may have caused residents, the mayor or elected members". "It's always a question about how far out you take the consultation; always a matter of judgment. Maybe myself and others didn't quite get it right this time," he told The Press. City councilors met Christison before the May 16 council meeting to express their concern about the plan. The Press understands they were close to unanimous in their opposition to it. Cr Aaron Keown, a member of the Canterbury regional landfill joint committee that had not been told of the asbestos dump, said he did not get a chance to follow through on his threat to go to council chief executive Tony Marryatt about the plan. "Mark [Christison] explained it to us really well. It was agreed in a couple of minutes. It never went to a debate," Keown said. "He said, `If it's the will of the council we can take it to Kate Valley', so done deal. "Tony Marryatt gives him a nod, Bob [Parker] gives him a nod and everybody is happy. It was pretty quick and painless." Burwood-Pegasus councillor Glenn Livingstone said he was "delighted" council staff had listened and reacted to the anger of the community. "The council has taken seriously their legitimate concerns and I'm also delighted that a very serious potential health matter has been averted," he said. Earlier, Canterbury District Health Board member Andrew Dickerson raised his concerns about the resource consent process. "They have only invited a handful of parties to make submissions. I wouldn't have expected something like that in a democratic country like New Zealand," he said. Green Party MP Eugenie Sage said it was "one of the shortest campaigns ever", and the decision would remove stress from the community. "It does highlight the need for the Canterbury earthquake legislation to be reviewed to give us back the normal RMA [Resource Management Act] processes where people can participate and challenge," she said. Gill Cox, the chairman of Transwaste Canterbury, which comprises the Christchurch City and Ashburton, Hurunui, Selwyn and Waimakariri district councils and operates the recovery park, said he was not involved in the decision. He did not think there would be any problems dealing with the asbestos material at Kate Valley. ASBESTOS UPDATE: Toxic Debris in Kensett Awaits Official Decision ----------------------------------------------------------------- The Associated Press reports that officials in the White County town of are trying to work out a plan to dispose of the ruin of 4 burned buildings that contain asbestos. The buildings burned almost three months ago but Mayor Max McDonald says all the property owners have to agree on an asbestos removal plan. The Daily Citizen reports (http://is.gd/wmag4W)the city has been taking bids but the cost is prohibitive. The city owns 1 of the buildings and the other three are in private hands. Officials say it wouldn't make sense to remove the buildings one at a time. ASBESTOS UPDATE: Boston Building Owner Admits Environmental Crimes ------------------------------------------------------------------ Judy Fahys of The Salt Lake Tribune reports that owners of the Boston Building in downtown Salt Lake City pleaded guilty on May 16 to a felony violation of the Clean Air Act in connection with asbestos removed during the building's renovation five years ago. At a hearing before U.S. District Judge David Nuffer, HP Boston Building, LLC., agreed to a fine of $500,000 and three years probation, the maximum sentence allowed for the offense. The violation of the National Emission Standard for Hazardous Air Pollutants occurred when workers did the demolition and renovation at 9 Exchange Place May 8 through about Sept. 13, 2007, without being told about asbestos contamination in the ventilation system. "Work practice standards for the handling of asbestos exist to protect human life," said David B. Barlow, U.S. attorney for Utah. "When companies have information that requires further investigation regarding asbestos in their building and then fail to take the necessary measures to protect their workers and the public from asbestos exposure, they will not only have to spend vast sums of money remediating the contamination, they will be prosecuted." "Exposure to asbestos can cause cancer and other serious respiratory diseases, so demolition work must be conducted safely and legally," added Lori Hanson, who oversees the Environmental Protection Agency's criminal enforcement program in Denver. The sentence "demonstrates that those who 'cut corners' and commit environmental crimes will be prosecuted." Max Wheeler, an attorney who represented the real estate company and entered the guilty plea on its behalf Wednesday, said asbestos in the ventilation system had been overlooked during the initial inspection of the building shortly after the company bought it in 2007. When crews started the work, they knew about the hazardous material in floor tiles and on pipes and took proper precautions. But because they did not know about the asbestos in the ventilation system, Wheeler said, they failed to take proper precautions, as required under the law. The attorney said the job was shut down as soon as the problem was identified. The company spent $700,000 on the asbestos remediation, he said. "No question we made a mistake moving the material" when workers were unaware of it, he said. ASBESTOS UPDATE: Celebrity Dies of Lung Cancer Due to Toxic Dust ---------------------------------------------------------------- Mark Hall of The Mesothelioma Center reports the Queen of Disco Donna Summer died on May 17 in her Naples, Fla., home after a quiet battle with lung cancer. She was 63. The five-time Grammy winner was best known for hits like "Love To Love You Baby," "Bad Girls" and "Hot Stuff". Summer did not openly discuss her battle with cancer or asbestos exposure. The news of her death came as a surprise to many. Family, friends and fans are now recounting the positive memories of the singer, in addition to the causes of her cancer. Sources state that her cancer developed after inhaling toxic dust from the 9/11 Attacks site. This is likely to be asbestos- contaminated dust, which has been known to affect countless New Yorkers, specifically first-responders to the September attacks. Asbestos is known to cause multiple diseases including lung cancer, mesothelioma, asbestosis and pleural plaques. Exposure to this hazardous material traditionally occurs to people who work in occupational fields and in industrial settings. In the case of Summer, her proximity to Ground Zero may be the culprit. She was in her New York apartment on Sept. 11, 2001, when the attacks occurred. Asbestos dust clouds were prevalent throughout the city following the collapse of the Twin Towers. In 2008, Summer recounted her feelings of that dreadful day. "I was really freaked out by the horrific experiences of that day. I couldn't go out; I didn't want to talk to anybody. I had to keep the blinds down and stay in my bedroom. I went to church and light came back into my soul. That heaviness was gone." Lung cancer is cited as the leading cause of cancer deaths for Americans, accounting for nearly 200,000 diagnoses each year. Asbestos is believed to cause as much as 4% of all lung cancer cases. Like Summer, countless New Yorkers have developed asbestos-related diseases and respiratory issues as a result of the dust cloud that lingered in the city. Thousands of Ground Zero workers have reportedly developed chronic diseases after the attacks. If it is confirmed that the Queen of Disco's cancer was caused by asbestos exposure, she would join the list of other notable Americans to have died from an asbestos disease. According to sources, the death came unexpectedly to the family. Relatives have reached comfort through reminiscing about the singer's contributions to music, society and family. "Early this morning, we lost Donna Summer Sudano, a woman of many gifts, the greatest being her faith," the family released in a statement. "While we grieve her passing, we are at peace celebrating her extraordinary life and her continued legacy. Words truly can't express how much we appreciate your prayers and love for our family at this sensitive time." President Barack Obama also commented on the news of Summer's death by releasing a statement. "Michelle and I were saddened to hear about the passing of Donna Summer. A five-time Grammy Award winner, Donna truly was the 'Queen of Disco.' Her voice was unforgettable and the music industry has lost a legend far too soon. Our thoughts and prayers go out to Donna's family and her dedicated fans." ET reported that Summer will be laid to rest in Nashville, Tenn. Summer is survived by a husband and three children. ASBESTOS UPDATE: National Restorations Systems Faces $19,050 Fine ----------------------------------------------------------------- Ira Kantor of The Boston Herald reports the Massachusetts Department of Environmental Protection has penalized National Restorations Systems, Inc., $19,050 for asbestos violations uncovered at the Boston Common Garage in September 2010. The Illinois-based company has a regional office in Mansfield that was hired as a subcontractor to conduct demolition and renovation activities at the garage, located at Zero Charles Street in downtown Boston, according to MassDEP. On Sept. 8, 2010, a Boston public safety official stopped a trailer containing suspected asbestos-containing materials. The vehicle and trailer were instructed to return to the site and the materials in the trailer were sampled for the presence of asbestos. Tests would later reveal that samples of pipe-covering contained asbestos, MassDEP said, adding the company failed to submit notification prior to demolition and conduct proper asbestos removal procedures. National Restoration Systems will pay $9,500 of the penalty, and if it remains in compliance for a period of one year, MassDEP has agreed to suspend the remaining $9,550. Company president Ron Reagan could not immediately be reached for comment. ASBESTOS UPDATE: Carcinogenic Debris Appear at Fyansford Property ----------------------------------------------------------------- Mandy Squires of The Geelong Advertiser reports that asbestos has surfaced on Fyansford land earmarked for residential development. Geelong Trades Hall secretary Tim Gooden on May 18 said the land, set to become Fyansford Green, was "another time bomb waiting to happen." The Geelong Advertiser has learned of several different asbestos- plagued sites across the city, after an investigation earlier this month revealed a North Geelong beach was littered with the potentially lethal material. An adjacent cliff was packed with exposed and broken asbestos sheeting. Mr. Gooden said the securely fenced parcel of vacant land on the corner of Hyland St. and Deviation Rd. in Fyansford had links to the old cement works. It was understood much of the vacant land had been filled following the demolition of buildings at the cement works, he said. Fragments of broken asbestos were now appearing on the outside of the tall mesh and barbed-wire fence, where it could be stepped on by pedestrians, Mr. Gooden said. "It's going on to the footpath and that's a worry," he said. A large billboard near the vacant land advertises the proposed residential development Fyansford Green. The slogan for the development is Life Evolves. According to a website promoting the development Fyansford Green is "an exciting new residential and commercial development based on a sustainable living environment that offers a safe place for people to live, shop, work and play". Up to 2000 new homes are planned for the area. Geelong Trades Hall is also set to investigate a Super Six corrugated roof at a business in Belmont, which is reportedly shedding fibers in high winds and impacting on locals. Several storage sheds along the Geelong waterfront were also replaced this year -- at an estimated cost of $1.5 million each -- after work was stopped over Christmas due to health concerns. Meanwhile, Barwon Health is removing material believed to be asbestos from a construction area on level three of Geelong Hospital. A licensed asbestos removalist was scheduled to carry out the work at the hospital on May 21. The material is contained in a small flange, measuring less than one meter in length and its removal poses no risk to the public. Mr. Gooden said asbestos was an ongoing issue across the city's domestic and commercial sectors. However, without a national policy to deal with identifying and removing asbestos, it often fell into the too hard and expensive basket. "We have got this explosive mine all over the country but because it's a silent killer, it's getting missed," he said. "It's not that easy to get people to move stuff unless someone kicks up a stink. "It's all to do with cost. No-one wants to pay for it." Mr. Gooden said unions wanted to set up a national authority to deal with the issue, which should have the goal of having the country asbestos-free by 2030. "This problem is not going to go away and people will continue to die unless there is an overall and consistent plan to engage all levels of government to, first, identify it and then . . . remove it." ASBESTOS UPDATE: Manly Vale Park Cleared of Illegally Dumped Fibro ------------------------------------------------------------------ Steven Deare at whereilive.com.au reports visitors to a Manly Vale park can rest assured no more asbestos materials remain, according to a local soccer club. Manly Vale Football Club president Terry Gatward was confident its home ground of David Thomas Reserve posed no danger after a specialist inspected the site. Locals became alarmed when they found six fibro pieces among mounds of top soil at the park. Children often play on the dirt, which is used to repair the field. Warringah Council staff removed the pieces and called in an independent occupational hygienist. He declared it safe, to the relief of Mr. Gatward. "We have to rely on the advice from experts. This is a specialist area," he said. "I feel the council acted quickly and smartly." However, Nicky Crowley, whose children play for the club, could not believe the council had left some of the topsoil at the ground. "I wouldn't let my kids play in that dirt," she said. "There was asbestos found there and I still think all the dirt should be removed." A council spokeswoman said the pieces it found and tested contained bonded asbestos and did not look like they were recently broken. "This means the asbestos was held together," she said. She said the fibro was illegally dumped. "Dumping asbestos, especially in an area where children play, is an appalling crime and we are asking anyone who has seen suspicious activity to call council," she said. Fines for illegally dumping asbestos can be as high as $1 million for corporations and $25,000 for individuals. ASBESTOS UPDATE: Test Clears Marshalltown Fire Debris of Hazards ---------------------------------------------------------------- David Alexander of the Times Republican reports that air samples taken from 135 E. Main St. have come back asbestos free. The company removing the debris, S.L. Baumauer Co., took samples May 8 and 9 and submitted them to Ames Environmental, Inc., for analysis, said Fire Chief Steve Edwards. Edwards said he visits the site daily to see how the removal is coming along. Concerned citizens frequently stop him and ask about the risk of asbestos exposure. He said he hopes these results will alleviate those concerns. Tina Shapley, director of the Marshalltown Central Business District, said she doubts there was asbestos in the building to begin with. If there was, she said, it was likely removed or encased during one of many remodels throughout the years. For safety, the Department of Natural Resources simply assumes any building as old as the New England Building has asbestos. Until tests proved otherwise, the assumption was that the building contained asbestos. Mark Lamer, project manager at S.L. Baumeier Co., said the air tests do not prove there is no asbestos in the rubble, just that it isn't becoming airborne. He said, since asbestos is used in one area of the building and not in others, testing the debris would prove fruitless. They just have to make sure it stays wet while they are removing it. Shapley said she has not heard complaints about the potential for asbestos exposure and that the issue with the site is its unsightliness, not whether it's a health hazard. ASBESTOS UPDATE: Truck Full of Hazardous Materials Hits Bridge -------------------------------------------------------------- ABC News reports that a truck believed to be carrying asbestos sheeting has hit a bridge at Corinda in Brisbane's south-west, spilling its load and causing traffic chaos. Emergency services cordoned-off an area on the corner of Oxley and Quarry roads. Firefighters worked to dampen down the product and the Environmental Protection Agency assessed the situation. Oxley Road was closed in both directions at the rail overpass. ASBESTOS UPDATE: Abatement Underway For Pacific Highway Upgrade --------------------------------------------------------------- Nicholas Houghton of The Coffs Cost Advocate reports that removal of asbestos on the Sapphire to Woolgoolga section of the Pacific highway upgrade was set to continue on the week of May 21. The asbestos was located in an old council water main after it was identified in council records before work began on the project. Contractors have removed more of the pipe and have set up exclusions zones near the affected sites. A Roads and Maritime Services spokesperson said on May 19 that the bonded asbestos poses no danger to the public or workers. "We removed two truckloads of fill from the site which included asbestos," the spokesperson said. "The asbestos will be taken to the Grafton tip, which is licensed by the EPA as a disposal site for this material. "The asbestos is currently at a secured site within a sign-posted exclusion zone and covered with plastic." ASBESTOS UPDATE: UAE Still Needs to Enforce Anti-Asbestos Rules --------------------------------------------------------------- Vesela Todorova of The National reports asbestos remains a potential killer six years after it was banned, and experts are calling for safety regulations in Abu Dhabi to be expanded to the rest of the country. The substance is a known cause of cancer and its fibers can spread through the air when old buildings are demolished. Once a popular form of insulation, asbestos is either partially or completely banned in 60 countries. The UAE has prohibited its use since 2006, which means the safe removal of the material will remain an issue for years. "There is still a misunderstanding that asbestos is not a problem in the UAE," said Charles Faulkner, principal asbestos consultant at WSP Environment and Energy, a consultancy in Abu Dhabi. "Everyone associates the UAE with new buildings and asbestos is viewed as an antiquated and obsolete material." Dealing with it, he said, "differs from emirate to emirate and from project to project. It has progressed very well in Abu Dhabi." New health and safety guidelines in Abu Dhabi require that a company must provide documents showing that asbestos has been identified and safely removed from a building before it can be demolished. The assessment and removal can be carried out only by licensed companies. Mr. Faulkner said the rules were comprehensive and should be used as the basis for federal legislation. "Just as this is applied in Abu Dhabi, there could be something of similar quality applied throughout all seven emirates." Asbestos pipes are still being manufactured and used in Dubai. While the substance is safe if undisturbed, it can release tiny fibers if it wears or breaks down. These particles are easily airborne and so small that, if inhaled, they penetrate deep into the lungs, causing asbestosis, mesothelioma and lung cancer. The diseases are almost always fatal. Asbestos can be a risk to construction workers and anyone in the vicinity of a demolition site. Mr. Faulkner said more should be done to educate the construction industry about the dangers. Other experts say authorities should focus more on enforcement. "The laws they are bringing in are fine," said Edward Forero of GTS, a company that specializes in demolition and asbestos removal. "The problem is the enforcement side - there is no enforcement agency." Charles Kinniburgh, managing director of Angus Asbestos Removal, said: "Implementation of the rules is still at the infancy stage. The regulations are not policed very well. If buildings are going to be demolished, who is checking for asbestos and which company is removing it, these checks are very important. "There are still companies out there who are doing things they should not do." Engineer Abdulaziz Hussni Zarub, director of the health and safety and environment division of Abu Dhabi Municipality, said the government agency needed two to three more months to roll out the new rules. "The asbestos program is not yet implemented fully," he said. The Abu Dhabi Government has already made provisions for handling asbestos waste through the Centre of Waste Management - Abu Dhabi, he said. The municipality has also approved 36 contracting companies to work on demolition projects. Since October last year, it has handed out 54 demolition permits, said Mr. Zarub. There are about 300 buildings schedued for demolition in Abu Dhabi this year and next. Municipal authorities in Dubai and Sharjah were not available for comment. ASBESTOS UPDATE: Chicopee Council Votes Out Library Abatement Plan ------------------------------------------------------------------ Jeanette DeForge of The Republican reports that the Chicopee City Council voted against spending $160,000 to remove asbestos and gut much of the former library so its structural integrity can be tested. The council voted 11-2 against spending the $160,000 requested by Mayor Michael D. Bissonnette. The money was to come from the sale of real estate account. About $40,000 more is expected to be needed to hire a structural engineer in the future, Bissonnette said. The expenditure was originally proposed last month, but the City Council tabled it until it could have a meeting with Bissonnette about all of the capital improvement projects the city is facing and to discuss the city's bonding situation. "That is disappointing and surprising given that none of the councilors had indicated that it was a problem after we held the capital projects meeting," he said. Bissonnette said he will now seek funding from grants or other sources for the project. Councilors did not bring up specific concerns then, but later some said they did not think this is the time to start a new project since the city is expecting to start construction of a new senior center this year and should begin renovations of the old Chicopee High School in the following year. The police station also needs to replaced or renovated. "We have two projects with the senior center and the high school. I think we need to be more prudent with our money, we just spent $5 million on a snowstorm," Councilor Timothy S. McLellan said. Councilor Jean J. Croteau, Jr., said he had mixed feelings about the issue. He understands the city cannot think about improving the library until they know it's condition but said there are a number of other projects happening at the same time. In the end he voted against spending the $160,000. Frederick T. Krampits agreed with Croteau that both sides of the argument have merit, but said he is not sure now is a good time to do the engineering study now. "If we shelve the plans . . . five years later say we pull the plans and we find out they are out-of-date," he said. But Councilor Gerry Roy, who voted for spending the money, disagreed saying no plans can be made without analyzing the structure. "We need to know what we are dealing with," he said. "I think the mayor has done a good job dealing with the oddball projects he was dealt." If the library is found to be structurally sound, Bissonnette would like to build a second floor, attach it to the adjacent city hall and make it handicap accessible. The building may allow the school department to move from the administration building at 180 Broadway, which has serious structural problems. Some councilors questioned if the School Committee is interested in moving to the former library, but school officials have said they are interested in pursuing the idea. ASBESTOS UPDATE: B.F. Goodrich and Guard-Line Face Lawsuit ---------------------------------------------------------- David Yates of The Southeast Texas Records reports B.F. Goodrich and Guard-Line have recently been named as defendants in a lawsuit alleging they exposed the late Roland Roberts to asbestos during his refinery career. Representing Roberts' estate, Rosella Roberts filed the suit May 15 in Jefferson County District Court. According to the lawsuit, from 1961 to 1996 Roberts worked at the Goodrich facility in Port Neches, where he was allegedly exposed to asbestos. "Sadly, this exposure led to his contraction of asbestos-related lung cancer which ultimately took his life in May 2010," the suit states. The suit further alleges that the defendants knew or should have known about the health hazards surrounding asbestos but negligently failed to keep workers safe. The plaintiff is seeking exemplary damages. Attorney Devin McNulty of the Houston law firm Williams Kherkher Hart & Boundas represents her. Judge Bob Wortham, 58th District Court, is assigned to the case. Case No. A192-447 ASBESTOS UPDATE: York Carriageworks Employee Dies of Mesothelioma ----------------------------------------------------------------- Jennifer Bell of The Press reports a former York carriageworks employee was exposed to asbestos on a "daily basis", an inquest heard. John Phillip Wright, of Linden Way, York, contracted the asbestos- related disease mesothelioma after being repeatedly exposed to the deadly dust at the factory where he worked between 1950 and 1970. Mr. Wright died on October 4 last year in St Leonard's Hospice, York, at the age of 77, after months of deteriorating health, his widow Pauline Wright, told the court in a written statement. The inquest heard how Mr. Wright had joined the carriageworks shortly before his 16th birthday as an apprentice coach bodymaker and repairer. He worked on and off at the site until he left at the age of 37 to work for a brief spell at Leeds Council before joining City of York Council, where he stayed until he took early retirement at the age of 60. Mr. Wright was diagnosed with pleural thickening in 2001. He thought that was the extent of the asbestos disease that he would suffer, but the court heard that his health began to deteriorate in 2003 when he began to suffer heart problems which left to him having a pacemaker fitted. In December 2010, an X-ray revealed tumors on his lungs and he was diagnosed with mesothelioma. He was later admitted to St Leonard's Hospice, on Tadcaster Road, York, where he later died. A cause of death was given as malignant mesothelioma. Before he died, Mr. Wright told Corries Solicitors how he often worked in a dusty environment in different parts of the factory with no protective clothing or facemask. He also said in a statement that he was exposed to asbestos dust on a "daily basis". He said he often spotted "a fine blue, grey haze" and could see bigger pieces of asbestos floating in the air, he said. He recalled one occasion when a "blob of asbestos" dropped into a colleague's coffee. York Coroner Donald Coverdale recorded a verdict that Mr. Wright died of the industrial disease malignant mesothelioma, a form of cancer most frequently caused by exposure to asbestos. The family's solicitor, Howard Bonnett, of Corries Solicitor, said: "This is yet another sad case of a former carriage works man dying prematurely. "Mr. Wright had assumed that pleural thickening was the extent of his asbestos disease and that he would enjoy a full and long retirement with his wife, Pauline. Regrettably this has not been the case." The Press reported earlier this year how at least 140 former York carriageworks employees and their relatives have now been killed by asbestos. ASBESTOS UPDATE: Spring Valley Illegal Renovation Led to Exposure ----------------------------------------------------------------- Alexandra Wren of The Nyack-Piermont Patch reports that The Village of Spring Valley has issued a stop work order at the old Spring Valley High School, where officials said renovation work being done without permits led to the collapse of a mezzanine in the auditorium and a worker being briefly trapped in the rubble. Although two workers suffered only minor injuries in the collapse at the building, now the site of the United Talmudical Academy, officials said workers and emergency personnel were exposed to asbestos inside the building. Spring Valley Fire Department Capt. Ray Canario said that all of his departments volunteers who were in the building on may 18 to investigate the collapse had to turn in their firefighting "bunker gear" so it could be bagged and stored in a secure area to be decontaminated. Canario said Spring Valley has issued a stop work order on the renovations of the old high school and that work was being done without required permits and approvals. Canario said he also called in inspectors from the federal Occupational Safety and Health Administration to investigate the worksite. Inside the old high school, workers on May 18 were using a jackhammer for demolition work. Canario said that at about 1:17 p.m. an emergency call was received alerting police and firefighters that an area about 10-feet by 10-feet of the mezzanine in the auditorium had collapsed. Canario said two workers were in the area of the collapse, and one worker was trapped by falling debris. However, the worker was able to free himself from the debris. Both workers were taken to the hospital for treatment. A third worker in the building was not in the area affected by the collapse. Police and firefighters searched the building for anyone who might have been trapped or injured. "We're amazed no one was killed in this," said Canario. During the search of the building, officials said they discovered exposed asbestors. As a result, Canario said all of the gear used by firefighters needs to be specially cleaned to remove any asbestos -- a natural mineral that has long been used for insulation and heat protection but can cause illness when it gets into the lungs. ASBESTOS UPDATE: Remediation Works Underway in Punta Gorda School ----------------------------------------------------------------- Paul Mahung at Lovefm.com reports that preliminary work started early on May 19 for the rehabilitation and reconstruction work on three school buildings at St. Peter Claver School in Punta Gorda, Toledo. The preliminary work began with the removal of old and hazardous asbestos roofing from three buildings which requires temporary closure of school classes as explained by St. Peter Claver School Project Coordinator Fabian Cayetano. Fabian Cayetano said, "A request has been made from the Ministry of Education for the closure of the school for the removal of the asbestos from St. Peter Claver school building, three of them on the following days, Friday May 18 which is Teachers Day, Monday May 21 which is Commonwealth Day which is a holiday and two non school days which are Tuesday May 22 and Wednesday May 23. On these days there will be no school and this will facilitate the removal of the asbestos from St. Peter Claver building." Because of possible negative effects on those removing the asbestos, safety and protection measures for those involved at the work site are implemented and adhered to as outlined by Anthony Mai of the Ministry of Environment. "The Department of the Environment and the Solid Waste Management Authority has given strict procedure and conditions under which the removal and disposal of the asbestos must occur. For example every person removing the asbestos must use personal protective equipment for their own personal safety and also the Department has set certain restrictions in terms of setback from the building which no one will be able to enter. Also at the end of the day the asbestos will be placed within containers that is sealed with plastic, when all the asbestos has been removed, this container will be taken to the mile 24 dumpsite where it will be properly disposed of," Anthony Mai said. For the safety of members of the public who need to pass by the buildings, the flow of traffic through the area has also been temporarily diverted as directed by Punta Gorda Transport Manager Ignacio Sho. Ignacio Sho said, "I want to inform the public and the residents of Punta Gorda that the street will be closed on Friday 18th, Monday the 21st, Tuesday 22nd and Wednesday 23rd for the removal of the asbestos roof. That is the reason why certain streets will be blocked off and I want the public to adhere to the street that will be blocked off because it is for their personal safety. The following streets will be blocked off, corner Main Street and corner of Clement Street, corner of Jose Maria Street and corner of George Street and the street will be blocked off from six a.m. to six p.m from Friday to Wednesday. Also the James Bus manager is also notified that the runs will be changed for the duration of the project, starting Friday to Wednesday and after the project is completed the street will be opened as normal." Project officials here commented that the rehabilitation and reconstruction project of three Claver School buildings financed by the Caribbean Development Bank and the Government of Belize and is being implemented by SIF with technical support from the Ministry of Environment and Solid Waste Management Authority. ASBESTOS UPDATE: ACT Spends More For Extra Abatement Requirements ----------------------------------------------------------------- John Thistleton of The Canberra Times reports Canberrans are paying hundreds of dollars more to remove asbestos from their homes than people in other jurisdictions, according to a licensed operator. Frank Williams, who has come out of retirement three times since 1982 to remove, inspect and assess asbestos in the ACT and throughout NSW, said because of the higher costs, more people were risking doing the work themselves. Mr. Williams these days does inspections and assessments for asbestos removalist firms including Gibson & Harriden of Queanbeyan, whose employees Jamie Carpenter and Garry Harriden are removing bonded asbestos from Queanbeyan South School's walkway. He said the ACT required assessment, removal, and a final inspection, whereas NSW had a more straightforward approach not requiring as many assessments. He has sent a submission to the ACT government pointing out the cost disincentive and was told the system was foolproof. "There's nothing foolproof about being ripped off," he said. On average, having a licensed person remove bonded asbestos sheets from a bathroom would cost about AU$700. Asbestos in the roof or under tiles could add several hundred dollars. "In the worse-case scenario you are looking at AU$900," Mr. Williams said. "If you get a bathroom, laundry and toilet done, you're looking at AU$1500 plus. So if they think they can get it done by doing it themselves, a lot of people will do it." Bonded asbestos was not as deadly as friable asbestos, but required a licensed operator to remove it. "You've got to look at the cost against the risks. A lot of people don't think there is a risk with bonded asbestos which is completely untrue," Mr. Williams said. ACT Master Builders Association spokesman Jerry Howard said do-it- yourself renovators inspired by celebrities on television home shows were most at risk of asbestos-related diseases. Mr. Howard served on an ACT asbestos taskforce in 2004 which had estimated 4000 tradesmen and women, from painters, electricians, air-conditioning installers to bricklayers, should be competent in removing small amounts of bonded asbestos. But only about 800 people from across the trades had undertaken specific training. Litigation specialist Theodora Ahlias said each year about 750 people in Australia were diagnosed with mesothelioma, a terminal asbestos cancer, which made it a rare disease. "I am seeing about 20 to 25 people diagnosed in the ACT, so for a small place with a small population it is quite a prevalent condition," Ms. Ahlias, a principal of Maurice Blackburn, said. The disease has a latency period of between 25 to 50 years. Ms. Ahlias is now seeing a third wave of victims including children exposed from when their mothers and fathers were renovating homes, many being government homes built in the 1960s and 1970s. Most homes in Canberra have asbestos. If they were built before 1985 it is even more likely they will have asbestos, according to Work Safe ACT. ASBESTOS UPDATE: Benian Australia and Brian Bentley Face Penalty ---------------------------------------------------------------- ABC News reports that the Environment Protection Authority has fined two companies in Victoria's Wimmera for dumping industrial waste. Benian Australia and Brian Bentley Transport in Warracknabeal were both caught dumping construction debris, household waste, green waste and tires. The EPA's Tim Eaton says the illegal waste contained asbestos but has now been cleaned up. "We've since received . . . [reports] that the asbestos and everything else went to appropriate facilities, so that's been cleaned up to some costs to the companies," he said. "We've issued penalty infringement notices to the tune of AU$6,000 in each case, which we hope sends the message that not only will you have to clean up the waste but you'll pay a penalty for not doing it properly in the first place." ASBESTOS UPDATE: Hepa Filter Containing Toxic Dust Burglarized -------------------------------------------------------------- The Daily Post reports that a filter which collects particles of asbestos from the air has been stolen. The 'Hepa Filter' was taken from a garage in Bryn Hafod in Wrexham. It is described as being approximately 2ft to 3ft in size, yellow in color and has the numbers 5042 clearly marked on the top. The filter has been confirmed as containing hazardous asbestos fibers and if tampered with will contaminate the local environment which includes any person in the close vicinity. It is believed it could have been stolen on May 17. A North Wales Fire and Rescue Service spokeswoman on May 20 urged members of the public to beware and not to open it. She said: "If the unit is seen people are requested to inform the police immediately on 101 and not to tamper or open it. "If individuals do come into close contact with the unit and it is opened they are advised to seek immediate medical help." ASBESTOS UPDATE: Tax Dispute Win Pulls James Hardie From The Red ---------------------------------------------------------------- Building products maker James Hardie has returned to profit for the full year due to a win in a long-running tax dispute and increased revenue from its operations in the United States and Europe. The company says it made AU$615 million in the financial year ending March 31, including asbestos liabilities, ASIC expenses and tax adjustments. It posted a loss of AU$353 million in the preceding financial year. In February, James Hardie won a long-running battle against the Australian Taxation Office that it says boosted revenue by around AU$400 million. Chief financial officer Russell Chenu says the profit turnaround is unprecedented. "The ATO was very prompt in paying the cash to us after the High Court decision and that's left us in a very strong cash position," Mr. Chenu said. Nevertheless, chief executive Louis Gries said it had been another demanding financial year for the company. "The favorable outcome from protracted tax litigation in Australia late in the financial year resulted in the receipt of a AU$396 million cash refund during the fourth quarter," Mr. Gries said. "The recognition of the related accounting adjustments in our fourth-quarter and full-year results draws to an end the material financial effects of a number of legacy issues we've managed in the past few years." Mr. Gries says the Australian housing construction market is expected to remain soft but the company is still performing well in this business. "Obviously the Australian market is pretty soft, but I think like the US our guys are pretty well positioned to perform well in the softer market -- maybe not return as strongly as they did last year, but certainly not drop off anywhere near the rate the market's expected to drop off," he said. The company also announced plans to buy back 5% of its shares. "If we're right about how this business is going to run we're going to have excess cash," Mr. Gries said. "We're not going to do a major acquisition so we're going to give it back to shareholders." Shareholders will receive a final dividend of 38 cents per share. ASBESTOS UPDATE: Imperial Tobacco Can't Appeal Interlocutory Order ------------------------------------------------------------------ Imperial Tobacco Canada Limited lost on a technicality in its appeal from a bankruptcy court order that barred it from filing an out-of-time proof of claim regarding its potential future demand for contribution and indemnification in the Chapter 11 cases of The Flintkote Company and Flintkote Mines Limited. Delaware District Judge Leonard P. Stark said the Bankruptcy Court's order was not yet final and an interlocutory review of the Order is not warranted. Judge Stark said ITCAN fails to present exceptional circumstances justifying the need for immediate or piecemeal review. He said ITCAN will have an opportunity to show that the Bankruptcy Court was in error should it choose to appeal a final judgment of that court. ITCAN took an appeal from portions of Bankruptcy Judge Judith K. Fitzgerald's order dated Oct. 25, 2010, granting in part and denying in part ITCAN's Amended Motion for Leave to File Out-of- Time Proof of Claim. The Bankruptcy Court had permitted ITCAN to file environmental claims but not its alleged alter ego contribution and indemnity claim against Flintkote. Saying the Bankruptcy Court erred in its ruling with respect to its potential future demand for contribution and indemnification, ITCAN explained that, under the Third Circuit's previous Frenville decision -- Avellino & Bienes v. M Frenville Co. (In re: M. Frenville Co.), 744 F.2d 332 (3d Cir. 1984), and its "accrual test" -- ITCAN -- an entity lacking any indemnity agreement with the Debtors -- held no "claim" for alter ego contribution and indemnity cognizable under 11 U.S.C. Section 101(5) that could be filed. According to ITCAN, under applicable state law, it would simply have no claim or right to payment for contribution and indemnity until such claim accrued under state law, that is, until ITCAN suffered some loss or damage by the payment of the underlying claim. According to ITCAN, it was not until after the Third Circuit's issuance of its decision on June 2, 2010, in Jeld-Wen, Inc. v. Van Brunt (In re Grossman's Inc.) 607 F.3d 114 (3d Cir. 2010), that ITCAN held a "claim" for bankruptcy purposes; prior to that decision, ITCAN "held only a 'demand' for potential future payment in the event it were ever determined to be Flintkote's alter ego." ITCAN said "Grossman's did not merely address the allowability of claims, but fundamentally redefined what constitutes a 'claim' under the Bankruptcy Code" by its determination, "contrary to conclusions reached in earlier decisions, [that] a party holds a 'claim' within the meaning of section 101(5) if it holds a contingent cause of action, even if no payment obligation currently exists." Thus, "in broadening the definition of 'claim' previously defined under Frenville, Grossman's effected a substantial change in law that, on its face, gave rise to ITCAN's right to file an out-of-time proof of claim." Because the Bankruptcy Court, however, "fundamentally misunderstood" the en bane decision, ITCAN argued the Bankruptcy Court erred and abused its discretion by denying ITCAN's subsequent request for leave to file an out-of-time proof of claim regarding its potential future demand for contribution and indemnification, in the event it is ever determined to be Flintkote's alter ego. The proponents to the bankruptcy-exit plan in the Debtors' cases -- The Flintkote Company, Flintkote Mines Limited, the Official Committee of Asbestos Personal Injury Claimants, and James J. McMonagle, in his capacity as the Future Claimants Representative -- objected, arguing that the Bankruptcy Court committed no error or abuse of discretion and, further, that ITCAN's appeal must be dismissed for lack of jurisdiction. The Plan Proponents said ITCAN has improperly appealed from an interlocutory order without seeking leave to do so under 28 U.S.C. Sec. 158(a)(3). The Order is interlocutory "because it resolved only one aspect of ITCAN' s proposed proof of claim against Flintkote's estate, and only a fraction of the broader dispute between ITCAN and the Plan Proponents." Imperial Tobacco Canada Limited is represented by Stephen M. Miller, Esq., and Eric John Monzo, Esq., at Morris James LLP. The case before the District Court is IMPERIAL TOBACCO CANADA LIMITED, Movant/Appellant, v. THE FLINTKOTE COMPANY, FLINTKOTE MINES LIMITED, THE OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS, and JAMES J. McMONAGLE, in his capacity as FUTURE CLAIMANTS REPRESENTATIVE,1 Respondents/Appellees, Civ. No. 11- 00063-LPS. A copy of Judge Stark's May 21, 2012 Memorandum Order is available at http://is.gd/56oZbyfrom Leagle.com. About The Flintkote Company Headquartered in San Francisco, California, The Flintkote Company is engaged in the business of manufacturing, processing and distributing building materials. Flintkote Mines Limited is a subsidiary of Flintkote Company and is engaged in the mining of base-precious metals. The Flintkote Company filed for Chapter 11 protection (Bankr. D. Del. Case No. 04-11300) on April 30, 2004. Flintkote Mines Limited filed for Chapter 11 relief (Bankr. D. Del. Case No. 04-12440) on Aug. 25, 2004. Kevin T. Lantry, Esq., Jeffrey E. Bjork, Esq., Dennis M. Twomey, Esq., Jeremy E. Rosenthal, Esq., and Christina M. Craige, Esq., at Sidley Austin, LLP, in Los Angeles; James E. O'Neill, Esq., and Laura Davis Jones, Esq., at Pachulski Stang Ziehl & Jones LLP, in Wilmington, Del., represent the Debtors in their restructuring efforts. Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, in New York, N.Y.; Peter Van N. Lockwood, Esq., Ronald E. Reinsel, Esq., at Caplin & Drysdale, Chartered, in Washington, D.C.; and Philip E. Milch, Esq., at Campbell & Levine, LLC, in Wilmington, Del., represent the Asbestos Claimants Committee as counsel. When Flintkote Company filed for protection from its creditors, it estimated more than $100 million each in assets and debts. When Flintkote Mines Limited filed for protection from its creditors, it estimated assets of $1 million to $50 million, and debts of more than $100 million. ASBESTOS UPDATE: Housing Agency's PD Claims Not Limited to VAT -------------------------------------------------------------- At the behest of the New York City Housing Authority, Bankruptcy Judge Rosemary Gambardella clarified language in her Dec. 14, 2010 opinion that purports to limit NYCHA's claims against G-I Holdings, Inc.'s bankruptcy estate to indemnity and restitution related to abatement of non-friable asbestos-containing floor tile, VAT, and disallow claims based on other asbestos-containing materials. NYCHA filed a proof of claim on Oct. 10, 2008, for asbestos property damage to housing complexes in the amount of $500 million to pay for the abatement of asbestos-containing materials allegedly originally manufactured, mined, distributed, and sold by G-I Holdings or its predecessors in interest. On Dec. 10, 2008, the Reorganized Debtors filed an objection to the NYCHA Claim, and on Dec. 14, 2010, the Court issued its opinion granting in part and denying in part the Objection. Thereafter, discovery proceeded until conflicting interpretations of the Dec. 14, 2010 Opinion compelled NYCHA to ask the Court to correct a supposed mistake. NYCHA believes the ruling has typographical errors and should be modified to indicate that its claims have been based on several asbestos-containing products, including but not limited to VAT. G-I Holdings objected, saying the Court must have intended to limit NYCHA's claims solely to indemnity and restitution related to abatement of VAT and disallowed claims based on other asbestos- containing materials, as evidenced by the Court's 32 references to VAT in the Opinion, as compared with once apiece for the other materials. G-I Holdings said any correction would be akin to "unraveling the entire Opinion." According to Judge Gambardella, the Dec. 14, 2010 Opinion did not decide whether NYCHA had supported its claim with respect to the different types of asbestos-containing materials. There is only one instance in the Opinion where the different types of materials are distinguished. Throughout the rest of the Opinion, the Court continued to use "VAT" as a reference to the asbestos-containing materials that are the subject of the NYCHA Claim. Judge Gambardella said completely absent from the Opinion is any explanation as to either the allowance or disallowance of claims based on the abatement of certain asbestos-containing materials as distinct from others. The judge said the Dec. 14, 2010 Opinion explicitly held that Debtors' Motion to Disallow was premature as to restitution and indemnity claims without further development of the factual record and that NYCHA would be allowed a future opportunity to present proofs in support. To limit the subject asbestos-containing materials without some explanation or without allowing NYCHA that opportunity would create a reading of the Opinion in which it contradicted itself. The Court did not intend to limit the subject of the NYCHA Claim to VAT tiles to the exclusion of other asbestos-containing materials because to do so at this point would be premature. The judge said NYCHA will have an opportunity to present further proofs related to each type of asbestos-containing material included in its Proof of Claim and Supplemental Submission with respect to the issues of fact identified in the Dec. 14, 2010 Opinion. To the extent NYCHA asks the Court to clarify that its claims include all the product types specified in its claim and supplemental submission, the Motion to Correct Mistake the Dec. 14, 2010 Opinion is granted, Judge Gambardella said. A copy of the Court's May 17, 2012 Opinion is available at http://is.gd/fR6Us1from Leagle.com. About G-I Holdings Based in Wayne, New Jersey, G-I Holdings, Inc., is a holding company that indirectly owns Building Materials Corporation of America, a manufacturer of premium residential and commercial roofing products. The Company filed for bankruptcy after already spending $1.5 billion paying asbestos claims from the 1967 acquisition of Ruberoid Co. G-I Holdings, Inc., fka GAF Corporation, filed a chapter 11 petition (Bankr. D. N.J. Case No. 01-30135) on Jan. 5, 2001, and continued to operate its business as a debtor-in-possession pursuant to Sections 1107(a) and 1108 of the Bankruptcy Code. ACI, Inc., a subsidiary of G-I Holdings, filed a voluntary chapter 11 petition (Bankr. D. N.J. Case No. 01-38790) on Aug. 3, 2001. On Oct. 10, 2001, the Bankruptcy Court entered an Order directing the joint administration of the G-I Holdings and ACI bankruptcy cases. Dennis J. O'Grady, Esq., and Mark E. Hall, Esq., at Riker, Danzig, Scherer, Hyland & Perretti, LLP, serve as co-counsel to the Reorganized Debtors. Andrew J. Rossman, Esq., and Jacob J. Waldman, Esq., at Quinn Emanuel, Urquhart & Sullivan, LLP, serve as special counsel to Reorganized Debtors. An Official Committee of Unsecured Creditors was appointed on Jan. 18, 2001, by the U.S. Trustee to represent those individuals who allegedly suffered injuries related to asbestos exposure from products manufactured by the predecessors of G-I Holdings. Lowenstein Sandler PC represents the Unsecured Creditors Committee. On Oct. 10, 2001, the Bankruptcy Court appointed C. Judson Hamlin as the Legal Representative, a fiduciary to represent the interests of persons who hold present and future asbestos-related claims against G-I. Keating, Muething & Klekamp, P.L.L., is the principal counsel to the Legal Representative of Present and Future Asbestos-Related Demands. G-I Holdings is the successor-in-interest to GAF Corporation, an entity named in approximately 500,000 asbestos-related lawsuits. The Committee submitted that, as successor-in-interest to GAF, G-I Holdings remained liable for roughly 150,000 asbestos-related lawsuits filed, but unresolved, as of the Petition Date and for unknown numbers of asbestos-related claims that would be filed in the future. In early 1994, GAF Building Materials Corporation, an indirect subsidiary of GAF, formed a new corporation as a wholly-owned subsidiary known as Building Materials Corporation of America. Pursuant to that transaction, BMCA received substantially all of the assets of GAF's roofing products business and expressly assumed $204 million of asbestos-related liability, with G-I indemnifying BMCA against any additional such liability. BMCA, also an indirect subsidiary of G-I Holdings, is the primary operating subsidiary and principal asset of G-I Holdings. In early 2007, the Debtors, the Committee and the Legal Representative commenced mediation under the auspices of former United States District Judge Nicholas H. Politan in an effort to resolve the asbestos-related lawsuits. Subsequently, the Parties outlined the principal terms of a global settlement and endeavored to complete a final global settlement with comprehensive documentation in the form of a proposed Chapter 11 plan and its ancillary documents. To preserve the status quo, the Parties mutually agreed to request a stay of all litigation which would be covered under the final global settlement from this Court and other courts of competent jurisdiction. Although lengthy and initially unsuccessful, the negotiations continued until the parties reached a settlement culminating in an agreement in early August 2008. On Aug. 21, 2008, the Parties filed the Joint Plan of Reorganization of G-I Holdings Inc. and ACI Inc. Pursuant to Chapter 11 of the Bankruptcy Code that implemented the Global Settlement of all asbestos-related lawsuits naming G-I Holdings and any other related entities as defendant(s). The Joint Plan of Reorganization provided for the creation of an asbestos trust pursuant to Section 524(g) of the Bankruptcy Code, to which all asbestos-related lawsuits against the Debtors now and in the future would be channeled. Pursuant to the Global Settlement, the Asbestos Trust would assume the Debtors' liability for asbestos- related lawsuits, in exchange for cash on the effective date of the Joint Plan of Reorganization in an amount not to exceed $215 million, and a note in the amount of $560 million issued by the reorganized Debtors and secured by a letter of credit. The Bankruptcy Court and Chief Judge Garrett Brown of the U.S. District Court for the District of New Jersey, by Order dated Nov. 12, 2009, jointly approved the Debtors' Eighth Amended Joint Plan of Reorganization. ASBESTOS UPDATE: Carlisle Cos. Still Exposed to Pending Claims -------------------------------------------------------------- Carlisle Companies Incorporated still has pending asbestos-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012. Over the years, the Company has been named as a defendant, along with numerous other defendants, in lawsuits in various state courts in which plaintiffs have alleged injury due to exposure to asbestos-containing brakes, which Carlisle manufactured in limited amounts between the late-1940's and the mid-1980's. In addition to compensatory awards, these lawsuits may also seek punitive damages. To date, the Company has obtained dismissals or settlements of its asbestos-related lawsuits with no material effect on its financial condition, results of operations or cash flows. The Company maintains insurance coverage that applies to the Company's defense costs and payments of settlements or judgments in connection with asbestos-related lawsuits. On December 22, 2010, the Company settled a case involving alleged asbestos-related injury. The total amount of the award and related loss, inclusive of insurance recoveries, was approximately $5.8 million, which was recorded in discontinued operations in the fourth quarter of 2010, as the related alleged asbestos-containing product was manufactured by the Company's former on-highway brake business. Based on an ongoing evaluation, the Company believes that the resolution of its remaining pending asbestos claims will not have a material impact on the Company's financial condition, results of operations, or cash flows, although these matters could result in the Company being subject to monetary damages, costs or expenses, and charges against earnings in particular periods. Carlisle Companies Incorporated is a holding company for Carlisle Corporation, and its wholly owned subsidiaries. Carlisle is a diversified manufacturing company consisting of five segments, which manufacture and distribute a range of products. Its segments include Carlisle Construction Materials (CCM), Carlisle Transportation Products (CTP), Carlisle Brake & Friction (CBF) and Carlisle Interconnect Technologies (CIT). ASBESTOS UPDATE: Cytec Industries Faces 8,000 Claims at March 31 ---------------------------------------------------------------- Cytec Industries Inc., in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012, disclosed it had 8,000 pending asbestos-related claims. The Company states: "We are the subject of numerous lawsuits and claims incidental to the conduct of our or certain of our predecessors' businesses, including lawsuits and claims relating to product liability and personal injury, including asbestos, environmental, contractual, employment and intellectual property matters. "As of March 31, 2012 and December 31, 2011, the aggregate self- insured and insured contingent liability was $52.5 million and $53.7 million, respectively, and the related insurance recovery receivable for the liability as well as claims for past payments was $22.1 million at March 31, 2012 and $22.1 million at December 31, 2011. The asbestos liability included in those amounts at March 31, 2012 and December 31, 2011 was $41.9 million and $42.4 million, respectively, and the insurance receivable related to the liability as well as claims for past payments was $21.7 million at March 31, 2012 and $21.8 million at December 31, 2011. We anticipate receiving a net tax benefit for payment of those claims for which full insurance recovery is not realized. "We, like many other industrial companies, have been named as one of hundreds of defendants in a number of lawsuits filed in the U.S. by persons alleging bodily injury from asbestos. The claimants allege exposure to asbestos at facilities that we own or formerly owned, or from products that we formerly manufactured for specialized applications. Most of these cases involve numerous defendants, sometimes as many as several hundred. Historically, most of the closed asbestos claims against us have been dismissed without any indemnity payment by us; however, we can make no assurances that this pattern will continue. "Overall, we expect to recover approximately 48% of our future indemnity costs. We have completed coverage in place agreements with most of our larger insurance carriers." Cytec Industries Inc. (Cytec) is a specialty chemicals and materials company focused on developing, manufacturing and selling value-added products. Cytec has four business segments: Engineered Materials, In-Process Separation, Additive Technologies, and Coating Resins. ASBESTOS UPDATE: Crane Co. Had 57,398 Pending Claims at March 31 ---------------------------------------------------------------- Crane Co., in its April 23, 2012, Form 8-K filing with the U.S. Securities and Exchange Commission, disclosed that it had 57,398 pending asbestos-related claims at the end of March 31, 2012. The Company states: "Of the 57,398 pending claims as of March 31, 2012, approximately 19,400 claims were pending in New York, approximately 9,900 claims were pending in Texas, approximately 5,500 claims were pending in Mississippi, and approximately 5,500 claims were pending in Ohio, all jurisdictions in which legislation or judicial orders restrict the types of claims that can proceed to trial on the merits. "Substantially all of the claims the Company resolves are either dismissed or concluded through settlements. To date, the Company has paid two judgments arising from adverse jury verdicts in asbestos matters. The first payment, in the amount of $2.54 million, was made on July 14, 2008, approximately two years after the adverse verdict in the Joseph Norris matter in California, after the Company had exhausted all post-trial and appellate remedies. The second payment, in the amount of $0.02 million, was made in June 2009 after an adverse verdict in the Earl Haupt case in Los Angeles, California on April 21, 2009. "The Company has tried several cases resulting in defense verdicts by the jury or directed verdicts for the defense by the court, one of which, the Patrick O'Neil claim in Los Angeles, was reversed on appeal. In an opinion dated January 12, 2012, the California Supreme Court reversed the decision of the Court of Appeal and instructed the trial court to enter a judgment of nonsuit in favor of the defendants. "On March 14, 2008, the Company received an adverse verdict in the James Baccus claim in Philadelphia, Pennsylvania, with compensatory damages of $2.45 million and additional damages of $11.9 million. The Company's post-trial motions were denied by order dated January 5, 2009. The case was concluded by settlement in the fourth quarter of 2010 during the pendency of the Company's appeal to the Superior Court of Pennsylvania. "On May 16, 2008, the Company received an adverse verdict in the Chief Brewer claim in Los Angeles, California. The amount of the judgment entered was $0.68 million plus interest and costs. The Company is pursuing an appeal in this matter. "On February 2, 2009, the Company received an adverse verdict in the Dennis Woodard claim in Los Angeles, California. The jury found that the Company was responsible for 0.5% of plaintiffs' damages of $16.93 million; however, based on California court rules regarding allocation of damages, judgment was entered against the Company in the amount of $1.65 million, plus costs. Following entry of judgment, the Company filed a motion with the trial court requesting judgment in the Company's favor notwithstanding the jury's verdict, and on June 30, 2009, the court advised that the Company's motion was granted and judgment was entered in favor of the Company. The trial court's ruling was affirmed on appeal by order dated August 25, 2011. The plaintiffs appealed that ruling to the Supreme Court of California, which dismissed the appeal on February 29, 2012; the matter is now finally determined in the Company's favor. "On March 23, 2010, a Philadelphia County, Pennsylvania, state court jury found the Company responsible for a 1/11th share of a $14.5 million verdict in the James Nelson claim, and for a 1/20th share of a $3.5 million verdict in the Larry Bell claim. On February 23, 2011, the court entered judgment on the verdicts in the amount of $0.2 million against the Company, only, in Bell, and in the amount of $4.0 million, jointly, against the Company and two other defendants in Nelson, with additional interest in the amount of $0.01 million being assessed against the Company, only, in Nelson. All defendants, including the Company, and the plaintiffs took timely appeals of certain aspects of those judgments. The Nelson appeal is pending. The Company resolved the Bell appeal by settlement, which is reflected in the settled claims for 2012. "On August 17, 2011, a New York City state court jury found the Company responsible for a 99% share of a $32 million verdict on the Ronald Dummitt claim. The Company has filed post-trial motions seeking to overturn the verdict, to grant a new trial, or to reduce the damages, which the Company argues are excessive under New York appellate case law governing awards for non-economic losses. The Court held oral argument on these motions on October 18, 2011, and a written decision is expected to be issued. The Company anticipates that it will likely appeal any judgment that may be entered on the verdict. "On March 9, 2012, a Philadelphia County, Pennsylvania, state court jury found the Company responsible for a 1/8th share of a $123,000 verdict in the Frank Paasch claim. The Company and plaintiffs have filed post-trial motions. The Company anticipates that it will likely appeal any judgment that may be entered on the verdict. "Such judgment amounts are not included in the Company's incurred costs until all available appeals are exhausted and the final payment amount is determined. "The gross settlement and defense costs incurred (before insurance recoveries and tax effects) for the Company for the three-month periods ended March 31, 2012 and 2011 totaled $23.6 million and $27.6 million, respectively. In contrast to the recognition of settlement and defense costs, which reflect the current level of activity in the tort system, cash payments and receipts generally lag the tort system activity by several months or more, and may show some fluctuation from quarter to quarter. Cash payments of settlement amounts are not made until all releases and other required documentation are received by the Company, and reimbursements of both settlement amounts and defense costs by insurers may be uneven due to insurer payment practices, transitions from one insurance layer to the next excess layer and the payment terms of certain reimbursement agreements. The Company's total pre-tax payments for settlement and defense costs, net of funds received from insurers, for the three-month periods ended March 31, 2012 and 2011 totaled a $18.2 million net payment and $12.7 million net payment, respectively. "Management has made its best estimate of the costs through 2021 based on the analysis by HR&A completed in January 2012. As of March 31, 2012, the Company's actual experience during the updated reference period for mesothelioma claims filed and dismissed generally approximated the assumptions in the Company's liability estimate. In addition to this claims experience, the Company considered additional quantitative and qualitative factors such as the nature of the aging of pending claims, significant appellate rulings and legislative developments, and their respective effects on expected future settlement values. Based on this evaluation, the Company determined that no change in the estimate was warranted for the period ended March 31, 2012. A liability of $894 million was recorded as of December 31, 2011 to cover the estimated cost of asbestos claims now pending or subsequently asserted through 2021, of which approximately 80% is attributable to settlement and defense costs for future claims projected to be filed through 2021. The liability is reduced when cash payments are made in respect of settled claims and defense costs. The liability was $871 million as of March 31, 2012. It is not possible to forecast when cash payments related to the asbestos liability will be fully expended; however, it is expected such cash payments will continue for a number of years past 2021, due to the significant proportion of future claims included in the estimated asbestos liability and the lag time between the date a claim is filed and when it is resolved. None of these estimated costs have been discounted to present value due to the inability to reliably forecast the timing of payments. The current portion of the total estimated liability at March 31, 2012 was $101 million and represents the Company's best estimate of total asbestos costs expected to be paid during the twelve-month period. Such amount is based upon the HR&A model together with the Company's prior year payment experience for both settlement and defense costs." Crane Co. manufactures and sells engineered industrial products in the United States and internationally. The company operates in five segments: Aerospace & Electronics, Engineered Materials, Merchandising Systems, Fluid Handling, and Controls. ASBESTOS UPDATE: Mine Safety Remains Defendant in 2,418 Suits ------------------------------------------------------------- Mine Safety Appliances Company in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012, disclosed it remains a defendant in 2,418 lawsuits in which plaintiffs allege to have contracted certain cumulative trauma diseases related to exposure to silica, asbestos, and/or coal dust. The Company states: "We categorize the product liability losses that we experience into two main categories, single incident and cumulative trauma. Single incident product liability claims are discrete incidents that are typically known to us when they occur and involve observable injuries and, therefore, more quantifiable damages. Therefore, we maintain a reserve for single incident product liability claims based on expected settlement costs for pending claims and an estimate of costs for unreported claims derived from experience, sales volumes and other relevant information. Our reserve for single incident product liability claims was $4.7 million at both March 31, 2012 and December 31, 2011. Single incident product liability expense during the three months ended March 31, 2012 and 2011 was $0.3 million and $0.4 million, respectively. We evaluate our single incident product liability exposures on an ongoing basis and make adjustments to the reserve as new information becomes available. "Cumulative trauma product liability claims involve exposures to harmful substances (e.g., silica, asbestos and coal dust) that occurred many years ago and may have developed over long periods of time into diseases such as silicosis, asbestosis or coal worker's pneumoconiosis. We are presently named as a defendant in 2,418 lawsuits in which plaintiffs allege to have contracted certain cumulative trauma diseases related to exposure to silica, asbestos, and/or coal dust. These lawsuits mainly involve respiratory protection products allegedly manufactured and sold by us. We are unable to estimate total damages sought in these lawsuits as they generally do not specify the injuries alleged or the amount of damages sought, and potentially involve multiple defendants." Mine Safety Appliances Company engages in the development, manufacture, and supply of products that protect people's health and safety in the fire service, homeland security, oil and gas, construction, and other industries, as well as military worldwide. Its safety products integrate a combination of electronics, mechanical systems, and materials to protect users against hazardous or life threatening situations. ASBESTOS UPDATE: Dana Holding Had 26,000 Claims at March 31 ----------------------------------------------------------- Dana Holding Corporation in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012, disclosed it had approximately 26,000 active pending asbestos personal injury liability claims at March 31, 2012 and at December 31, 2011. The Company states: "In addition, approximately 1,000 mostly inactive claims have been settled and are awaiting final documentation and dismissal, with or without payment. We have accrued $85 million for indemnity and defense costs for settled, pending and future claims at March 31, 2012, compared to $89 million at December 31, 2011. We use a fifteen-year time horizon for our estimate of this liability. "At March 31, 2012, we had recorded $52 million as an asset for probable recovery from our insurers for the pending and projected asbestos personal injury liability claims, compared to $53 million recorded at December 31, 2011. The recorded asset represents our assessment of the capacity of our current insurance agreements to provide for the payment of anticipated defense and indemnity costs for pending claims and projected future demands. The recognition of these recoveries is based on our assessment of our right to recover under the respective contracts and on the financial strength of the insurers. We have coverage agreements in place with our insurers confirming substantially all of the related coverage and payments are being received on a timely basis. The financial strength of these insurers is reviewed at least annually with the assistance of a third party. The recorded asset does not represent the limits of our insurance coverage, but rather the amount we would expect to recover if we paid the accrued indemnity and defense costs. Dana Holding Corporation (Dana) is headquartered in Maumee, Ohio and was incorporated in Delaware in 2007. It is a supplier of driveline products (axles, driveshafts and transmissions), power technologies (sealing and thermal management products) and genuine service parts for vehicle manufacturers. Its customer base includes virtually every major vehicle manufacturer in the global light vehicle, medium/heavy vehicle and off-highway markets. ASBESTOS UPDATE: U.S. Steel Had 715 Active Cases at March 31 ------------------------------------------------------------ United States Steel Corporation in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012, disclosed that it was a defendant in approximately 715 active cases involving approximately 3,255 plaintiffs asserting asbestos-related claims. The Company states: "Many of these cases involve multiple defendants (typically from fifty to more than one hundred). About 2,570, or approximately 79%, of these plaintiff claims are currently pending in jurisdictions which permit filings with massive numbers of plaintiffs. Based upon U.S. Steel's experience in such cases, it believes that the actual number of plaintiffs who ultimately assert claims against U.S. Steel will likely be a small fraction of the total number of plaintiffs. During the three months ended March 31, 2012, U.S. Steel paid approximately $2 million in settlements. These settlements and other dispositions resolved approximately 40 claims. New case filings in the first three months of 2012 added approximately 60 claims. At December 31, 2011, U.S. Steel was a defendant in approximately 695 active cases involving approximately 3,235 plaintiffs. During 2011, U.S. Steel paid approximately $8 million in settlements. These settlements and other dispositions resolved approximately 130 claims. New case filings in the year ended December 31, 2011 added approximately 275 claims. Most claims filed in 2012 and 2011 involved individual or small groups of claimants as many jurisdictions no longer permit the filing of mass complaints. "Historically, these claims against U.S. Steel fall into three major groups: (1) claims made by persons who allegedly were exposed to asbestos at U.S. Steel facilities (referred to as "premises claims"); (2) claims made by industrial workers allegedly exposed to products manufactured by U. S. Steel; and (3) claims made under certain federal and general maritime laws by employees of former operations of U. S. Steel. In general, the only insurance available to U.S. Steel with respect to asbestos claims is excess casualty insurance, which has multi-million dollar retentions. To date, U.S. Steel has received minimal payments under these policies relating to asbestos claims. These asbestos cases allege a variety of respiratory and other diseases based on alleged exposure to asbestos. U.S. Steel is currently a defendant in cases in which a total of approximately 250 plaintiffs allege that they are suffering from mesothelioma. The potential for damages against defendants may be greater in cases in which the plaintiffs can prove mesothelioma. "In many cases in which claims have been asserted against U. S. Steel, the plaintiffs have been unable to establish any causal relationship to U.S. Steel or its products or premises; however, with the decline in mass plaintiff cases, the incidence of claimants actually alleging a claim against U.S. Steel is increasing. In addition, in many asbestos cases, the claimants have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all; that any injuries that they have incurred did in fact result from alleged exposure to asbestos; or that such alleged exposure was in any way related to U.S. Steel or its products or premises. "The amount U.S. Steel has accrued for pending asbestos claims is not material to U.S. Steel's financial position. U.S. Steel does not accrue for unasserted asbestos claims because it is not possible to determine whether any loss is probable with respect to such claims or even to estimate the amount or range of any possible losses. The vast majority of pending claims against U.S. Steel allege so-called "premises" liability-based alleged exposure on U.S. Steel's current or former premises. These claims are made by an indeterminable number of people such as truck drivers, railroad workers, salespersons, contractors and their employees, government inspectors, customers, visitors and even trespassers. In most cases the claimant also was exposed to asbestos in non- U.S. Steel settings; the relative periods of exposure between U.S. Steel and non-U.S. Steel settings vary with each claimant; and the strength or weakness of the causal link between U.S. Steel exposure and any injury vary widely as do the nature and severity of the injury claimed." United States Steel Corporation produces and sells steel mill products, including flat-rolled and tubular products, in North America and Central Europe. Operations in North America also include transportation services (railroad and barge operations) and real estate operations. ASBESTOS UPDATE: Chicago Bridge Had 1,300 Claims at March 31 ------------------------------------------------------------ Chicago Bridge & Iron Company N.V. in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012, disclosed it had 1,300 pending asbestos-related claims. The Company states: "We are a defendant in lawsuits wherein plaintiffs allege exposure to asbestos due to work we may have performed at various locations. We have never been a manufacturer, distributor or supplier of asbestos products. Over the past several decades and through March 31, 2012, we have been named a defendant in lawsuits alleging exposure to asbestos involving approximately 5,100 plaintiffs and, of those claims, approximately 1,300 claims were pending and 3,800 have been closed through dismissals or settlements. Over the past several decades and through March 31, 2012, the claims alleging exposure to asbestos that have been resolved have been dismissed or settled for an average settlement amount of approximately one thousand dollars per claim. We review each case on its own merits and make accruals based upon the probability of loss and our estimates of the amount of liability and related expenses, if any. We do not believe that any unresolved asserted claims will have a material adverse effect on our future results of operations, financial position or cash flow, and, at March 31, 2012, we had approximately $1.8 million accrued for liability and related expenses. With respect to unasserted asbestos claims, we cannot identify a population of potential claimants with sufficient certainty to determine the probability of a loss and to make a reasonable estimate of liability, if any. While we continue to pursue recovery for recognized and unrecognized contingent losses through insurance, indemnification arrangements or other sources, we are unable to quantify the amount, if any, that we may expect to recover because of the variability in coverage amounts, limitations and deductibles, or the viability of carriers, with respect to our insurance policies for the years in question." Chicago Bridge and Iron Company NV (CB&I) is an integrated engineering, procurement and construction (EPC) service provides and process technology licensor, delivering solutions to customers primarily in the energy and natural resource industries. CB&I provides conceptual design, technology, engineering, procurement, fabrication, construction and commissioning services. ASBESTOS UPDATE: "Parsons" Suit Remains Stayed ---------------------------------------------- In Parsons v. A C & S, Inc., a case filed in February 1998 in Circuit Court, Ohio County, West Virginia, the plaintiff sued asbestos manufacturers, U.S. cigarette manufacturers, including R. J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc., and parent companies of U.S. cigarette manufacturers, including RJR, seeking to recover $1 million in compensatory and punitive damages individually and an unspecified amount for the class in both compensatory and punitive damages. The class was brought on behalf of persons who allegedly have personal injury claims arising from their exposure to respirable asbestos fibers and cigarette smoke. The plaintiffs allege that Mrs. Parsons' use of tobacco products and exposure to asbestos products caused her to develop lung cancer and to become addicted to tobacco. In December 2000, three defendants, Nitral Liquidators, Inc., Desseaux Corporation of North American and Armstrong World Industries, filed bankruptcy petitions in the U.S. Bankruptcy Court for the District of Delaware, In re Armstrong World Industries, Inc. Pursuant to section 362(a) of the Bankruptcy Code, Parsons is automatically stayed with respect to all defendants. No updates were reported in Reynolds American Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012. Reynolds American Inc., through its subsidiaries, manufactures and sells cigarette and other tobacco products in the United States. ASBESTOS UPDATE: Ingersoll-Rand Had $917MM ARO at March 31 ---------------------------------------------------------- Ingersoll-Rand Plc in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012, reported total asbestos-related obligations of $917.6 million. Certain wholly-owned subsidiaries of the Company are named as defendants in asbestos-related lawsuits in state and federal courts. In virtually all of the suits, a large number of other companies have also been named as defendants. The vast majority of those claims have been filed against either Ingersoll-Rand Company (IR-New Jersey) or Trane Inc. (Trane) and generally allege injury caused by exposure to asbestos contained in certain historical products sold by IR-New Jersey or Trane, primarily pumps, boilers and railroad brake shoes. Neither IR-New Jersey nor Trane was a producer or manufacturer of asbestos, however, some formerly manufactured products utilized asbestos-containing components such as gaskets and packings purchased from third-party suppliers. The Company engages an outside expert to assist in calculating an estimate of the Company's total liability for pending and unasserted future asbestos-related claims and annually performs a detailed analysis with the assistance of an outside expert to update its estimated asbestos-related assets and liabilities. At March 31, 2012 and December 31, 2011, over 90% of the open claims against the Company are non-malignancy claims, many of which have been placed on inactive or deferral dockets and the vast majority of which have little or no settlement value against the Company, particularly in light of recent changes in the legal and judicial treatment of such claims. At March 31, 2012, the Company reported total asbestos-related liabilities of $917.6 million and total asset for probable asbestos-related insurance recoveries of $322.8 million. The Company's asbestos insurance receivable related to Ingersoll-Rand Company and Trane Inc. was $126.0 million and $196.8 million at March 31, 2012, and $126.9 million and $195.5 million, at December 31, 2011, respectively. The Company records certain income and expenses associated with its asbestos liabilities and corresponding insurance recoveries within discontinued operations, as they relate to previously divested businesses, primarily Ingersoll-Dresser Pump, which was sold in 2000. Income and expenses associated with Trane's asbestos liabilities and corresponding insurance recoveries are recorded within continuing operations. Trane has now settled claims regarding asbestos coverage with most of its insurers. The settlements collectively account for approximately 95% of its recorded asbestos-related insurance receivable as of March 31, 2012. Most of Trane's settlement agreements constitute "coverage-in-place" arrangements, in which the insurer signatories agree to reimburse Trane for specified portions of its costs for asbestos bodily injury claims and Trane agrees to certain claims-handling protocols and grants to the insurer signatories certain releases and indemnifications. Trane remains in litigation in an action that Trane filed in November 2010 in the Circuit Court for La Crosse County, Wisconsin, relating to claims for insurance coverage for a subset of Trane's historical asbestos-related liabilities. On January 12, 2012, IR-New Jersey filed an action in the Superior Court of New Jersey, Middlesex County, seeking a declaratory judgment and other relief regarding the Company's rights to defense and indemnity for asbestos claims. The defendants are several dozen solvent insurance companies, including companies that have been paying a portion of IR-New Jersey's asbestos claim defense and indemnity costs. The action involves IR-New Jersey's unexhausted insurance policies applicable to the asbestos claims that are not subject to any settlement agreement. All but one of the defendants responded to IR-New Jersey's complaint. The responding defendants generally challenged the Company's right to recovery, and raised various coverage defenses. Ingersoll-Rand plc (IR-Ireland) is a diversified, global company that provides products, services and solutions to enhance the comfort of air in homes and buildings, transport and protect food and perishables, secure homes and commercial properties. ASBESTOS UPDATE: Coca-Cola Still Involved in Insurance Suit ----------------------------------------------------------- The Coca-Cola Company in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 30, 2012, disclosed that it remains involved in a lawsuit for asbestos-related insurance coverage. The Company states: "During the period from 1970 to 1981, our Company owned Aqua-Chem, Inc., now known as Cleaver-Brooks, Inc. ("Aqua-Chem"). During that time, the Company purchased over $400 million of insurance coverage, which also insures Aqua-Chem for some of its prior and future costs for certain product liability and other claims. A division of Aqua-Chem manufactured certain boilers that contained gaskets that Aqua-Chem purchased from outside suppliers. Several years after our Company sold this entity, Aqua-Chem received its first lawsuit relating to asbestos, a component of some of the gaskets. Aqua-Chem was first named as a defendant in asbestos lawsuits in or around 1985 and currently has approximately 40,000 active claims pending against it. In September 2002, Aqua-Chem notified our Company that it believed we were obligated for certain costs and expenses associated with its asbestos litigations. Aqua-Chem demanded that our Company reimburse it for approximately $10 million for out-of-pocket litigation-related expenses. Aqua-Chem also demanded that the Company acknowledge a continuing obligation to Aqua-Chem for any future liabilities and expenses that are excluded from coverage under the applicable insurance or for which there is no insurance. Our Company disputes Aqua-Chem's claims, and we believe we have no obligation to Aqua-Chem for any of its past, present or future liabilities, costs or expenses. Furthermore, we believe we have substantial legal and factual defenses to Aqua-Chem's claims. The parties entered into litigation in Georgia to resolve this dispute, which was stayed by agreement of the parties pending the outcome of litigation filed in Wisconsin by certain insurers of Aqua-Chem. In that case, five plaintiff insurance companies filed a declaratory judgment action against Aqua-Chem, the Company and 16 defendant insurance companies seeking a determination of the parties' rights and liabilities under policies issued by the insurers and reimbursement for amounts paid by plaintiffs in excess of their obligations." "During the course of the Wisconsin insurance coverage litigation, Aqua-Chem and the Company reached settlements with several of the insurers, including plaintiffs, who have or will pay funds into an escrow account for payment of costs arising from the asbestos claims against Aqua-Chem. On July 24, 2007, the Wisconsin trial court entered a final declaratory judgment regarding the rights and obligations of the parties under the insurance policies issued by the remaining defendant insurers, which judgment was not appealed. The judgment directs, among other things, that each insurer whose policy is triggered is jointly and severally liable for 100% of Aqua-Chem's losses up to policy limits. The court's judgment concluded the Wisconsin insurance coverage litigation. The Georgia litigation remains subject to the stay agreement. The Company and Aqua-Chem continued to negotiate with various insurers that were defendants in the Wisconsin insurance coverage litigation over those insurers' obligations to defend and indemnify Aqua-Chem for the asbestos-related claims. The Company anticipated that a final settlement with three of those insurers would be finalized in May 2011, but such insurers repudiated their settlement commitments and, as a result, Aqua-Chem and the Company filed suit against them in Wisconsin state court to enforce the coverage-in-place settlement or, in the alternative, to obtain a declaratory judgment validating Aqua-Chem and the Company's interpretation of the court's judgment in the Wisconsin insurance coverage litigation. Whether or not Aqua-Chem and the Company prevail in the coverage-in-place settlement litigation, these three insurance companies will remain subject to the court's judgment in the Wisconsin insurance coverage litigation. "The Company is unable to estimate at this time the amount or range of reasonably possible loss it may ultimately incur as a result of asbestos-related claims against Aqua-Chem. The Company believes that assuming that (a) the defense and indemnity costs for the asbestos-related claims against Aqua-Chem in the future are in the same range as during the past five years, and (b) the various insurers that cover the asbestos-related claims against Aqua-Chem remain solvent, regardless of the outcome of the coverage-in-place settlement litigation, there will likely be little defense or indemnity costs that are not covered by insurance over the next five to seven years and, therefore, it is unlikely that Aqua-Chem would seek indemnification from the Company within that period of time. In the event Aqua-Chem and the Company prevail in the coverage-in-place settlement litigation, and based on the same assumptions, the Company believes insurance coverage for substantially all defense and indemnity costs would be available for the next 10 to 12 years." The Coca-Cola Company is a beverage company. The Company owns or licenses and markets more than 500 nonalcoholic beverage brands, primarily sparkling beverages but also a variety of still beverages, such as waters, enhanced waters, juices and juice drinks, ready-to-drink teas and coffees, and energy and sports drinks. It owns and markets a range of nonalcoholic sparkling beverage brands, which includes Coca-Cola, Diet Coke, Fanta and Sprite. The Company's segments include Eurasia and Africa, Europe, Latin America, North America, Pacific, Bottling Investments and Corporate. ASBESTOS UPDATE: Goodrich Corp. Still Defendant in Suits -------------------------------------------------------- Goodrich Corporation in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2012, disclosed that it and some of its subsidiaries have been named as defendants in various actions by plaintiffs alleging damages as a result of exposure to asbestos fibers in products or at formerly owned facilities. The Company believes that pending and reasonably anticipated future actions are not likely to have a material adverse effect on the Company's financial condition, results of operations or cash flows. There can be no assurance, however, that future legislative or other developments will not have a material adverse effect on the Company's results of operations and cash flows in a given period. Goodrich Corporation is a worldwide supplier of aerospace components, systems and services to the commercial and general aviation airplane markets. Goodrich also is a supplier of systems and products to the defense and space markets. Its business is conducted globally with manufacturing, service and sales undertaken in various locations worldwide. ASBESTOS UPDATE: Owens-Illinois Still Defending Exposure Suits -------------------------------------------------------------- Owens-Illinois, Inc., in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2012, disclosed that it remains a defendant in numerous lawsuits alleging bodily injury and death as a result of exposure to asbestos dust. From 1948 to 1958, one of the Company's former business units commercially produced and sold approximately $40 million of a high-temperature, calcium-silicate based pipe and block insulation material containing asbestos. The Company exited the pipe and block insulation business in April 1958. The typical asbestos personal injury lawsuit alleges various theories of liability, including negligence, gross negligence and strict liability and seek compensatory and in some cases, punitive damages in various amounts. As of March 31, 2012, the Company has determined that it is a named defendant in asbestos lawsuits and claims involving approximately 4,700 plaintiffs and claimants. Based on an analysis of the lawsuits pending as of December 31, 2011, approximately 71% of plaintiffs either do not specify the monetary damages sought, or in the case of court filings, claim an amount sufficient to invoke the jurisdictional minimum of the trial court. Approximately 27% of plaintiffs specifically plead damages of $15 million or less, and 2% of plaintiffs specifically plead damages greater than $15 million but less than $100 million. Fewer than 1% of plaintiffs specifically plead damages $100 million or greater but less than $122 million. In addition to the pending claims, the Company has claims-handling agreements in place with many plaintiffs' counsel throughout the country. These agreements require evaluation and negotiation regarding whether particular claimants qualify under the criteria established by such agreements. The criteria for such claims include verification of a compensable illness and a reasonable probability of exposure to a product manufactured by the Company's former business unit during its manufacturing period ending in 1958. Some plaintiffs' counsel have historically withheld claims under these agreements for later presentation while focusing their attention on active litigation in the tort system. The Company believes that as of March 31, 2012 there are approximately 350 claims against other defendants which are likely to be asserted some time in the future against the Company. The Company is also a defendant in other asbestos-related lawsuits or claims involving maritime workers, medical monitoring claimants, co-defendants and property damage claimants. Since receiving its first asbestos claim, the Company as of March 31, 2012, has disposed of the asbestos claims of approximately 388,000 plaintiffs and claimants at an average indemnity payment per claim of approximately $8,200. Certain of these dispositions have included deferred amounts payable over a number of years. Deferred amounts payable totaled approximately $35 million at March 31, 2012 ($18 million at December 31, 2011) and are included in the foregoing average indemnity payment per claim. The Company believes that its ultimate asbestos-related liability (i.e., its indemnity payments or other claim disposition costs plus related legal fees) cannot reasonably be estimated. Beginning with the initial liability of $975 million established in 1993, the Company has accrued a total of approximately $4.0 billion through 2011, before insurance recoveries, for its asbestos- related liability. On March 11, 2011, the Company received a verdict in an asbestos case in which conspiracy claims had been asserted against the Company. Of the total nearly $90 million awarded by the jury against the four defendants in the case, almost $10 million in compensatory damages were assessed against all four defendants, and $40 million in punitive damages were assessed against the Company. The Company continues to deny the conspiracy allegations in this case and will vigorously challenge this verdict, if necessary, in the appellate courts, and, therefore, has made no change to its asbestos-related liability as of March 31, 2012. While the Company cannot predict the ultimate outcome of this lawsuit, the Company and other conspiracy defendants have successfully challenged jury verdicts in similar cases. The Company's reported results of operations for 2011 were materially affected by the $165 million (pretax and after tax) fourth quarter charge for asbestos-related costs and asbestos- related payments continue to be substantial. Any future additional charge would likewise materially affect the Company's results of operations for the period in which it is recorded. Also, the continued use of significant amounts of cash for asbestos-related costs has affected and may continue to affect the Company's cost of borrowing and its ability to pursue global or domestic acquisitions. However, the Company believes that its operating cash flows and other sources of liquidity will be sufficient to pay its obligations for asbestos-related costs and to fund its working capital and capital expenditure requirements on a short-term and long-term basis. Owens-Illinois, Inc., is a manufacturer of glass containers with 81 glass manufacturing plants in 21 countries. It produces glass containers for beer, ready-to-drink low alcohol refreshers, spirits, wine, food, tea, juice and pharmaceuticals. The Company also produces glass containers for soft drinks and other non- alcoholic beverages outside the United States. ASBESTOS UPDATE: Tyco International Estimates $52MM Liability ------------------------------------------------------------- Tyco International Ltd. in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 30, 2012, recorded an estimated net liability of $52 million as a liability for pending and future asbestos-related claims. The Company and certain of its subsidiaries along with numerous other companies are named as defendants in personal injury lawsuits based on alleged exposure to asbestos-containing materials. These cases typically involve product liability claims based primarily on allegations of manufacture, sale or distribution of industrial products that either contained asbestos or were attached to or used with asbestos-containing components manufactured by third-parties. Each case typically names between dozens to hundreds of corporate defendants. While the Company has observed an increase in the number of these lawsuits over the past several years, including lawsuits by plaintiffs with mesothelioma- related claims, a large percentage of these suits have not presented viable legal claims and, as a result, have been dismissed by the courts. The Company's strategy has been to mount a vigorous defense aimed at having unsubstantiated suits dismissed, and, where appropriate, settling suits before trial. Although a large percentage of litigated suits have been dismissed, the Company cannot predict the extent to which it will be successful in resolving lawsuits in the future. In addition, the Company continues to assess and evolve its strategy for resolving its asbestos claims, including pursuing other legal alternatives for certain subsidiaries with asbestos liabilities and limited assets. As part of the Company's strategy, it has also entered into a cost-sharing agreement with an entity from which it acquired a business several decades ago. Under the agreement, insurance proceeds from policies that were purchased by the seller prior to its acquisition by the Company have been made available to the Company. To the extent there is insufficient insurance for claims subject to the agreement, the parties are required to share costs, although responsibility for such excess costs gradually transitions to the Company over the next nine to ten years. In 2022, the Company will ultimately be responsible for all excess costs if available insurance policies do not fully respond. While the Company expects that the insurance policies it has gained access to under the agreement will be sufficient to cover any increased liability resulting from this arrangement, it cannot predict whether this will be the case. As of March 30, 2012, there were approximately 5,000 lawsuits pending against the Company, its subsidiaries or entities for which the Company has assumed responsibility. Each lawsuit typically includes several claims, and the Company has determined that there were approximately 6,100 claims outstanding as of March 30, 2012, which reflects the Company's current estimate of the number of viable claims made against it, its affiliates or entities for which it has assumed responsibility in connection with acquisitions or divestitures. This amount includes adjustments for claims that are not actively being prosecuted, identify incorrect defendants or are duplicative of other actions. Annually, during the Company's third quarter, the Company performs an analysis with the assistance of outside counsel and other experts to update its estimated asbestos-related assets and liabilities. In addition, on a quarterly basis, the Company re-evaluates the assumptions used to perform the annual analysis and records an expense as necessary to reflect changes in its estimated liability and related insurance asset. Due to a high degree of uncertainty regarding the pattern and length of time over which claims will be made and then settled or litigated, the Company uses multiple estimation methodologies based on varying scenarios of potential outcomes to estimate the range of loss. The Company's estimate of the liability and corresponding insurance recovery for pending and future claims and defense costs is predicated on the Company's legal strategy for resolving its asbestos claims as well as being based on claim experience over the past five years, and a projection which covers claims expected to be filed, including related defense costs, over the next seven years on an undiscounted basis. The Company has concluded that estimating the liability beyond the seven year period will not provide a reasonable estimate, as these uncertainties increase significantly as the projection period lengthens. The Company also periodically evaluates its strategy and the assumptions used in calculating the liability and corresponding insurance assets, including the five year look back and seven year look forward periods to assess whether these assumptions continue to be appropriate in light of trends and developments affecting the Company's claims experience. The Company's estimate of asbestos- related insurance recoveries represents estimated amounts due to the Company for previously paid and settled claims and the probable reimbursements relating to its estimated liability for pending and future claims. In determining the amount of insurance recoverable, the Company considers a number of factors, including available insurance, allocation methodologies, solvency and creditworthiness of the insurers. The Company believes that its asbestos-related liabilities and insurance-related assets as of March 30, 2012 are appropriate. As of March 30, 2012, the Company's estimated net liability of $52 million was recorded within the Company's Consolidated Balance Sheet as a liability for pending and future claims and related defense costs of $275 million, and separately as an asset for insurance recoveries of $223 million. Similarly, as of September 30, 2011, the Company's estimated net liability of $82 million was recorded within the Company's Consolidated Balance Sheet as a liability for pending and future claims and related defense costs of $306 million, and separately as an asset for insurance recoveries of $224 million. The amounts recorded by the Company for asbestos-related liabilities and insurance-related assets are based on the Company's strategies for resolving its asbestos claims and currently available information as well as estimates and assumptions. Key variables and assumptions include the number and type of new claims that are filed each year, the average cost of resolution of claims, the resolution of coverage issues with insurance carriers, amount of insurance and the solvency risk with respect to the Company's insurance carriers. Furthermore, predictions with respect to these variables are subject to greater uncertainty in the later portion of the projection period. Other factors that may affect the Company's liability and cash payments for asbestos-related matters include uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, reforms of state or federal tort legislation and the applicability of insurance policies among subsidiaries. However, actual liabilities or insurance recoveries could be significantly higher or lower than those recorded if assumptions used in the Company's calculations vary significantly from actual results. Tyco International Ltd is a Switzerland-based holding company of Tyco Group. The Tyco Group (the Group) is a diversifies, global provider of diversified products ranging from electronic security and alarm monitoring to fire-fighting equipment and breathing apparatus, water purification and flow control solutions. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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