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C L A S S A C T I O N R E P O R T E R
Friday, October 5, 2012, Vol. 14, No. 198
Headlines
ALPHA NATURAL: Faces "Niitsoo" Class Suit in West Virginia
ALPHA NATURAL: Award of Attorneys' Fees Motion Pending in Va.
ALPHA NATURAL: Faces Class Action Suit Over UBB Explosion
ALPHA NATURAL: Defends Consolidated Securities Suit vs. Massey
ALPHA NATURAL: Stay of Suits vs. Massey Extended Until Jan. 2013
AMERICAN GREETINGS: Faces Class Action Over Share Acquisition
CAPITAL ONE: Sued Over Illegal Debt Collection Practices
CARNIVAL CORP: Judge Approves Motion to Dismiss Class Action
COMCAST CORP: Supreme Court to Hear Antitrust Class Action
COUNTRYWIDE HOME: Must Face Mortgage Fee Class Action
COVENTRY HEALTH: Faces Class Action Over Proposed Aetna Merger
COX COMMS: Sued for Forcing Subscribers to Rent Set-Top Boxes
DIRECT TV: Faces Class Action Over Debt Collection Practices
ENTERPRISE HOLDINGS: Sued For Inflated Rental Car Penalties
ERNST & YOUNG: Broadcom Stock Backdating Class Action Settled
FITNESS ANYWHERE: Recalls 40,000 Suspension Trainer Devices
FREEDOM COMMUNICATIONS: Carriers to Get Legal Fee Reimbursement
HAIER AMERICA: Recalls 5T 42-inch LED-TVs Due to Risk of Injury
HANCEVILLE, AL: Plaintiffs Dismiss Class Action Over Alcohol Taxes
IMMACULATA ELEMENTARY: Ex-Students File Class Action Over Abuses
INFOCISION MANAGEMENT: Sued for Misrepresenting Donations
KUBOTA MANUFACTURING: Recalls 970 Off-Road Utility Vehicle Units
LATE JULY: Recalls Mini Peanut Butter Sandwich Crackers
MBIA INC: Dec. 10 Class Action Settlement Fairness Hearing Set
MMI RETIREMENT: Judge to Hear Motion to Dismiss Class Action
NELNET INC: Awaits Order on Bid to Dismiss "Yaakov" Suit v. Unit
PETALUMA EGG: Faces Class Action Over False "Cage-Free" Labeling
PHOENIX COS: "Curran" Parties Engaged in Pre-Trial Discovery
PORTFOLIO RECOVERY: Consolidated TCPA Suit Pending in Calif.
RHODE ISLAND: Medical Marijuana Patients File Class Action
SOUTHERN STAR: Price Litigation I Remains Pending in Kansas
SOUTHERN STAR: Price Litigation II Remains Pending in Kansas
UBIQUITI NETWORKS: Alfred G. Yates Files Class Action in Calif.
UBS AG: Judge Dismisses Fraud Class Action
UNITED STATES: Judge Certifies Vietnam Veterans' Class Action
UNITED STATES: Seeks Dismissal of Wiretap Class Action
WHOLE FOODS: Recalls Mislabeled Soup; Undeclared Allergen Cited
WHOLE FOODS: Recalls Ricotta Salata Due Possible Health Risk
WILLIS GROUP: Appeal in Contingent Compensation Suit Pending
WILLIS GROUP: Continues to Defend Stanford-Related Class Suits
XAN CONFECTIONS: Recalls Peanut Butter Chocolate Products
Asbestos Litigation
ASBESTOS UPDATE: Ohio Ct. Denies Writ of Mandamus Action v. ICO
ASBESTOS UPDATE: Insurers' Doc Request v. Porter Hayden Denied
ASBESTOS UPDATE: NY Court Denies Elliot's Summary Judgment Plea
ASBESTOS UPDATE: NY Court Denies Karnak's Summary Judgment Bid
ASBESTOS UPDATE: NY Court Rejects Ford's Bid to Transfer Suit
ASBESTOS UPDATE: Mt. Greylock School Plans for Abatement Projects
ASBESTOS UPDATE: CSULB Applies "Manage In Place" on 50 Buildings
ASBESTOS UPDATE: Deposition in PAL Center Class Action Starts
ASBESTOS UPDATE: Democrat Elizabeth Warren Releases List of Cases
ASBESTOS UPDATE: SCT Case Defendants Jail Sentences Starts Nov. 16
ASBESTOS UPDATE: G.E. Company, 77 Others Face Meso Lawsuit
ASBESTOS UPDATE: EPA Bills Buyer $30K for Old Paper Mill Board Up
ASBESTOS UPDATE: NVMC Operator Cited for 16 Workplace Violations
ASBESTOS UPDATE: Quebec Still Imports Fibro In Brake Pads, Pipes
ASBESTOS UPDATE: Santa Fe's Manuel Lujan Building Up For Abatement
ASBESTOS UPDATE: Suffolk County Executive Suffers Mesothelioma
ASBESTOS UPDATE: Warren Defends Her Representation of Travelers
ASBESTOS UPDATE: Fibro Find Adds $800,000 Cost to Saginaw Project
ASBESTOS UPDATE: Three Thatcher Plant Violators Sentenced Sept. 25
ASBESTOS UPDATE: Ex-Owner of Rock-Tenn Paper Mill Site Indicted
ASBESTOS UPDATE: Danvers' Dunn Building Project On Time and Budget
ASBESTOS UPDATE: Hearing Set on Bid to Intervene in Garlock Case
ASBESTOS UPDATE: AMWU Demands Recall of 24,000 Chinese Cars
ASBESTOS UPDATE: Brown's Top Aide Crashes Warren Supporters' Meet
ASBESTOS UPDATE: Council Advises to Leave Dormant Fibro As Is
ASBESTOS UPDATE: Mesothelioma Victims Center to Help Elderlies
ASBESTOS UPDATE: Doltone House to Host 4th Signorelli Dinner
ASBESTOS UPDATE: Draft Assessment on Libby's Toxicity Levels Out
ASBESTOS UPDATE: WorksSafe Says "Back To Work" at Canberra Project
ASBESTOS UPDATE: Council Rejects "Dumpsite" Plan for Stowey Quarry
ASBESTOS UPDATE: Historical View of Admiralty Island's Asbestos
ASBESTOS UPDATE: Pharmacia Corp et al Face Asbestos Lawsuit
ASBESTOS UPDATE: EPA Pushes for Tougher Cleanup Standard in Libby
ASBESTOS UPDATE: Jury Returns 16-Vount Indictment v. SD Specialty
ASBESTOS UPDATE: Death of Two Chico State U Workers Raises Concern
ASBESTOS UPDATE: 2nd Annual "Walk to Remember" Eyes Bigger Turnout
ASBESTOS UPDATE: S&P Revises Outlook on Owens-Illinois to Stable
ASBESTOS UPDATE: Ex-Shipwright Files Claim v Ministry of Defence
ASBESTOS UPDATE: Youngstown City Hall Annex Abatement Completed
ASBESTOS UPDATE: Marijuana Beneficial in Some Mesothelioma Tumors
ASBESTOS UPDATE: Utica Mutual Cedes Liabilities to Nat'l Indemnity
ASBESTOS UPDATE: Environment Agents Nets 10 in Toxic Waste Raid
ASBESTOS UPDATE: Mesothelioma Kills 62-Year-Old Cornwall Handyman
ASBESTOS UPDATE: Tunbridge Cinema Owners Dispel Fears Over Fibro
ASBESTOS UPDATE: Maryland Court Rejects Plaintiffs Expert Opinion
ASBESTOS UPDATE: Departed Victims of Asbestos Remembered
ASBESTOS UPDATE: Nikau Hired to Demolish Christchurch Bldgs
ASBESTOS UPDATE: Paulerspury Storage With Toxic Materials Burns
*********
ALPHA NATURAL: Faces "Niitsoo" Class Suit in West Virginia
----------------------------------------------------------
Alpha Natural Resources, Inc. is facing a class action lawsuit
captioned Niitsoo v. Alpha Natural Resources, Inc., et al.,
according to the Company's August 9, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
On July 13, 2012, a purported class action brought on behalf of
former Massey Energy Company stockholders was filed in Boone
County, West Virginia Circuit Court. The complaint asserts claims
under the Securities Act of 1933, as amended, against the Company
and certain of its officers and current and former directors, and
generally asserts that the defendants made false statements about
the Company's Emerald mine in its public filings associated with
its acquisition of Massey. The plaintiff seeks, among other
relief, an award of compensatory damages in an amount to be proven
at trial.
ALPHA NATURAL: Award of Attorneys' Fees Motion Pending in Va.
-------------------------------------------------------------
In the United States District Court for the Eastern District of
Virginia, purported former stockholder of Alpha Natural Resources,
Inc.'s subsidiary, Massey Energy Company, now known as Alpha
Appalachia Holdings, Inc., Benjamin Mostaed ("Mostaed") alleges in
a lawsuit filed on February 2, 2011, and amended thereafter,
purportedly on behalf of a class of former Massey stockholders,
that Massey, Alpha and certain former Massey directors violated
Sections 14(a) of the Exchange Act and Rule 14a-9 thereunder by
filing a false and misleading preliminary proxy statement in
connection with the then-proposed Massey Acquisition; that Massey
and certain former Massey directors violated Section 20(a) of the
Exchange Act by virtue of their control over persons alleged to
have committed violations of Section 14(a) of the Exchange Act;
that certain former Massey directors violated their fiduciary
duties by causing Massey to enter into the Merger Agreement with
Alpha pursuant to an unfair process that resulted in an unfair
offer with preclusive deal protection devices that allegedly
inhibited superior proposals; and that Massey and Alpha aided and
abetted the former Massey directors' alleged breaches of fiduciary
duty. Mr. Mostaed sought an injunction preventing the
consummation of the Massey Acquisition; rescission of the Merger
Agreement; and an award of the costs and disbursements of the
action, including reasonable attorneys' and experts' fees.
On February 4, 2011, William D. Perkins ("Perkins"), another
purported former Massey stockholder, filed a lawsuit in the
Eastern District of Virginia similar to Mr. Mostaed's. On
February 17, 2011, Mr. Mostaed requested that the court
consolidate the two pending actions, along with any subsequently
filed actions challenging the proposed transaction. Defendants
did not oppose the motion. On June 3, 2011, the court granted the
motion.
On June 24, 2011, Mr. Mostaed informed the court that, aside from
a motion for an award of attorneys' fees, he did not intend to
prosecute the action further and would voluntarily dismiss his
claims.
On July 13, 2011, Messrs. Mostaed and Perkins moved for an award
of attorneys' fees, reimbursement of expenses and incentive
awards, contending that voluntary remedial measures implemented by
defendants and sought by Mr. Mostaed (i.e., additional disclosure)
had mooted Mr. Mostaed's claims. On July 26, 2011, defendants
filed their opposition and on August 4, 2011, Mr. Mostaed and
Perkins filed their reply brief. The court subsequently denied
plaintiffs' request for oral argument. The motion remains
pending.
No further updates were reported in the Company's August 9, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
ALPHA NATURAL: Faces Class Action Suit Over UBB Explosion
---------------------------------------------------------
Alpha Natural Resources, Inc. is facing a class action lawsuit
alleging fraudulent inducement into a contract in relation to
settlements of suits over an explosion at a mine owned by its
subsidiary, according to the Company's August 9, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On April 5, 2010, before the acquisition of Massey Energy Company,
now known as Alpha Appalachia Holdings, Inc., by the Company, an
explosion occurred at the Upper Big Branch ("UBB") mine, resulting
in the deaths of 29 miners. The Federal Mine Safety and Health
Administration ("MSHA"), the Office of Miner's Health, Safety, and
Training of the State of West Virginia ("State"), and the
Governor's Independent Investigation Panel ("GIIP") initiated
investigations into the cause of the UBB explosion and related
issues. Additionally, the U.S. Attorney for the Southern District
of West Virginia (the "Office") commenced a grand jury
investigation. The GIIP published its final report on May 19,
2011; MSHA released its final report on December 6, 2011; and the
State released its final report on February 23, 2012.
As of May 9, 2012, twenty of the twenty-nine families of the
deceased miners had filed wrongful death lawsuits against Massey
and certain of its subsidiaries in Boone County Circuit Court and
Wyoming County Circuit Court. In addition, as of May 9, 2012, two
seriously injured employees had filed personal injury claims
against Massey and certain of its subsidiaries in Boone County
Circuit Court seeking damages for physical injuries and/or alleged
psychiatric injuries, and thirty-nine employees had filed lawsuits
against Massey and certain of its subsidiaries in Boone County
Circuit Court and Wyoming County Circuit Court alleging emotional
distress or personal injuries due to their proximity to the
explosion. On April 19, 2012, the Company filed a motion to
transfer the Wyoming County lawsuits to Boone County.
On October 19, 2011, the Boone County Circuit Court ordered that
the cases pending before it be mediated by a panel of three
mediators. These mediations are, per order of the court, strictly
confidential. The Company has reached agreements in principle to
settle with all twenty-nine families of the deceased miners as
well as the two employees who were seriously injured. Twenty-
seven of the twenty-nine settlements that have been reached with
the families of the deceased miners have received court approval
and the remaining two settlements have yet to be approved by the
court. The settlements relating to the two serious injuries did
not require court approval.
On May 4, 2012, the Boone County Circuit Court ordered that the
remaining personal injury and emotional distress claims continue
to be mediated through July 6, 2012. Until that date, a stay was
in place for all remaining cases until further order from the
court. The stay was lifted on July 6, 2012, but mediation was
ordered to continue. On July 20, 2012, the stay was reinstated
for discovery-related activities at the request of the United
States Attorney and by agreement of the parties. This stay is
expected to remain in effect until the criminal investigation is
completed or until January 15, 2013, whichever is earlier.
On April 5, 2012, one of the families of the deceased miners filed
a class action lawsuit in Boone County Circuit Court, purportedly
on behalf of the families that settled their claims prior to the
mediation, alleging fraudulent inducement into a contract, naming
as defendants Massey, the Company and certain of its subsidiaries,
the Company's CEO and the Company's Board of Directors.
ALPHA NATURAL: Defends Consolidated Securities Suit vs. Massey
--------------------------------------------------------------
Alpha Natural Resources, Inc. continues to defend its subsidiary
against a consolidated securities lawsuit pending in West
Virginia, according to the Company's August 9, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On April 29, 2010, and May 28, 2010, two purported class actions
that were subsequently consolidated into one case were brought
against, among others, Massey Energy Company, now the Company's
subsidiary Alpha Appalachia Holdings, Inc. ("Massey" or "Alpha
Appalachia"), in the United States District Court for the Southern
District of West Virginia in connection with alleged violations of
the federal securities laws. The lead plaintiffs allege,
purportedly on behalf of a class of former Massey stockholders,
that (i) Massey and certain former Massey directors and officers
violated Section 10(b) of the Securities and Exchange Act of 1934,
as amended, (the "Exchange Act"), and Rule 10b-5 thereunder by
intentionally misleading the market about the safety of Massey's
operations and that (ii) Massey's former officers violated Section
20(a) of the Exchange Act by virtue of their control over persons
alleged to have committed violations of Section 10(b) of the
Exchange Act. The lead plaintiffs seek a determination that this
action is a proper class action; certification as class
representatives; an award of compensatory damages in an amount to
be proven at trial, including interest thereon; and an award of
reasonable costs and expenses, including counsel fees and expert
fees.
On February 16, 2011, the lead plaintiffs moved to partially lift
the statutory discovery stay imposed under the Private Securities
Litigation Reform Act of 1995 ("PSLRA"). On March 3, 2011, the
United States moved to intervene and to stay discovery until the
completion of criminal proceedings allegedly arising from the same
facts that allegedly give rise to this action. On March 30, 2012,
the court entered an order setting a July 13, 2012 deadline for
the parties to serve their initial discovery disclosures. On July
9, 2012, the Court entered an order maintaining the stay of
discovery until the earlier of either the completion of the United
States' criminal investigation of the Upper Big Branch ("UBB")
explosion or January 15, 2013.
On April 25, 2011, the defendants moved to dismiss the operative
complaint. On March 27, 2012, the court denied the defendants'
motion to dismiss. On July 16, 2012, the Company filed its answer
to the consolidated amended class action complaint.
ALPHA NATURAL: Stay of Suits vs. Massey Extended Until Jan. 2013
----------------------------------------------------------------
Alpha Natural Resources, Inc. disclosed in its August 9, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012, that the stay of the
proceedings of the lawsuits brought by former stockholders of its
subsidiary is extended until the earlier of either the completion
of the United States' criminal investigation or January 15, 2013.
On June 1, 2011, the Company completed its acquisition (the
"Massey Acquisition") of 100% of the outstanding common stock of
Massey Energy Company ("Massey"), a coal producer with operations
located primarily in Virginia, West Virginia, and Kentucky.
A number of purported former stockholders of Massey, now known as
Alpha Appalachia Holdings, Inc., have brought lawsuits
derivatively, purportedly on behalf of Massey, in West Virginia
and Delaware state courts, in connection with the April 5, 2010
explosion at the Upper Big Branch ("UBB") mine and related claims.
Certain of these former stockholders have also initiated contempt
proceedings in West Virginia state court in connection with
alleged violations of the settlement of a previous derivative
lawsuit. In addition, these and other purported former Massey
stockholders have asserted class action claims allegedly arising
out of the Company's acquisition of Massey in Delaware and West
Virginia state courts and Virginia federal court.
Delaware Chancery Court
In a case filed on April 23, 2010, in Delaware Chancery Court, In
re Massey Energy Company Derivative and Class Action Litigation
("In re Massey"), a number of purported former Massey stockholders
(the "Delaware Plaintiffs") allege, purportedly on behalf of
Massey, that certain former Massey directors and officers breached
their fiduciary duties by failing to monitor and oversee Massey's
employees, allegedly resulting in fines against Massey and the
explosion at UBB, and by wasting corporate assets by paying
allegedly excessive and inflated amounts to former Massey Chairman
and Chief Executive Officer Don L. Blankenship as part of his
retirement package. The Delaware Plaintiffs also allege, on
behalf of a purported class of former Massey stockholders, that
certain former Massey directors breached their fiduciary duties by
agreeing to the Massey Acquisition. The Delaware Plaintiffs
allege that defendants breached their fiduciary duties by failing
to secure the best price possible, by failing to secure any
downside protection for the acquisition consideration, and by
purportedly eliminating the possibility of a superior proposal by
agreeing to a "no shop" provision and a termination fee. In
addition, the Delaware Plaintiffs allege that defendants agreed to
the Massey Acquisition to eliminate the liability that defendants
faced on the Delaware Plaintiffs' derivative claims. Finally, the
Delaware Plaintiffs allege that defendants failed to fully
disclose all material information necessary for Massey
stockholders to cast an informed vote on the Massey Acquisition.
The Delaware Plaintiffs also name the Company and Mountain Merger
Sub, Inc. ("Merger Sub"), the Company's wholly-owned subsidiary
created for purposes of effecting the Massey Acquisition, which,
at the effective time of the Massey Acquisition, was merged with
and into Massey, as defendants. The Delaware Plaintiffs allege
that the Company and Merger Sub aided and abetted the former
Massey directors' alleged breaches of fiduciary duty and agreed to
orchestrate the Massey Acquisition for the purpose of eliminating
the former Massey directors' potential liability on the derivative
claims. Two additional putative class actions were brought
against Massey, certain former Massey directors and officers, the
Company and Merger Sub in the Delaware Court of Chancery following
the announcement of the Massey Acquisition, which were
consolidated for all purposes with In re Massey on February 9,
2011, and February 24, 2011, respectively.
The Delaware Plaintiffs seek an award against each defendant for
restitution and/or compensatory damages, plus pre-judgment
interest; an order establishing a litigation trust to preserve the
derivative claims asserted in the complaint; and an award of
costs, disbursements and reasonable allowances for fees incurred
in this action. The Delaware Plaintiffs also sought to enjoin
consummation of the Massey Acquisition. The court denied their
motion for a preliminary injunction on May 31, 2011.
On June 10, 2011, Massey moved to dismiss the Delaware Plaintiffs'
derivative claims on the ground that the Delaware Plaintiffs, as
former Massey stockholders, lacked the legal right to pursue those
claims, and the Company and Alpha Appalachia Merger Sub moved to
dismiss the purported class action claim against them for failure
to state a claim upon which relief may be granted. On June 10 and
13, 2011, certain former Massey director and officer defendants
moved to dismiss the derivative claims and filed answers to the
remaining direct claims.
On September 14, 2011, the parties submitted a Stipulation Staying
Proceedings, which stays the matter until March 1, 2012, without
prejudice to the parties' right to seek an extension or a
termination of the stay by application to the court. The court
approved the stipulation and entered the stay that same day. On
January 31, 2012, the Company and Alpha Appalachia requested that
the Delaware Plaintiffs consent to a six month extension of the
stay order (the "Stay Order"); the Delaware Plaintiffs refused to
do so. On February 21, 2012, the Company and Alpha Appalachia
filed a motion to extend the Stay Order. On June 15, 2012, the
Court held a hearing on Defendants' motion to extend the Stay
Order and granted the motion, extending the stay of proceedings
until the earlier of either the completion of the United States'
criminal investigation or January 15, 2013.
AMERICAN GREETINGS: Faces Class Action Over Share Acquisition
-------------------------------------------------------------
Courthouse News Service reports that American Greetings CEO Zev
Weiss and his family plan to underpay for the acquisition of all
outstanding Class A and Class B common shares, a class claims in
court.
CAPITAL ONE: Sued Over Illegal Debt Collection Practices
--------------------------------------------------------
ABC News reports that according to a federal class action lawsuit
filed in White Plains, N.Y., Capital One Bank and Cohen and
Slamowitz, a law firm that represents it, "practice illegal credit
and collection practices."
The charge is made by attorney Shimshon Wexler, who filed suit
against Capital One and Cohen and Slamowitz for violating the Fair
Debt Collection Practices Act. The FDCP was added in 1978 to the
Consumer Credit Protection Act, which eliminates abusive debt
collection practices.
The complaint was filed Sept. 25 on behalf of "all individuals
with a New York address who have had an action filed against them
in a Supreme Court of the State of New York for a consumer debt(s)
for less than $3,000" and in which Cohen and Slamowitz is Capital
One's lawyer. The defendants' "unlawful credit and collection
practices," according to the complaint, can include communicating
with consumers at their place of employment after being asked not
to, or publishing the consumer's name or address on a "bad debt"
list.
Mr. Wexler told ABC News that he would "prefer not to talk about
it." A spokesperson for Capital One, Tatiana Stead, said she
could not comment on pending litigation.
But Mitchell Selip, counsel for Cohen and Slamowitz, said, "There
is a cottage industry of attorneys out there who make a living
suing banks and the companies that represent them based on the
Fair Debt Collection Practices Act. Many are brought by those
attorneys for the sole purpose of banks paying them 'nuisance
values' -- several thousand dollars -- to make the case go away,
regardless if there is any merit."
He added, "If someone doesn't pay money, it's only fair that they
should pay it back. If they don't, those of us who pay back our
bills wind up paying a higher interest rate on our credit cards."
In July, Capital One agreed to reimburse $140 million -- and pay
an additional $25 million penalty -- to more than two million
customers for deceptive marketing tactics used by Capital One's
call center operators to pressure or mislead consumers into paying
for "add-on products" such as payment protection and credit
monitoring when they activated their credit cards.
The action "Puts $140 million back in the pockets of two million
Capital One customers who were pressured or misled into buying
credit card products they didn't understand, didn't want, or in
some cases, couldn't even use," said Richard Cordray, director of
the Consumer Financial Protection Bureau, which ordered the
refund, in a statement. "We are putting companies on notice that
these deceptive practices are against the law and will not be
tolerated."
CARNIVAL CORP: Judge Approves Motion to Dismiss Class Action
------------------------------------------------------------
Arlene Satchell, writing for Sun Sentinel, and The Associated
Press report that a Fort Lauderdale judge has dismissed a lawsuit
filed by several Italian businesses against Carnival Corp. and its
subsidiary Costa Cruises seeking damages for financial losses
suffered due to the Costa Concordia capsizing.
Earlier last week, U.S. District Judge Robin Rosenbaum, citing a
Forum Non Conveniens doctrine, approved Carnival's motion to
dismiss the class action suit, noting it was more appropriate to
be filed in Italy, not the United States.
The 'forum' doctrine allows courts to dismiss a case when another
court or forum is more suited to hear it, according the Legal
Information Institute at Cornell University Law School.
The decision could set a precedent for several other Concordia
lawsuits that have been filed in the U.S. by survivors and
families of the 32 people who died in the tragedy blamed on
captain error.
The Concordia had more than 4,000 people onboard when it hit
submerged rocks near the Tuscan island of Giglio on Jan. 13 and
overturned.
The lawsuit was filed May 3 in U.S. District Court in Fort
Lauderdale on behalf of more than 1,000 businesses on Giglio
Island, seeking more than $75 million in damages, according to
court documents.
The plaintiffs claim the tragedy has hurt tourism, depressed
property values and caused environmental damage to Giglio's
ecosystem.
Calls to Edward Ricci's office on Sept. 28 seeking comment were
not returned.
"Costa Cruise Lines is the alter ego of Carnival," said Mr. Ricci
in an interview with The Associated Press this month, noting that
as a Carnival brand it answers to the cruise company's Miami
headquarters.
The fates of at least two other U.S. lawsuits filed in South
Florida on Sept. 4 and July 13 on behalf of more than 100
Concordia passengers combined are still pending.
Both lawsuits allege several charges against Carnival and Costa,
and plaintiffs are seeking damages for either personal injuries,
property damage or emotional distress suffered as a result of the
incident, according to court documents.
Work to refloat the Concordia is ongoing near Giglio, where the
vessel rests on its side, and is expected to be complete by April
2013.
Pompano Beach based Titan Salvage and its Italian partner Micoperi
were awarded the contract earlier this year to turn the 114,500-
ton crippled ship upright and remove it in one piece.
Once the ship is removed, Giglio's sea floor will be cleaned and
flora replanted.
COMCAST CORP: Supreme Court to Hear Antitrust Class Action
----------------------------------------------------------
Bob Fernandez, writing for Philly.com, reports that Comcast Corp.
will have its day in the U.S. Supreme Court.
A federal judge in Philadelphia has declined to enforce a
tentative settlement negotiated between plaintiffs' attorneys
suing Comcast for antitrust violations and Comcast's lawyers.
The decision by Judge John R. Padova means that the case, Behrend
v. Comcast, will be heard by the Supreme Court justices in
Washington on Nov. 5.
The nation's highest court has taken an interest in the Comcast
case because of legal issues related to certifying more than one
million Comcast subscribers as a damaged class in the class-action
lawsuit.
It's the latest development in the long-running antitrust suit,
filed in 2003, that claims Comcast benefitted by being able to
control and raise cable prices after it clustered cable systems in
the Philadelphia area through a series of swaps with other cable
companies in the late 1990s.
Comcast agreed to a tentative settlement of the case on June 12
with the help of a mediator. Then, on June 25, the Supreme Court
granted Comcast's request that it hear the case.
Financial terms of the tentative settlement are under seal in
Judge Padova's court.
Plaintiffs' attorneys asked Judge Padova to enforce the June 12
settlement, but Comcast said it wasn't final and shouldn't be
enforced.
Judge Padova wrote in a Sept. 25 opinion that it was "objectively
clear from the words of the term sheet . . . that the parties
intended to execute a more formal contract in the future."
Because of that, he could not enforce it and the Supreme Court
should hear it.
COUNTRYWIDE HOME: Must Face Mortgage Fee Class Action
-----------------------------------------------------
Chip Giambrone, writing for Westlaw Journal Bankruptcy, reports
that Countrywide Home Loans must continue to defend itself in a
"fail-safe" class action in Texas federal court that accuses the
lender of threatening discharged bankruptcy debtors with
foreclosure if they do not pay fees incurred while their
bankruptcy cases were pending.
The case is captioned Rodriguez et al. v. Countrywide Home Loans
Inc., No. 11-40056, 2012 WL 4041448 (5th Cir. Sept. 14, 2012).
The lender had argued that certification of a "fail-safe" class
was improper because by definition its members can only be
ascertained after the ultimate question of liability is resolved.
But the 5th U.S. Circuit Court of Appeals said "Countrywide does
not cite any case where we have rejected a class definition
because it created a so-called fail-safe class."
The five named plaintiffs, led by Ydalia Rodriguez, are former
debtors with mortgages serviced by Countrywide. They each had
filed Chapter 13 petitions in the U.S. Bankruptcy Court for the
Southern District of Texas.
After receiving discharges from bankruptcy, they filed an
adversary action in 2008 claiming that, despite curing their pre-
petition mortgage arrearages and receiving discharges from
bankruptcy, Countrywide threatened to foreclose on their homes if
they did not pay fees that were charged while their bankruptcy
cases were still pending, the 5th Circuit's opinion said.
The plaintiffs also say Countrywide misapplied mortgage payments
to satisfy some of the allegedly unauthorized fees instead of
applying them to satisfy the amount due each month on their
mortgages, according to the opinion.
The complaint seeks money damages and declaration that
Countrywide's conduct violated Federal Rule of Bankruptcy
Procedure 2016(a).
The rule requires, among other things, that a mortgage lender
receive court permission before collecting any reimbursable fees
and costs while a Chapter 13 case remains pending.
After the plaintiffs moved for class certification, the Bankruptcy
Court concluded in a July 2010 decision that the rule applies to
fees assessed during Chapter 13 proceedings but not collected
until after bankruptcy.
The court then granted the plaintiffs' motion for class
certification for the injunctive relief claim, but denied
certification for a damages class.
It also narrowed the potential number of class members to about
125 people who had filed Chapter 13 cases in the Southern District
of Texas before Oct. 15, 2005, who have confirmed plans that
involved Countrywide mortgages and who have outstanding fees
charged by Countrywide that are governed by Rule 2016(a).
Countrywide unsuccessfully challenged the decision with the
District Court before turning to the 5th Circuit.
The appeals court upheld the class certification.
The panel found that the evidence before the District Court showed
Countrywide charged every proposed class member fees that
allegedly violate Rule 2016(a).
The appeals court also found no error in the certification of a
"fail-safe" class.
"Because the class is similarly linked by a common complaint, the
fact that the class is defined with reference to an ultimate issue
of causation does not prevent certification," the panel said,
citing Mullen v. Treasure Chest Casino, 186 F.3d 620 (5th Cir.
1999).
Finally, the panel found no merit in Countrywide's claim that the
demand for injunctive relief has been mooted by a consent judgment
it agreed to in litigation brought by the Federal Trade Commission
in California federal court.
The consent judgment, which imposed a nationwide injunction
against Countrywide's challenged conduct, does not include all of
the relief sought by the plaintiffs in Texas, the 5th Circuit
said.
The panel noted that the consent judgment makes no mention of the
need for bankruptcy court approval under Rule 2016(a) and does not
provide relief to plaintiffs whose payments allegedly have been
misapplied by Countrywide.
The 5th Circuit returned the case to the Bankruptcy Court for
further proceedings.
Attorneys:
Plaintiffs: Karen L. Kellett, Armstrong Kellett Bartholow PC,
Dallas
Defendant: David L. Permut, Goodwin Procter LLP, Washington
COVENTRY HEALTH: Faces Class Action Over Proposed Aetna Merger
--------------------------------------------------------------
Courthouse News Service reports that Coventry Health Care is
planning to merge with Aetna for the too-low price of $7.3
billion, a class of shareholders claims in court.
COX COMMS: Sued for Forcing Subscribers to Rent Set-Top Boxes
-------------------------------------------------------------
Courthouse News Service reports that Cox Communications improperly
forces subscribers to rent its set-top boxes if they want to buy
premium cable services, a class claims in federal court.
DIRECT TV: Faces Class Action Over Debt Collection Practices
------------------------------------------------------------
Courthouse News Service reports that Direct TV uses the debt
collector CMI Group to call up consumers on their cellphones with
prerecorded messages, a class claims.
The suit is Joshua Brown v. DirecTV; The CMI Group; The CMI Group
GP; Credit Management
ENTERPRISE HOLDINGS: Sued For Inflated Rental Car Penalties
------------------------------------------------------------
Courthouse News Service reports that Enterprise Holdings profits
illegally by charging clients an inflated penalty for returning
their rental cars damaged, a class claims in federal court.
ERNST & YOUNG: Broadcom Stock Backdating Class Action Settled
-------------------------------------------------------------
Carolina Bolado, writing for Law360, reports that plaintiffs in a
class action accusing Ernst & Young LLP of covering up the $2.2
billion Broadcom Corp. stock backdating scandal on Sept. 28
settled the suit with the accounting firm for $13 million.
In a notice filed in the Central District of California, Broadcom
investors asked the court to preliminarily approve the deal, which
sets up a $13 million settlement fund for class members who bought
Broadcom stock between Feb. 14, 2006, and May 25, 2006.
FITNESS ANYWHERE: Recalls 40,000 Suspension Trainer Devices
-----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Fitness Anywhere LLC, of San Francisco, California, announced a
voluntary recall of about 40,000 Suspension Trainer Devices.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The strap length-adjustment buckles can break, posing a fall
hazard.
Fitness Anywhere has received 570 reports of the strap length-
adjustment buckles breaking with 82 reports of the user falling,
including 13 reports of head, face, shoulder and hip injuries.
This recall involves older model "Professional" (P1) and
"Tactical" (T1) TRX Suspension Trainer devices manufactured
between January 2006 and July 2007. The recalled products' anchor
straps are yellow or khaki nylon with a carabiner at the top end
and a black nylon loop on the bottom end. A black and yellow or
black and khaki nylon strap is threaded through the black nylon
loop on the anchor strap to form a "Y." On each side of the "Y,"
the strap has a cam buckle, which is used to adjust the length of
the straps. Each end of the "Y" strap has a foam-covered hand
grip and a foot cradle. The recalled devices have hand grips with
no end bumpers, which are black plastic caps covering the ends and
preventing the plastic under the foam from being exposed. They do
not have an extra nylon loop, called a locking loop, attached at
the point where the anchor strap and the "Y" straps are joined and
designed to limit the slippage of the straps. The recalled
products also have badges on the straps with the TRX logo and the
word "Professional" (for P1 devices) or "Tactical" (for T1
devices) on them. The words and logo are surrounded by raised
dots or have double lines through them.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml13/13001.html
The recalled products were manufactured in China and sold at
health and fitness stores and studios nationwide and online at
www.FitnessAnywhere.com from January 2006 through December 2009
for about $150 to $200.
Consumers should immediately stop using the recalled product and
contact Fitness Anywhere to arrange to return the recalled product
for a replacement TRX Suspension Trainer device. Return
authorization is required prior to returning the units. For
additional information, contact Fitness Anywhere toll-free at
(888)-221-7417 between 9:00 a.m. and 5:00 p.m. Pacific Time or
CustomerCare@trxtraining.com, or visit the Company's Web site at
http://www.trxtraining.com/
FREEDOM COMMUNICATIONS: Carriers to Get Legal Fee Reimbursement
---------------------------------------------------------------
Jane Yu, writing for Orange County Business Journal, reports that
class-action plaintiffs represented by Santa Ana-based law firm
Callahan & Blaine will get more than $230,000 in reimbursement for
attorneys' fees and costs from a case against Freedom
Communications Inc.
The case involved the prior owners of the media company, which
counted the Orange County Register among its various properties.
Freedom was sold to Boston-based 2100 Trust LLC in July.
The reimbursement order by Delaware's bankruptcy court addressed
the "final issue" of Freedom's bankruptcy proceedings, which will
be closed in coming weeks, according to a statement by Callahan &
Blaine.
The class-action plaintiffs -- some 3,000 newspaper carriers who
have worked for the Register --- made up the majority of Freedom's
unsecured creditor constituency.
They were represented by Dan Callahan, founding partner of
Callahan & Blaine.
The suit ended with two separate settlements that summed up to
about $30 million, enough for each driver to receive about $5,000
apiece.
The class had requested payment of "reasonable compensation and
expenses," asking for $222,986 in compensation and $7,333.34 in
expenses.
Judge Brendan Shannon granted the request, saying the class
plaintiffs "have made a substantial contribution to the bankruptcy
proceeding . . . and conferred a benefit to all similarly situated
creditors."
HAIER AMERICA: Recalls 5T 42-inch LED-TVs Due to Risk of Injury
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Haier America Trading L.L.C., of New York, announced a voluntary
recall of about 5,000 Haier(R) 42-inch LED TVs. Consumers should
stop using recalled products immediately unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The TV stand's neck support can break and cause the TV to tip
over, posing a risk of injury to the consumer.
Haier America and CPSC have received 184 reports of the TV stand's
neck cracking or breaking. No injuries have been reported.
This recall involves Haier 42-inch LED TVs with model number
LE42B1380. "Haier" is printed on the front of the TV and the
model number is printed on a label on the back of the unit.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml13/13002.html
The recalled products were manufactured in China and sold at Fry's
Electronics and other retail stores nationwide and online at
Amazon.com and other online retailers from September 2011 through
March 2012 for about $450.
Consumers should immediately stop using and detach the TV from the
stand and keep both the TV and the base in a safe location.
Consumers should contact Haier America to request a free
replacement stand neck to be used with the original base.
Consumers with a wall-mounted TV may continue to use it but should
request a free replacement stand neck in case the TV is used with
the stand in the future. For more information, contact Haier
America toll-free at (877) 813-8516 between 7:00 a.m. and 10:00
p.m. Eastern Time Monday through Friday, between 8:00 a.m. and
9:00 p.m. Eastern Time Saturday and between 8:00 a.m. and 8:00
p.m. Eastern Time Sundays. Consumers can visit the firm's Web
site at http://www.haieramerica.com/and click on Product Recalls.
HANCEVILLE, AL: Plaintiffs Dismiss Class Action Over Alcohol Taxes
------------------------------------------------------------------
Benjamin Bullard, writing for The Cullman Times, reports that a
class action lawsuit filed against Hanceville and more than two
dozen small Alabama towns has been dropped by the four Cullman
County plaintiffs who filed it two weeks ago in Montgomery County
circuit court.
The plaintiffs -- Jeremy Eddleman, David Holmes, Jason Hunt and
Gregory Shedd -- filed a motion asking that the suit be dismissed,
which Montgomery County Circuit Judge Truman Hobbs granted on
Sept. 24.
Todd McLeroy, the Cullman-based attorney who had represented the
plaintiffs in the suit, could not be reached by phone on Sept. 29.
Filed earlier this month, the short-lived suit had named
Hanceville, along with 26 other Alabama towns and the Alabama
Beverage Control Board, as defendants, claiming the plaintiffs had
been wrongly taxed after purchasing alcohol in each of the named
municipalities.
All the towns named in the suit had recently approved alcohol
sales by voter referendum under a 2009 tweak to state law that
allows residents of smaller cities and towns to decide the issue
for themselves.
At the time the suit was filed, Mr. McLeroy had stated its intent
wasn't to harm small towns; rather, he said, the suit was intended
to pose a challenge to the contentious piece of alcohol
legislation, which he said had been improperly passed through the
2009 session as an add-on to an unrelated bill.
Hanceville mayor Kenneth Nail was more angry than relieved on
Sept. 28, saying the suit should never have been brought against
towns where the plaintiffs don't live, and whose voters decided
the issue under legal provisions the state had made.
"All it was ever going to do is cost these little towns money and
hurt their businesses. It was done by a group of people who don't
have a share in the welfare of any of these places; it was
frivolous, and -- to be honest, this thing may not be over," said
Mr. Nail.
"I've been talking to some of the other mayors, and we're all just
put out by it. We're discussing a countersuit, because it's
ridiculous to just lie here and take it every time someone wants
to put a frivolous lawsuit on a city. I think folks who do things
like this need to realize -- if you're going to sue, you better
have a doggone good reason."
In attacking the state law that has made wet/dry referenda
possible in small towns, the suit claimed the state legislature
violated the Alabama Constitution when it passed a bill amending
an older statute that had previously allowed only cities with
populations of 7,000 or more the same privilege.
That bill, HB 175, amended the Alabama Municipal Option law of
1984. Controversial at the time of its 2009 passage, HB 175 was
vetoed by then-governor Bob Riley, but that veto was overturned by
the legislature.
IMMACULATA ELEMENTARY: Ex-Students File Class Action Over Abuses
----------------------------------------------------------------
Jon Woodward, writing for CTV News, reports that two schools where
former Vancouver Olympics CEO John Furlong taught 40 years ago are
the subject of a national class action lawsuit to be filed
alleging systemic abuse of First Nations youth at religious
schools.
Twenty former students of Immaculata Elementary in Burns Lake and
Prince George College have claimed they were abused -- though none
of the allegations involved Mr. Furlong, according to class action
lawyer Joan Jack.
"The students who talked to me were hurt," she said on Sept. 28.
"The mission was to kill the Indian in the child. It didn't
matter whether it was a residential school or a day school, that
was the mandate."
But Mr. Furlong, now the chair of the Vancouver Whitecaps, was not
mentioned in those conversations.
"I'd never heard of the man before I watched the news last night,"
said Ms. Jack.
Mr. Furlong categorically denied all allegations of physical and
sexual abuse at a press conference on Sept. 27. The Georgia
Straight newspaper had published a story alleging Mr. Furlong had
omitted his presence in Burns Lake from his autobiography, and had
actually come to Canada in 1969, not 1974. The story had also
contained allegations of physical abuse from eight former
students.
Since that story, another student, Beverley Abraham, has said she
went to the Burns Lake RCMP in June claiming to have been sexually
touched by Mr. Furlong at Immaculata Elementary in 1969, when she
was 12.
"I know when someone touches you in a private spot it's wrong,"
Ms. Abraham told CTV News. "I know when someone touches you in
the breast it's wrong."
Ms. Abraham's allegations are uncorroborated and she is the only
former student to make allegations of sexual abuse against Mr.
Furlong.
Another former student, Ronnie Alec, told CTV News Mr. Furlong was
rough with him when he was 14.
"We make mistakes, we end up getting slapped on the head, and
sometimes kicked from behind," Mr. Alec said.
But Mr. Alec said he never saw nor was aware of any of the sexual
abuse by Mr. Furlong that was alleged by Ms. Abraham, and he is
distancing himself from her story.
"We're not going to get behind her, I'd like to tell her that," he
said, adding that he is interested in receiving an apology from
Mr. Furlong about what he says allegedly happened to him.
The Lake Babine Indian Band has called for a full investigation.
The RCMP have confirmed they are investigating allegations against
Mr. Furlong. None of the abuse allegations against Mr. Furlong
have been proven in court.
INFOCISION MANAGEMENT: Sued for Misrepresenting Donations
---------------------------------------------------------
Betty Lin-Fisher, writing for Beacon Journal, reports that a
lawsuit seeking class-action certification has been filed in
Cuyahoga County Common Pleas Court against Bath Twp.-based
InfoCision Management Corp.
The second-largest privately held teleservices firm in the country
was the focus of a Bloomberg Markets news report earlier this
month, which was published in the Akron Beacon Journal and other
newspapers nationwide and was featured on NBC's Today show.
The lawsuit was filed by Elk & Elk Co., an Ohio law firm
headquartered in Mayfield Heights which on its Web site says that
it specializes in personal injury lawsuits. The suit says
InfoCision "intentionally misrepresents to potential donors how
much of their contribution will reach those in need."
In one instance referenced from the Bloomberg report, the suit
says in a 2011 contract with the American Diabetes Association, it
was estimated that InfoCision would raise $4.6 million in revenues
for the charity and retain $3.9 million or 85 percent, leaving 15
percent for the charity. The suit also refers to part of the
story that said scripts instructed telemarketers to represent to
donors that "about 75 percent of every dollar goes directly to
serving people with diabetes and their families."
InfoCision Chief of Staff Steve Brubaker said the company disputes
the Bloomberg report, calling it "misleading and false. Anything
based on that [such as the Elk & Elk lawsuit], we would have the
same opinion." Mr. Brubaker said on Sept. 28 he had not read the
lawsuit and the company would be reviewing it with its legal team.
In a letter to the editor published in the Beacon Journal after
the Bloomberg story appeared, Mr. Brubaker said the company
supports charities' missions by "carrying the majority of the
costs of fundraising for them. InfoCision does not keep the money
raised. Nothing could be further from the truth."
Bloomberg through a spokeswoman said "we stand by our reporting."
The lawsuit's plaintiff is Dora Oatman of East Cleveland, who
received phone calls from InfoCision on behalf of the American
Diabetes Association, American Cancer Society and the American
Heart Association and donated to the charities.
The suit is seeking class-action certification for anyone
nationwide who during the last four years either: (1) received a
call from Infocision on behalf of a charitable organization; (2)
was told by an InfoCision representative that a greater percentage
of their donation would go to the charitable organization than
what the charitable organization actually received or will
receive, and (3) transferred money either directly to the
charitable organization or to InfoCision to be donated.
Elk & Elk partner Jay Kelley, a co-counsel for the plaintiff, said
the firm believes "an injustice occurred with how they induced
these individuals to make donations. The real sad thing is there
are two groups. Charities didn't get all of the money individuals
wanted to go to them and individuals obviously had no idea a large
portion of what they were donating was going to someone's profit
line."
Mr. Kelley said the firm, with offices around the state, ran ads
seeking potential victims in the Akron Beacon Journal and
Cleveland Plain Dealer.
At least one other law firm says it is investigating InfoCision
following the story. Sarraf Gentile LLP, a firm in New York which
says it specializes in a wide variety of litigation, including
class actions, has issued a press release saying it is looking for
information about InfoCision and will talk to people who donated
money to InfoCision. A lawyer with the firm declined to comment
on the ongoing investigation.
KUBOTA MANUFACTURING: Recalls 970 Off-Road Utility Vehicle Units
----------------------------------------------------------------
About 970 units of Off-road Utility Vehicles were voluntarily
recalled by Kubota Manufacturing of America Corporation, of
Gainesville, Georgia, in cooperation with the CPSC. Consumers
should stop using the product immediately unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
Carbon monoxide can accumulate in the vehicle cab when the engine
is idling and the vehicle is not moving, resulting in carbon
monoxide poisoning.
Two instances of headaches attributed to carbon monoxide gas have
been reported to the firm.
The recalled vehicle is the Kubota RTV500 with cab. It is a 4x4
utility vehicle with side-by-side seating for two people, a small
cargo bed and an optional cab. The vehicle is gasoline-powered
and available in the colors orange or camouflage. The model
number "RTV500" is on the doors of the vehicle. "Kubota" and
"4x4" are on the outside of the cargo bed. A picture of the
recalled products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml13/13701.html
The recalled products were manufactured in the United States of
America and sold at authorized Kubota dealers nationwide from
September 2008 through April 2012 for between $12,900 and $13,200.
Consumers should contact their Kubota dealer to schedule a free
repair of the recalled vehicle, including the installation of a
high-velocity exhaust tail pipe, the installation of special seals
inside the cab and a check of the ventilating system. For more
information, contact Kubota toll-free at (800) 752-0290 between
8:30 a.m. and 4:30 p.m. Pacific Time Monday through Friday or
visit the firm's Web site at http://www.kubota.com/and click on
Safety/Safety Notices. Kubota is contacting its customers
directly.
LATE JULY: Recalls Mini Peanut Butter Sandwich Crackers
-------------------------------------------------------
Late July Snacks, LLC, out of an abundance of caution, is
cooperating fully with the Sunland Inc. voluntary recall of nut
butter products manufactured by Sunland at its New Mexico facility
between May and September 2012. In its press release
(http://www.sunlandinc.com/788/html/pdfs/SunlandRecall.pdf)
Sunland identified the Sunland Extra Stabilized Organic Creamy
Peanut Butter as part of the voluntary recall. Sunland is one of
the Company's peanut butter suppliers and this peanut butter was
an ingredient used in recent production of the Company's Late July
Mini Peanut Butter Sandwich Crackers.
The Organic Mini Peanut Butter Sandwich Crackers are being
recalled because Sunland states that their peanut butter has the
potential to be contaminated with Salmonella. Salmonella is an
organism which can cause serious and sometimes fatal infections in
young children, frail or elderly people, and others with weakened
immune systems. Please visit the Centers for Disease Control and
Prevention's Web site at http://www.cdc.govfor more information.
No illnesses have been reported to date with consumption of the
Sunland Extra Stabilized Organic Creamy Peanut Butter or Late July
Organic Mini Peanut Butter Sandwich Crackers. Late July Snacks is
committed to producing the highest quality products and our top
priority is the safety of our customers. For this reason we are
issuing this voluntary recall of the products below as a
precautionary measure:
Late July Organic Mini Peanut Butter Sandwich Crackers:
UPC Code Pack Size Best Before Codes/Lot Codes
-------- --------- ---------------------------
890444000700 5 oz box 19MAY13 through 11JUL13
(stamped on box of bottom)
890444000724 & 8 ct carton/ 15JUN13 through 10JUL13
890444000717 1.125 oz (single (code is stamped on each
serve caddy) & individual pack or on the
1.125 oz pack end of the carton)
(single serve pack)
No other code dates of this product are included in this action.
No other Late July Snacks products are involved in this action.
Customers who purchased this item are urged to return it to the
place of purchase for a full refund. Consumers with further
questions may contact the Company at (508) 362-5859 or visit
http://www.LateJuly.com/
MBIA INC: Dec. 10 Class Action Settlement Fairness Hearing Set
--------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Sept. 28 issued a statement
pursuant to an order of the United States District Court for the
Southern District of New York:
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In re MBIA INC. SECURITIES LITIGATION
Civil Action No. 05-CV-03514(LLS)
ECF Case
CLASS ACTION
This Document Relates To:
ALL ACTIONS.
SUMMARY NOTICE
TO: ALL PERSONS WHO PURCHASED OR ACQUIRED MBIA INC.
COMMON STOCK DURING THE PERIOD AUGUST 5, 2003 THROUGH
MARCH 30, 2005, INCLUSIVE
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District
Court for the Southern District of New York, (i) that the above-
captioned litigation has been certified as a class action on
behalf of all persons and entities who purchased or acquired MBIA
common stock during the period from August 5, 2003 through
March 30, 2005, inclusive, except for certain persons and entities
who are excluded from the Class by definition as set forth in the
Settlement Agreement; and (ii) that Lead Plaintiffs in the Action
have reached a proposed settlement of the Action with defendants
MBIA, Gary Dunton, Neil G. Budnick, Joseph W. Brown, Douglas C.
Hamilton, Nicholas Ferreri, and Richard L. Weill for $3.75 million
in cash, plus interest thereon, that, if approved, will resolve
all claims in the Action.
A hearing will be held at 3:00 p.m., on December 10, 2012, before
the Honorable Louis L. Stanton, in Courtroom 21C of the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, New
York, NY 10007, for the purpose of determining (1) whether the
proposed settlement of the Action for the sum of Three Million,
Seven Hundred and Fifty Thousand Dollars ($3,750,000.00) in cash
should be approved by the Court as fair, reasonable, and adequate;
(2) whether, thereafter, this Action should be dismissed with
prejudice against Defendants as set forth in the Settlement
Agreement dated August 24, 2012; (3) whether the Plan of
Distribution of settlement proceeds is fair, reasonable, and
adequate and therefore should be approved; and (4) whether the
application of Lead Counsel for the payment of attorneys' fees and
expenses incurred in connection with this Action, together with
interest thereon, should be approved.
If you are a member of the Class, your rights may be affected by
this Action and the settlement thereof. If you have not received
a detailed Notice of Pendency of Proposed Settlement of Class
Action and a copy of the Proof of Claim and Release form, you may
obtain copies by writing to MBIA Securities Litigation, Claims
Administrator, c/o Gilardi & Co. LLC, P.O. Box 990, Corte Madera,
CA 94976-0990, or by downloading this information at
http://www.gilardi.com
If you are a Class Member, in order to share in the distribution
of the Net Settlement Fund, you must submit a Proof of Claim and
Release form postmarked no later than February 23, 2013,
establishing that you are entitled to a recovery. You will be
bound by any judgment rendered in the Action unless you request to
be excluded, in writing, to the above address, postmarked by
November 3, 2012.
Any objection to any aspect of the settlement must be filed with
the Clerk of the Court no later than November 5, 2012, and
received by the following no later than November 5, 2012:
Ellen Gusikoff Stewart, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Counsel for Lead Plaintiffs
Steven Klugman, Esq.
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022
John N. Orsini, Esq.
FRIEDMAN KAPLAN SEILER & ADELMAN LLP
7 Times Square
New York, NY 10036
Counsel for Defendants
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
DATED: September 12, 2012
BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF NEW YORK
MMI RETIREMENT: Judge to Hear Motion to Dismiss Class Action
------------------------------------------------------------
Ferdie de la Torre, writing for Saipan Tribune, reports that U.S.
District Court for the NMI designated Judge Frances Tydingco-
Gatewood wants to first address Gov. Benigno R. Fitial's and co-
defendants' motion to dismiss the class action filed by retiree
Betty Johnson before hearing other motion.
Jude Tydingco-Gatewood on Sept. 28 vacated her previous order that
set a hearing on the preliminary injunction for Oct. 2.
The judge will hear the motion to dismiss on Oct. 30 at 10:00 a.m.
"The parties should bear in mind that late filings will not be
considered by the court," Judge Tydingco-Gatewood said.
On Oct. 2, Judge Tydingco-Gatewood was set to conduct a hearing so
that the MMI Retirement Fund's trustee ad litem Joseph C. Razzano
can report on the status and his findings so far.
The judge said there is a good cause to extend the Temporary
Restraining Order until the court resolves the motion to dismiss.
Judge Tydingco-Gatewood said until the court rules on the
preliminary injunction, the parties, in particular, Gov. Fitial,
agreed that no action would be taken to enforce Executive Order
2012-06.
Gov. Fitial issued E.O. 2012-06 that declares a state of emergency
for the Fund.
On Sept. 10, 2012, Judge Tydingco-Gatewood issued the TRO that
prohibits Gov. Fitial from enforcing the executive order.
Ms. Johnson named as defendants Gov. Fitial, Fund trustees Adelina
C. Roberto and Nacrina Barcinas, former Fund administrator Richard
S. Villagomez, acting Finance secretary Larissa Larson, the CNMI
government, Finance, Fund, and the Fund Board of Trustees.
Ms. Johnson is suing the defendants for breach of contract,
violation of the U.S. and CNMI Constitutions, violation of due
process, deprivation of rights, breach of fiduciary duty, and
unjust enrichment.
NELNET INC: Awaits Order on Bid to Dismiss "Yaakov" Suit v. Unit
----------------------------------------------------------------
Nelnet, Inc. is awaiting a court decision on its motion to dismiss
the class action lawsuit titled Bais Yaakov of Spring Valley v.
Peterson's Nelnet, LLC, according to the Company's August 9, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
On January 4, 2011, a complaint against Peterson's Nelnet, LLC
("Peterson's"), a subsidiary of the Company, was filed in the U.S.
federal District Court for the District of New Jersey (the
"District Court"). The complaint alleges that Peterson's sent six
advertising faxes to the named plaintiff in 2008-2009 that were
not the result of express invitation or permission granted by the
plaintiff and did not include certain opt out language. The
complaint also alleges that such faxes violated the federal
Telephone Consumer Protection Act (the "TCPA"), purportedly
entitling the plaintiff to $500 per violation, trebled for willful
violations for each of the six faxes. The complaint further
alleges that Peterson's had sent putative class members more than
10,000 faxes that violated the TCPA, amounting to more than $5
million in statutory penalty damages and more than $15 million if
trebled for willful violations. The complaint seeks to establish
a class action for two different classes of plaintiffs: Class A,
to whom Peterson's sent unsolicited fax advertisements containing
opt out notices similar to those contained in the faxes received
by the named plaintiff; and Class B, to whom Peterson's sent fax
advertisements containing opt out notices similar to those
contained in the faxes received by the named plaintiff. As of
August 9, 2012, the District Court has not established or
recognized any class.
On February 16, 2011, Peterson's filed a motion to dismiss the
complaint based on a lack of federal question or diversity
jurisdiction with respect to the complaint, which was denied by
the District Court on April 15, 2011, shortly after a similar
motion to dismiss that had been granted in an unrelated case
involving alleged TCPA violations related to faxes, titled
Landsman & Funk PC v. Skinder-Strauss Associates (the "Landsman
Case"), was reversed by the U.S. Court of Appeals for the Third
Circuit (the "Appeals Court"), which has jurisdiction over the
District Court. On April 29, 2011, Peterson's filed an answer to
the complaint, but also filed a motion for reconsideration of the
motion to dismiss. On May 17, 2011, the Appeals Court granted a
petition for rehearing of the motion to dismiss in the Landsman
Case, and on May 31, 2011, Peterson's filed a motion for stay
pending the outcome of that rehearing. On September 12, 2011, the
motion for stay was granted, and the motion for reconsideration
was denied by the District Court. On January 18, 2012, the U.S.
Supreme Court issued a decision in an unrelated TCPA case which
held that federal courts have federal question jurisdiction over
private causes of action under the TCPA. On January 20, 2012, the
named plaintiff requested that the stay be lifted on the basis of
the Supreme Court's decision, and on January 25, 2012 the District
Court denied that request since the stay was based on the outcome
of the Appeals Court rehearing in the Landsman Case.
On April 14, 2012, the Appeals Court issued an order in the
Landsman Case vacating its prior order for rehearing, and
remanding that case to the District Court to determine whether the
statutory provisions of the TCPA limit whether or to what extent a
TCPA claim can be heard as a class action in federal court where
applicable state law would impose limitations on a class action if
the claim were brought in state court. The resolution of this
issue may affect whether the claim against Peterson's can be
pursued as a class action, and in light of the ruling, Peterson's
requested and received the District Court's permission to file a
renewed motion to dismiss the complaint. Peterson's filed that
motion on May 29, 2012. The District Court has not yet ruled on
the motion.
Peterson's intends to continue to contest the lawsuit vigorously.
Due to the preliminary stage of this matter and the uncertainty
and risks inherent in class determination and the overall
litigation process, the Company believes that a meaningful
estimate of a reasonably possible loss, if any, or range of
reasonably possible losses, if any, cannot currently be made.
PETALUMA EGG: Faces Class Action Over False "Cage-Free" Labeling
----------------------------------------------------------------
Karina Ioffee, writing for Petaluma Patch, reports that an animal
rights group has filed a class action lawsuit against a Petaluma
egg producer claiming the company falsely markets its eggs as
cage-free order to charge eco-conscious consumers more money.
The suit, filed in California Superior Court on Oct. 1 by the
Animal Legal Defense Fund, alleges that Judy's Family Farm and
Petaluma Farms engaged in unlawful, unfair and fraudulent business
practices by creating labels that led consumers to believe they
were buying cage-free eggs.
The group says the company did this by designing cartons that have
an image of hens frolicking in open fields, leading shoppers to
believe they were "free-range". The eggs are sold at Whole Foods,
Safeway and Oliver's Market, where they cost more than $4 per
dozen, significantly pricier than regular eggs.
According to the suit, the estimated 13,000 hens at Petaluma Egg
Farms "spend their entire lives inside modern, barren industrial
sheds with no grassy fields and no outdoor access," says the
group, and are not raised in wide open spaces in Sonoma Valley,
where they are free to 'roam, scratch, and play.
Nor do they have access to the outdoors and enjoy large communal
areas with natural ventilation and sunlight, according to the
lawsuit.
The discrepancy between the marketing and the true conditions of
the farm constitutes a violation of California's Unfair
Competition Law, False Advertising Law and Consumer Legal Remedies
Act, the group says.
On Oct. 1, the Web sites for both Judy's Family Farm and Petaluma
Egg Farm were down and a message and e-mail sent to the company
were not immediately returned.
But in a 2011 Press Democrat story, owner Steve Mahrt said that
critics are ill-informed about what constitutes cage-free eggs.
"People have the expectation that all the chickens are outside,"
Mr. Mahrt told the paper. "That doesn't happen. That doesn't
happen anywhere."
According to the U.S. Department of Agriculture, cage-free eggs
mean that hens are not kept in conventional "battery" cages,
although it doesn't necessarily mean they have access to the
outdoors or that the eggs have more nutrients. Nor does it mean
the hens are kept in large spaces, but may be crammed into a
warehouse shoulder-to-shoulder.
In its lawsuit, filed on behalf of an East Bay resident and other
consumers, ALDF asks the court to barr Judy's Eggs from using
images that imply its products come from non-confined hens in an
outdoor environment or use language that implies the hens were
raised in open spaces.
It also seeks compensation for damages to consumers and a jury
trial.
"Americans spend more (money) for higher levels of animal welfare
because they find the suffering of egg-laying hens objectionable,"
the group wrote in its suit. "Deceptive packaging like that on
Judy's Eggs allows the company to profit from misleading well-
intentioned consumers."
PHOENIX COS: "Curran" Parties Engaged in Pre-Trial Discovery
------------------------------------------------------------
The parties in the class action lawsuit filed by Carol Curran, et
al., are engaged in pre-trial discovery, according to The Phoenix
Companies, Inc.'s August 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On January 4, 2010, the Company signed a definitive agreement to
sell PFG Holdings, Inc. and its subsidiaries, including AGL Life
Assurance Company, to Tiptree. Because of the divestiture, these
operations are reflected as discontinued operations. On June 23,
2010, the Company completed the divestiture of PFG and closed the
transaction.
The definitive agreement contains a provision requiring the
Company to indemnify Tiptree for any losses due to actions
resulting from certain specified acts or omissions associated with
the divested business prior to closing. There has been litigation
filed that falls within this provision of the agreement but does
not name the Company as a party to the litigation. The Company
intends to defend these matters vigorously based on its indemnity
commitment.
Carol Curran, et al. v. AGL Life Assurance Co. et al. is a case
filed in the state district court in Boulder County, Colorado,
that falls under the indemnification with Tiptree. The Company is
not a party to the lawsuit. On August 8, 2011, the state district
court judge certified a class action. The parties are engaged in
pre-trial discovery. The outcome of this litigation is uncertain
and the amount of potential loss in the event of an adverse
outcome cannot be estimated.
PORTFOLIO RECOVERY: Consolidated TCPA Suit Pending in Calif.
------------------------------------------------------------
A consolidated class action complaint alleging that Portfolio
Recovery Associates, Inc., violated the Telephone Consumer
Protection Act is pending in California, according to the
Company's August 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
The Company was been named as defendant in a number of putative
class action cases, each of which alleging that the Company
violated the Telephone Consumer Protection Act ("TCPA") by calling
consumers' cellular telephones without their prior express
consent. On December 21, 2011, the United States District Panel
on Multi-District Litigation entered an order transferring these
matters into one consolidated proceeding in the United States
District Court for the Southern District of California. On June
22, 2012, the putative class plaintiffs filed their consolidated
complaint in the matter, now styled as In re Portfolio Recovery
Associates, LLC Telephone Consumer Protection Act Litigation, Case
No. 11-md-02295.
This matter has not yet proceeded on whether or not to certify a
class or on the merits of the allegations, and no demand has been
made. Additionally, even if a class is ultimately certified,
further discovery must take place in order to determine its size.
Therefore, any potential loss for these and other similar TCPA
matters cannot be estimated at this time. However, in the event
that a class is eventually certified and the Company neither
settles nor prevails on these matters, or settles for a
significant amount, the Company's damages, when aggregated, could
potentially exceed its established liability, and could be
material to the Company's financial condition, results of
operations or cash flows for any particular reporting period.
RHODE ISLAND: Medical Marijuana Patients File Class Action
----------------------------------------------------------
Courthouse News Service reports that Rhode Island never warned
medical marijuana patients that it would no longer honor
applications signed by nurse practitioners, a class claims in
court.
SOUTHERN STAR: Price Litigation I Remains Pending in Kansas
-----------------------------------------------------------
Southern Star Central Gas Pipeline, Inc., or Central, is Southern
Star Central Corp.'s only operating subsidiary and the sole source
of its operating revenues and cash flows.
In the putative class action captioned Will Price, et al. v. El
Paso Natural Gas Co., et al., Case No. 99 C 30, District Court,
Stevens County, Kansas, or Price Litigation I, filed May 28, 1999,
the named plaintiffs, or Plaintiffs, have sued over 50 defendants,
including Central. Asserting theories of civil conspiracy, aiding
and abetting, accounting and unjust enrichment, their Fourth
Amended Class Action Petition alleges that the defendants have
under measured the volume of, and therefore have underpaid for,
the natural gas they have obtained from or measured for
Plaintiffs. Plaintiffs sought unspecified actual damages,
attorney fees, pre- and post-judgment interest, and reserved the
right to plead for punitive damages. On
August 22, 2003, an answer to that pleading was filed on behalf of
Central. Despite a denial by the Court on April 10, 2003 of their
original motion for class certification, the Plaintiffs continued
to seek the certification of a class. The Plaintiffs' motion
seeking class certification for a second time was fully briefed
and the Court heard oral argument on the motion on
April 1, 2005. On September 18, 2009, the Court denied the
Plaintiffs' motion for class certification. The Plaintiffs filed
a motion to reconsider that ruling on October 2, 2009. The
defendants, including Central, filed a response in opposition to
the Plaintiffs' motion for reconsideration on January 18, 2010.
The Plaintiffs filed a reply, and oral argument, which was
presented before a different judge, was heard on February 10,
2010. By order dated March 31, 2010, the Court denied the
Plaintiffs' October 2, 2009 motion to reconsider the earlier
denial of class certification. The Plaintiffs did not file for
interlocutory review of the March 31, 2010 order, but through
their counsel they initiated certain discovery to which Central
and other defendants have objected. In June 2011, certain
defendants other than Central filed motions for summary judgment
seeking, among other things, a ruling on the legal issue of
whether Plaintiffs' civil conspiracy claim could be based upon
their underlying unjust enrichment claim.
In January 2012, the Court issued an order concluding that under
Kansas law a conspiracy claim could be so based. These Defendants
petitioned for interlocutory review of that ruling, but the Court
of Appeals of Kansas denied their request on February 23, 2012.
The Company says it is unknown whether Plaintiffs will follow
through on discovery and/or otherwise proceed with the litigation
on a non-class basis.
No updates were reported in the Company's August 9, 2012, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
Southern Star Central Corp. operates as a holding company for its
regulated pipeline operations and development opportunities.
Southern Star Central Gas Pipeline, Inc. is its only operating
subsidiary. Southern Star also owns the development rights for
Western Frontier, which could be developed in the future. The
Company owns and operates an approximately 6,000 mile interstate
natural gas pipeline and associated storage facilities in the
Midwest, serving customers in Missouri, Kansas, Oklahoma, and
parts of Colorado, Nebraska, Wyoming, and Texas. The Company is
headquartered in Owensboro, Kentucky.
SOUTHERN STAR: Price Litigation II Remains Pending in Kansas
------------------------------------------------------------
Southern Star Central Gas Pipeline, Inc., or Central, is Southern
Star Central Corp.'s only operating subsidiary and the sole source
of its operating revenues and cash flows.
In the putative class action captioned Will Price, et al. v. El
Paso Natural Gas Co., et al., Case No. 03 C 23, District Court,
Stevens County, Kansas, or Price Litigation II, filed May 12,
2003, the named Plaintiffs from Case No. 99 C 30 have sued the
same defendants, including Central. Asserting substantially
identical legal and/or equitable theories, as in Price Litigation
I, this petition alleges that the defendants have under measured
the British thermal units, or Btu, content of, and therefore have
underpaid for, the natural gas they have obtained from or measured
for Plaintiffs. Plaintiffs sought unspecified actual damages,
attorney fees, pre- and post-judgment interest, and reserved the
right to plead for punitive damages. On
November 10, 2003, an answer to that pleading was filed on behalf
of Central. The Plaintiffs' motion seeking class certification,
along with Plaintiffs' second class certification motion in Price
Litigation I, was fully briefed and the Court heard oral argument
on this motion on April 1, 2005. On September 18, 2009, the Court
denied the Plaintiffs' motion for class certification. The
Plaintiffs filed a motion to reconsider that ruling on October 2,
2009. The defendants, including Central, filed a response in
opposition to the Plaintiffs' motion for reconsideration on
January 18, 2010. The Plaintiffs filed a reply, and oral
argument, which was presented before a different judge, was heard
on February 10, 2010. By order dated March 31, 2010, the Court
denied the Plaintiffs' October 2, 2009 motion to reconsider the
earlier denial of class certification. The Plaintiffs did not
file for interlocutory review of the March 31, 2010 order, but
through their counsel they initiated certain discovery to which
Central and other defendants have objected. In June 2011, certain
defendants other than Central filed motions for summary judgment
seeking, among other things, a ruling on the legal issue of
whether Plaintiffs' civil conspiracy claim could be based upon
their underlying unjust enrichment claim.
In January 2012, the Court issued an order concluding that under
Kansas law a conspiracy claim could be so based. These Defendants
petitioned for interlocutory review of that ruling, but the Court
of Appeals of Kansas denied their request on February 23, 2012.
The Company says it is unknown whether Plaintiffs will follow
through on discovery and/or otherwise proceed with the litigation
on a non-class basis.
No updates were reported in the Company's August 9, 2012, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
Southern Star Central Corp. operates as a holding company for its
regulated pipeline operations and development opportunities.
Southern Star Central Gas Pipeline, Inc. is its only operating
subsidiary. Southern Star also owns the development rights for
Western Frontier, which could be developed in the future. The
Company owns and operates an approximately 6,000 mile interstate
natural gas pipeline and associated storage facilities in the
Midwest, serving customers in Missouri, Kansas, Oklahoma, and
parts of Colorado, Nebraska, Wyoming, and Texas. The Company is
headquartered in Owensboro, Kentucky.
UBIQUITI NETWORKS: Alfred G. Yates Files Class Action in Calif.
---------------------------------------------------------------
The Law Office of Alfred G. Yates Jr., P.C. announced that it has
filed a class action in the United States District Court for the
Northern District of California on behalf of purchasers of
Ubiquiti Networks, Inc. common stock during the period between
October 14, 2011 and August 9, 2012, and/or who acquired Ubiquiti
common stock pursuant or traceable to the Company's October 14,
2011 initial public offering ("IPO").
If you wish to discuss this action or have any questions
concerning this notice or your rights or interests, please contact
plaintiff's counsel, Alfred G. Yates Jr., Esquire at 1-800-391-
5164, toll free, or at yateslaw@aol.com by e-mail. Please visit
http://yatesclassactionlaw.comfor more information. Any member
of the putative class may move the Court to serve as lead
plaintiff through counsel of their choice, or may choose to do
nothing and remain an absent class member. If you wish to serve
as lead plaintiff, you must move the Court no later than November
6, 2012.
The complaint charges Ubiquiti, certain of its officers and
directors and the underwriters of its IPO with violations of the
Securities Exchange Act of 1934 and the Securities Act of 1933.
The complaint alleges that during the Class Period and in the
Registration Statement and Prospectus issued in connection with
the IPO, defendants issued materially false and misleading
statements regarding the Company's business practices and
financial results. Specifically, defendants failed to disclose
negative trends in Ubiquiti's business, including widespread
problems associated with counterfeit versions of its AirMax
wireless gear being made available to the market. As a result of
defendants' false statements, Ubiquiti stock traded at
artificially inflated prices during the Class Period, reaching a
high of $35 per share on May 1, 2012.
Plaintiff seeks to recover damages on behalf of all purchasers of
Ubiquiti common stock during the Class Period and/or who acquired
Ubiquiti common stock pursuant or traceable to the Company's
October 14, 2011 IPO.
The firm is also investigating actions on behalf of shareholders
for the following companies: American Greetings Corp.; American
Realty Capital Trust, Inc.; Audience, Inc.; Questcor
Pharmaceuticals, Inc., Sealy Corporation, and West Coast Bancorp.
If you are a shareholder of any of the above companies and wish
learn more about any of the investigations or have any questions,
please contact Alfred G. Yates Jr., Esquire at 1-800-391-5164,
toll free, or at yateslaw@aol.com by e-mail.
Contact:
Alfred G. Yates, Jr., Esq.
Telephone: (412) 391-5164
Toll Free: 1(800) 391-5164
Web site: http://yatesclassactionlaw.com
E-mail: yateslaw@aol.com
UBS AG: Judge Dismisses Fraud Class Action
------------------------------------------
John O'Brien, writing for Legal Newsline, reports that a federal
judge has dismissed a class action lawsuit brought against UBS AG
and several underwriters by a group that alleged fraud on the part
of the financial services firm.
U.S. District Judge Richard Sullivan on Sept. 28 granted the
defendants' motion to dismiss the case, which saw its first filing
in 2007, in a 40-page opinion. UBS was alleged to have concealed
its exposure to mortgage-related securities and auction-rate
securities, as well as committing tax fraud.
The class consisted of those who purchased securities issued by
UBS from Aug. 13, 2003 to Feb. 23, 2009.
"(T)he court finds that Plaintiffs have failed to plead scienter
under the Exchange Act as to the mortgage-related securities and
ARS frauds and materiality as to the alleged tax fraud," Judge
Sullivan wrote.
Judge Sullivan noted that the plaintiffs' amended complaint spans
548 pages and includes 1,477 paragraphs.
Lead plaintiff for the case was the City of Pontiac Policemen's
and Firemen's Retirement System. Other plaintiffs were the
Teamsters Union Local 500 Severance Fund, the Council of the
Borough of South Tyneside, the Oregon Public Employees Board and
Alaska Laborers.
Firms representing the plaintiffs were: Topaz Kessler Meltzer &
Check of Radnor, Pa.; Grant & Eisenhofer of New York; Motley Rice
of Mt. Pleasant, S.C.; and Robbins Geller Rudman & Dowd of
Melville, N.Y.
The plaintiffs alleged UBS concealed the truth about its mortgage-
related securities portfolio by acquiring high concentrations of
highly illiquid subprime and Alt-A mortgage-backed assets in
contravention of UBS's risk management policy and public
statements, manipulating risk measures and overvaluing its
mortgage-related securities portfolio.
They also alleged UBS concealed its exposure in the auction-rate
securities market, which crashed in 2008. In its 2007 annual
report, UBS reported that it had acquired at least $5.9 billion in
ARS. On May 6, 2008, UBS announced writedowns of $974 million on
its ARS portfolio.
The final allegation concerned the company's Swiss-based cross-
border private banking business. The U.S. government indicted
former senior UBS banker Bradley Birkenfeld in 2008, charging him
with tax fraud.
Mr. Birkenfeld had been giving information to the Department of
Justice that resulted in $780 million in fines assessed to the
company, more than 35,000 taxpayers participating in "amnesty"
programs voluntarily repatriating their offshore accounts and the
collection of over $5 billion in back taxes, fines and penalties.
Though Mr. Birkenfeld was sentenced to prison time, he was paid
$104 million for his role as whistleblower in September.
The plaintiffs alleged UBS made several general, but false or
misleading, statements about its overall and U.S.-based Wealth
Management businesses that did not reveal the full scope of the
misconduct.
UNITED STATES: Judge Certifies Vietnam Veterans' Class Action
-------------------------------------------------------------
Adam Klasfeld at Courthouse News Service reports that a federal
judge certified a class action lawsuit that could send thousands
of Vietnam veterans into treatment for diseases they contracted
during Cold War-era drug and chemical experiments.
The Army and the CIA, with the help of Nazi scientists, used
veterans as human guinea pigs for testing the effects of up to 400
types of drugs and chemicals, including mescaline, LSD,
amphetamines, barbiturates, mustard gas and nerve agents, the
Vietnam Veterans of America and individual soldiers claimed in a
2009 class action.
Veterans say the government was trying to develop and test
substances that could trigger mind control, confusion, euphoria,
altered personality, unconsciousness, physical paralysis,
illogical thinking and mania, among other effects.
The experiments in Army compounds at Edgewood Arsenal and Fort
Detrick, Md., allegedly left many veterans with debilitating
health problems for decades.
The government has since refused to give them proper medical care,
according to the lawsuit.
On Sept. 28, U.S. District Judge Claudia Wilken granted the
plaintiffs class action status, potentially opening up thousands
of veterans to three types of relief.
The trial could force government agencies to notify participants
of the known health impacts of the substances they received,
mandate health care for those who have suffered diseases and
guarantee due process for veterans denied benefits.
The Department of Veterans Affairs has denied between 97 and 99
percent of all disability or death claims arising out of the
alleged exposures, according to the plaintiff's law firm, Morrison
& Foerster.
The veterans do not seek money damages.
The class action will include: "All current or former members of
the armed forces, or in the case of deceased members, the personal
representatives of their estates, who, while serving in the armed
forces, were test subjects in any human Testing Program that was
sponsored, overseen, directed, funded, and/or conducted by the
Department of Defense or any branch thereof, including but not
limited to the Department of the Army and the Department of the
Navy, and/or the Central Intelligence Agency, between the
inception of the Testing Programs in approximately 1922 and the
present. For the purposes of this definition, 'Testing Program'
refers to a program in which any person was exposed to a chemical
or biological substance for the purpose of studying or observing
the effects of such exposure," according to the 59-page order.
Up to 100,000 veterans may fall into this category, according to
estimates by Morrison & Foerster.
A copy of the Order Granting in Part, and Denying in Part,
Plaintiffs' Motion for Class Certification, Denying Defendants'
Motions for Leave to File a Motion for Reconsideration and for
Relief From a Nondispositive Order of Magistrate Judge, and
Granting in Part, and Denying in Part, Plaintiffs' Motion to
Substitute in Vietnam Veterans of America, et al. v. Central
Intelligence Agency, et al., Case No 09-cv-00037 (N.D. Calif.), is
available at:
http://is.gd/8emzSo
UNITED STATES: Seeks Dismissal of Wiretap Class Action
------------------------------------------------------
Philip A. Janquart at Courthouse News Service reports that the
U.S. government says it is immune from a class action that seeks
to end the alleged "dragnet" electronic surveillance of innocent
Americans.
Two lawsuits have been filed in recent years, claiming the
National Security Agency, under the current direction of Director
Keith Alexander and the president of the United States, have
orchestrated a program of indiscriminate surveillance of U.S.
citizens.
The first suit was brought by lead plaintiff Carolyn Jewel on
behalf of current and former AT&T customers who say the company
allowed, and even enabled, the NSA to eavesdrop on them. That
suit is still pending, as is the most recent class-action, filed
in 2007 by Virginia Schubert and three others, representing all
Americans who have been illegally "spied on" by their own
government.
Former President George W. Bush authorized the Terrorist
Surveillance Program (TSP) following the Sept.11 terrorist
attacks. The program, Ms. Schubert alleges, compromises citizens'
Fourth Amendment rights and continues today under the Obama
administration.
Like Ms. Jewel, Ms. Schubert alleges the NSA has violated the
Constitution, as well as the federal Wiretap Act and the
Electronic Communications Privacy Act. The Schubert plaintiffs
specifically claim violation of the Fourth Amendment of the U.S.
Constitution and of the Foreign Intelligence Surveillance Act
(FISA). The Two suits jointly claim the federal government waives
its right to sovereign immunity under those acts.
The Government, however, claims to have invoked state secrets
privileges that protects it from any litigation consequentially
stemming from supposed violations of those acts.
"The Foreign Intelligence Surveillance Act does not authorize a
claim against the Government defendants sued in their official
capacities, the state secrets privilege bars the litigation of
plaintiffs' remaining claims and the state secrets privilege is
not displaced by the FISA," said the Government in its third
motion for dismissal.
The Director of National Intelligence invoked states secrets in
2009 in reaction to both the Jewel and Schubert suits, the
government seeking dismissal on the basis of possible disclosure
of "highly sensitive intelligence sources and methods." The
district court dismissed both cases on the ground that both sets
of plaintiffs failed to sufficiently allege a personal injury.
The Ninth Circuit, however, reversed and remanded both cases in
2011 with instructions the court revisit the government's
assertion that the state secrets privilege bars litigation.
"Accordingly, the DNI and NSA have renewed the Government's
privilege assertion and again demonstrate why the disclosure of
sensitive intelligence sources and methods at issue in this case
and in Jewel reasonably could be expected to cause exceptionally
grave harm to national security and why, as a result, both actions
should be dismissed," the Government's motion stated. "The very
purpose of these cases is to put at issue whether the NSA
undertook certain alleged activities under presidential
authorization after 9/11, and whether those activities continue
today. At every stage, from standing to the merits, highly
classified and properly privileged intelligence sources and
methods are at risk of disclosure. The law is clear, however,
that where litigation risks or requires the disclosure of
information that reasonably could be expected to harm national
security, dismissal is required."
The NSA further explained that FISA does not waive the
government's privilege assertions, as Schubert alleges.
"The FISA procedures relied upon by plaintiffs are directed at a
different circumstance -- the use of surveillance evidence in a
proceeding against an 'aggrieved person' -- and do not permit a
person merely alleging he or she was subject to surveillance to
seek discovery into whether surveillance has occurred," the
Government said. "Before reaching the state secrets privilege
question, the court should narrow the claims for which
consideration of the privilege assertion would be necessary by
dismissing plaintiffs' statutory FISA claim against the United
States and official capacity defendants on the ground that the
statutory cause of action at issue does not waive sovereign
immunity."
The Government's motion for dismissal will be heard by U.S.
District Judge Jeffrey S. White in San Francisco on December 14,
2012.
A copy of the Government Defendants' Notice of Motion and Third
Motion to Dismiss and for Summary Judgment in Schubert, et al. v.
Obama, et al., Case No. 07-cv-00693 (N.D. Calif.), is available at
http://is.gd/RPR2ju
The Government Defendants are represented by:
Stuart F. Delery, Esq.
Acting Assistant Attorney General
Joseph H. Hunt, Esq.
Director, Federal Programs Branch
Vincent M. Garvey, Esq.
Deputy Branch Director
Anthony J. Coppolino, Esq.
Special Litigation Counsel
Marcia Berman, Esq.
Senior Trial Counsel
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW, Rm. 6102
Washington, D.C. 20001
Telephone: (202) 514-4782
E-mail: tony.coppolino@usdoj.gov
WHOLE FOODS: Recalls Mislabeled Soup; Undeclared Allergen Cited
---------------------------------------------------------------
Whole Foods Market is recalling soup sold in all stores in six
states due to mislabeling. The Whole Foods Market Kitchens soup,
labeled as Roasted Garlic and Eggplant Soup, was in fact Lobster
Bisque, which poses the risk of serious or life-threatening
allergic reaction if consumed by customers with a shellfish or
milk allergy.
The soup was sold in 24 oz containers from Whole Foods Market
stores in Massachusetts, Rhode Island, Maine, Connecticut, New
York and New Jersey, between September 29 and October 2, 2012.
The label includes a sell-by date of October 4, 2012.
A picture of the recalled products' label is available at:
http://www.fda.gov/Safety/Recalls/ucm322325.htm
Signage is posted in affected Whole Foods Market stores to notify
customers of this recall, and all affected product has been
removed from shelves.
Consumers who have purchased this product from Whole Foods Market
may return it to the store for a full refund. Consumers with
questions should contact their local store or call 617-492-5500
between the hours of 9:00 a.m. and 5:00 p.m. Eastern Standard
Time.
WHOLE FOODS: Recalls Ricotta Salata Due Possible Health Risk
------------------------------------------------------------
Whole Foods Market announces that it is recalling ricotta salata
sold in 21 states and Washington, D.C. that came from its supplier
Forever Cheese Inc. of Long Island City, New York. Forever Cheese
recalled this cheese product because it may be contaminated with
Listeria monocytogenes. Listeria monocytogenes is an organism
which can cause serious and sometimes fatal infections in young
children, frail or elderly people, and others with weakened immune
systems. Although healthy individuals may suffer only short-term
symptoms such as high fever, severe headache, stiffness, nausea,
abdominal pain and diarrhea, Listeria infection can cause
miscarriages and stillbirths among pregnant women.
The recalled Ricotta Salata Frescolina brand cheese was cut into
wedges, packaged in clear plastic wrap and sold with a Whole Foods
Market scale label using PLU 293427. All "sell by" dates through
October 2 are affected. Fourteen illnesses have been reported
which may be associated with the Frescolina recall.
UPDATE: (October 2, 2012) In the four stores that sold it in
California and Arizona, the recalled cheese was also sold with a
Whole Foods Market scale label that read "Mitica Ricotta Salada,"
and with Whole Foods Market scale labels with PLU 294413. All
"sell by" dates through October 2 are affected.
Whole Foods Market stores in the following states are affected by
this recall:
1. Alabama (1 store)
2. Arizona (2 stores)
3. California (2 stores)
4. Colorado (2 stores)
5. Florida (5 stores)
6. Georgia (4 stores)
7. Kansas (1 store)
8. Kentucky (1 store)
9. Maryland (6 stores)
10. North Carolina (7 stores)
11. New Jersey (2 stores)
12. New Mexico (2 stores)
13. New York (2 stores)
14. Ohio (2 stores)
15. Oregon (6 stores)
16. Pennsylvania (5 stores)
17. South Carolina (1 store)
18. Tennessee (3 stores)
19. Utah (1 store)
20. Virginia (6 stores)
21. Washington (6 stores)
22. Washington, D.C. (3 stores)
Signage is posted in Whole Foods Market stores to notify customers
of this recall. Customers who have purchased this product from
Whole Foods Market may return it to the store for a full refund,
and call with questions 512-542-0060 Monday through Friday, 8:00
a.m. to 5:00 p.m. Central Standard Time.
WILLIS GROUP: Appeal in Contingent Compensation Suit Pending
------------------------------------------------------------
An appeal from a final order approving Willis Group Holdings
Public Limited Company's settlement of a class action lawsuit over
contingent compensation agreements remains pending, according to
the Company's August 9, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
Since August 2004, the Company and its subsidiary Hills Rogal &
Hobbs Company (along with various other brokers and insurers) have
been named as defendants in purported class actions in various
courts across the United States. All of these actions have been
consolidated into a single action in the U.S. District Court for
the District of New Jersey ('MDL'). These actions allege that the
brokers breached their duties to their clients by entering into
contingent compensation agreements with either no disclosure or
limited disclosure to clients and participated in other improper
activities. Plaintiffs seek monetary damages, including punitive
damages, and certain equitable relief. In May 2011, the majority
of defendants, including the Company and HRH, entered into a
written settlement agreement with plaintiffs. On June 28, 2011,
the Judge entered an Order granting preliminary approval to the
settlement agreement. A total of 84 members of the class have
opted out of the settlement. The Court approved the settlement on
March 30, 2012. The amount of the settlement paid by the Company
and HRH is immaterial and was previously reserved.
On April 12, 2012, one member of the settlement class filed an
appeal to the United States Court of Appeals for the Third Circuit
from the District Court's Final Order Approving Settlement. The
briefing schedule for this appeal has not yet been set.
Additional actions could be brought in the future by individual
policyholders. The Company disputes the allegations in all of
these lawsuits and has been and intends to continue to defend
itself vigorously against these actions. The outcomes of these
lawsuits, however, including any losses or other payments that may
occur as a result, cannot be predicted at this time.
Willis Group Holdings Public Limited Company --
http://www.willis.com/-- provides a range of insurance brokerage,
reinsurance, and risk management consulting services to its
clients worldwide. The Company offers various insurance brokerage
services, including property damage, offshore construction,
liability, and control of well and pollution insurance to the
energy industry; and marine insurance and reinsurance brokerage
services consisting of hull, cargo, and general marine
liabilities. The Company was founded in 1828 and is headquartered
in London, the United Kingdom.
WILLIS GROUP: Continues to Defend Stanford-Related Class Suits
--------------------------------------------------------------
Willis Group Holdings Public Limited Company continues to defend
lawsuits relating to the collapse of The Stanford Financial Group,
according to the Company's August 9, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
The Company has been named as a defendant in six similar lawsuits
relating to the collapse of The Stanford Financial Group
('Stanford'), for which Willis of Colorado, Inc. acted as broker
of record on certain lines of insurance. The complaints in these
actions generally allege that the defendants actively and
materially aided Stanford's alleged fraud by providing Stanford
with certain letters regarding coverage that they knew would be
used to help retain or attract actual or prospective Stanford
client investors. The complaints further allege that these
letters, which contain statements about Stanford and the insurance
policies that the defendants placed for Stanford, contained
untruths and omitted material facts and were drafted in this
manner to help Stanford promote and sell its allegedly fraudulent
certificates of deposit.
The six actions are:
(1) Troice, et al. v. Willis of Colorado, Inc., et al., C.A.
No. 3:09-CV-01274-N, was filed on July 2, 2009, in the
U.S. District Court for the Northern District of Texas
against Willis Group Holdings plc, Willis of Colorado,
Inc. and a Willis associate, among others. On April 1,
2011, plaintiffs filed the operative Third Amended Class
Action Complaint individually and on behalf of a putative,
worldwide class of Stanford investors, adding Willis
Limited as a defendant and alleging claims under Texas
statutory and common law and seeking damages in excess of
$1 billion, punitive damages and costs. On May 2, 2011,
the defendants filed motions to dismiss the Third Amended
Class Action Complaint, arguing, inter alia, that the
plaintiffs' claims are precluded by the Securities
Litigation Uniform Standards Act of 1998 ('SLUSA').
(2) Ranni v. Willis of Colorado, Inc., et al., C.A. No.
09-22085, was filed on July 17, 2009, against Willis Group
Holdings plc and Willis of Colorado, Inc. in the U.S.
District Court for the Southern District of Florida. The
complaint was filed on behalf of a putative class of
Venezuelan and other South American Stanford investors and
alleges claims under Section 10(b) of the Securities
Exchange Act of 1934 (and Rule 10b-5 thereunder) and
Florida statutory and common law and seeks damages in an
amount to be determined at trial. On October 6, 2009,
Ranni was transferred, for consolidation or coordination
with other Stanford-related actions (including Troice), to
the Northern District of Texas by the U.S. Judicial Panel
on Multidistrict Litigation (the 'JPML'). The defendants
have not yet responded to the complaint in Ranni.
(3) Canabal, et al. v. Willis of Colorado, Inc., et al., C.A.
No. 3:09-CV-01474-D, was filed on August 6, 2009, against
Willis Group Holdings plc, Willis of Colorado, Inc. and
the same Willis associate named as a defendant in Troice,
among others, also in the Northern District of Texas. The
complaint was filed individually and on behalf of a
putative class of Venezuelan Stanford investors, alleged
claims under Texas statutory and common law and sought
damages in excess of $1 billion, punitive damages,
attorneys' fees and costs. On December 18, 2009, the
parties in Troice and Canabal stipulated to the
consolidation of those actions (under the Troice civil
action number), and, on December 31, 2009, the plaintiffs
in Canabal filed a notice of dismissal, dismissing the
action without prejudice.
(4) Rupert, et al. v. Winter, et al., Case No. 2009C115137,
was filed on September 14, 2009, on behalf of 97 Stanford
investors against Willis Group Holdings plc, Willis of
Colorado, Inc. and the same Willis associate, among
others, in Texas state court (Bexar County). The
complaint alleges claims under the Securities Act of 1933,
Texas and Colorado statutory law and Texas common law and
seeks special, consequential and treble damages of more
than $300 million, attorneys' fees and costs. On
October 20, 2009, certain defendants, including Willis of
Colorado, Inc., (i) removed Rupert to the U.S. District
Court for the Western District of Texas, (ii) notified the
JPML of the pendency of this related action and (iii)
moved to stay the action pending a determination by the
JPML as to whether it should be transferred to the
Northern District of Texas for consolidation or
coordination with the other Stanford-related actions. On
April 1, 2010, the JPML issued a final transfer order for
the transfer of Rupert to the Northern District of Texas.
On January 24, 2012, the Court remanded Rupert to Texas
State Court (Bexar County), but stayed these cases until
further order of the court. The defendants have not yet
responded to the complaint in Rupert.
(5) Casanova, et al. v. Willis of Colorado, Inc., et al., C.A.
No. 3:10-CV-01862-O, was filed on September 16, 2010, on
behalf of seven Stanford investors against Willis Group
Holdings plc, Willis Limited, Willis of Colorado, Inc. and
the same Willis associate, among others, also in the
Northern District of Texas. The complaint alleges claims
under Texas statutory and common law and seeks actual
damages in excess of $5 million, punitive damages,
attorneys' fees and costs. The defendants have not yet
responded to the complaint in Casanova.
(6) Rishmague, et ano. v. Winter, et al., Case No.
2011CI02585, was filed on March 11, 2011, on behalf of two
Stanford investors, individually and as representatives of
certain trusts, against Willis Group Holdings plc, Willis
of Colorado, Inc., Willis of Texas, Inc. and the same
Willis associate, among others, in Texas state court
(Bexar County). The complaint alleges claims under Texas
and Colorado statutory law and Texas common law and seeks
special, consequential and treble damages of more than $37
million and attorneys' fees and costs. On April 11, 2011,
certain defendants, including Willis of Colorado, Inc.,
(i) removed Rishmague to the Western District of Texas,
(ii) notified the JPML of the pendency of this related
action and (iii) moved to stay the action pending a
determination by the JPML as to whether it should be
transferred to the Northern District of Texas for
consolidation or coordination with the other Stanford-
related actions . On August 8, 2011, the JPML issued a
final transfer order for the transfer of Rishmague to the
Northern District of Texas, where it is currently pending.
The defendants have not yet responded to the complaint in
Rishmague.
On May 10, 2011, the court presiding over the Stanford-related
actions in the Northern District of Texas entered an order
providing that it would consider the applicability of SLUSA to the
Stanford-related actions based on the decision in a separate
Stanford action not involving a Willis entity, Roland v. Green,
Civil Action No. 3:10-CV-0224-N. On August 31, 2011, the court
issued its decision in Roland, dismissing that action with
prejudice under SLUSA.
On October 27, 2011, the court in Troice entered an order (i)
dismissing with prejudice those claims asserted in the Third
Amended Class Action Complaint on a class basis on the grounds set
forth in the Roland decision and (ii) dismissing without prejudice
those claims asserted the Third Amended Class Action Complaint on
an individual basis. Also on October 27, 2011, the court entered a
final judgment in the action.
On October 28, 2011, the plaintiffs in Troice filed a notice of
appeal to the U.S. Court of Appeals for the Fifth Circuit.
Subsequently, Troice, Roland and a third action captioned Troice,
et al. v. Proskauer Rose LLP, Civil Action No. 3:09-CV-01600-N,
which also was dismissed on the grounds set forth in the Roland
decision and on appeal to the U.S. Court of Appeals for the Fifth
Circuit, were consolidated for purposes of briefing and oral
argument. Following the completion of briefing and oral argument,
on March 19, 2012, the Fifth Circuit reversed and remanded the
actions. On April 2, 2012, the defendants-appellees filed
petitions for rehearing en banc. On April 19, 2012, the petitions
for rehearing en banc were denied. On July 18, 2012, defendants-
appellees filed a petition for writ of certiorari with the United
States Supreme Court regarding the Fifth Circuit's reversal in
Troice.
Additional actions could be brought in the future by other
investors in certificates of deposit issued by Stanford and its
affiliates. The Company disputes these allegations and intends to
defend itself vigorously against these actions. The outcomes of
these actions, however, including any losses or other payments
that may occur as a result, cannot be predicted at this time.
Willis Group Holdings Public Limited Company --
http://www.willis.com/-- provides a range of insurance brokerage,
reinsurance, and risk management consulting services to its
clients worldwide. The Company offers various insurance brokerage
services, including property damage, offshore construction,
liability, and control of well and pollution insurance to the
energy industry; and marine insurance and reinsurance brokerage
services consisting of hull, cargo, and general marine
liabilities. The Company was founded in 1828 and is headquartered
in London, the United Kingdom.
XAN CONFECTIONS: Recalls Peanut Butter Chocolate Products
---------------------------------------------------------
Xan Confections is voluntarily recalling 13 of its gourmet peanut
butter chocolate products because they have the potential to be
contaminated with Salmonella, an organism that can cause serious
and sometimes fatal infections in young children, frail or elderly
people, and others with weakened immune systems. Healthy persons
infected with Salmonella often experience fever, diarrhea (which
may be bloody), nausea, vomiting and abdominal pain. In rare
circumstances, infection with Salmonella can result in the
organism getting into the bloodstream and producing more severe
illnesses such as arterial infections (i.e., infected aneurysms),
endocarditis and arthritis.
The voluntary recall was issued upon learning that Sunland, Inc.,
the peanut butter supplier used in the production of Xan
Confections, has recalled its entire peanut butter product from
May 1, 2012, through September 24, 2012. For more information on
the Sunland recall, visit Sunland's Web site:
http://www.sunlandinc.com/788/html/pdfs/SunlandRecall.pdf.
The recall affected Xan Confections products distributed from
May 28, 2012, through September 28, 2012, at retail locations in
California, Arizona, Nevada, Oregon, Washington, Texas, Alabama,
Louisiana and Nova Scotia, Canada, as well as through online
distribution.
"Upon learning of Sunland's voluntary recall of peanut butter
products that our company uses, we immediately notified our
customers," said Susan Johnson, CEO, Xan Confections. "We are
committed to ensuring our products meet quality standards while
ensuring the safety of consumers."
None of the Xan Confections truffles (see following list with
product dates) with the affected peanut butter have been
associated with any reported illness to date. All Xan Confections
products have passed internal quality control tests and
procedures. Used by dates are located on the back of the retail
packages and on the outside of wholesale bulk boxes. Affected
dates are listed below.
The following products have been voluntarily recalled:
Affected Products UPC Best By Date(s)
----------------- --------------- ---------------
Bulk:
093 Milk Mini BigMouth 8-15744-01093-8 Oct. 20, 2012;
Nov. 03, 2012;
Nov. 25, 2012
094 Dark Mini BigMouth 8-15744-01094-5 Oct. 20, 2012;
Nov. 03, 2012;
Nov. 24, 2012
296 Peanut Butter LadybuG 8-95784-00296-4 Nov. 18, 2012
090 Peanut Butter Crunch 8-15744-01090-7 Nov. 18, 2012
LadybuG
115 Mini Peanut Butter 8-15744-01115-7 Nov. 18, 2012
Crunch LadybuG
096 Peanut Butter Jewel 8-15744-01096-9 Nov. 25, 2012
233 Milk BigMouth 8-95784-00233-9 Nov. 10, 2012;
Dec. 14, 2012;
Jan. 04, 2013
232 Dark BigMouth 8-95784-00232-2 Nov. 10, 2012;
Dec. 14, 2012;
Jan. 06, 2013
273 Dark Peanut Butter Cup 8-95784-00273-5 Dec. 29, 2012;
Jan. 26, 2013
254 Milk Peanut Butter Cup 8-95784-00254-4 Jan. 17, 2013
Packaged:
284 4-piece Mini BigMouth 8-95784-00284-1 Oct. 20, 2012;
Nov. 03, 2012;
Nov. 25, 2012
002 6-piece Mini BigMouth 8-15744-01002-0 Oct. 20, 2012;
Nov. 03, 2012;
Nov. 24, 2012
079 4-piece Peanut Butter 8-15744-01079-2 Nov. 18, 2012
Customers who have purchased any of the Xan Confections products
referenced above may return them to the place of purchase for full
refund or destroy them. Customers who purchased the affected
chocolates online can contact Xan Confections with any questions
they may have through the Web site: http://www.xanconfections.com/
or at 1-949-833-2928 between 8:00 a.m. - 5:00 p.m. Pacific
Standard Time, Monday-Friday. If you have uneaten chocolates,
please contact Xan Confections for instructions.
Asbestos Litigation
ASBESTOS UPDATE: Ohio Ct. Denies Writ of Mandamus Action v. ICO
---------------------------------------------------------------
Relator Gerald R. Quincel commenced an action for a writ of
mandamus that orders Industrial Commission of Ohio to vacate its
order denying his October 15, 2009 motion for an R.C. 4123.57(D)
change of occupation award, and to enter an order awarding him the
initial 30 weeks of compensation under the statute. The action
stemmed from applications for workers' compensation benefits and
for permanent total disability compensation in relation to the
relator's more than 30 years of employment with respondent E.I.
Dupont De Nemours and Company as asbestos insulator.
In a decision dated Sept. 25, 2012, Magistrate Kenneth A. Macke
decided that the Court of Appeals of Ohio, Tenth District,
Franklin County, deny the action pointing out that implicit in the
language of R.C. 4123.57(D) is that the change of occupation or
discontinuance of employment must be causally related to the
medical advisement that the employee change his occupation in
order to decrease substantially further exposure to a toxic dust.
In this case, the Court of Appeals found that there is no claim
that relator's discontinuance of his employment in 1993 was
causally related to any medical advisement that relator change his
occupation in order to decrease substantially further exposure to
toxic dust.
The case is State of Ohio ex rel. Gerald R. Quincel, Relator, v.
Industrial Commission of Ohio and [E.I. DuPont De Nemours and
Company] Circleville Plant, Respondents, No. 11AP-594 (Ohio). A
copy of the Sept. 25 Decision is available at http://is.gd/umC1eB
from Leagle.com.
ASBESTOS UPDATE: Insurers' Doc Request v. Porter Hayden Denied
--------------------------------------------------------------
Judge Catherine C. Blake of the U.S. District Court for the
District of Maryland denied the renewed motion of insurers
National Union Fire Insurance Company of Pittsburgh, PA, et al.,
to compel Porter Hayden Company to produce documents, including
communications between Porter Hayden, the representative of
asbestos claimants in its bankruptcy cases, and the future
claimants' representatives regarding the reorganization plan that
the three parties developed to settle the asbestos claims.
The insurers allege Porter Hayden colluded with the asbestos
claimants in violation of the company's agreements with the
insurers.
According to Judge Blake, the documents sought by the insurers
were related to a common legal interest and, thus, that they
remain privileged. Judge Blake said that the parties held a
reasonable expectation that documents shared amongst them would
remain confidential, as shown by their joint confidentiality
agreement.
The case is NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
PA, et al v. PORTER HAYDEN COMPANY, Civil No. CCB-03-3408
(D. Md.). A copy of Judge Blake's Decision dated September 24,
2012, is available at http://is.gd/ReFT5jfrom Leagle.com.
ASBESTOS UPDATE: NY Court Denies Elliot's Summary Judgment Plea
---------------------------------------------------------------
Judge Sherry Klein Heitler of the Supreme Court, New York County,
denied on Sept. 24, 2012, a motion filed by defendant Elliot
Company seeking for summary judgment dismissing an asbestos-
related personal injury action filed by Walter Guthrie, a former
welder and machinists' assistant at the Brooklyn Navy Shipyard
from 1962 to 1968. Judge Heitler held that although Elliot made a
prima facie showing of its entitlement to summary judgment because
Mr. Guthrie did not specifically identify an Elliot-branded
product as a source of his asbestos exposure, ship records
produced by plaintiffs raise a genuine issue of fact sufficient to
overcome Elliot's prima facie case.
The case is WALTER GUTHRIE and LONA GUTHRIE, Plaintiffs, v. A.O.
SMITH WATER PRODUCTS, et al., Defendants, Docket No. 190114/11,
Motion Seq. No. 009 (N.Y.). A copy of Judge Heitler's Decision is
available at http://is.gd/Q6DZG7from Leagle.com.
ASBESTOS UPDATE: NY Court Denies Karnak's Summary Judgment Bid
--------------------------------------------------------------
Karnak Corporation's motion for summary judgment seeking dismissal
of an asbestos-related personal injury action was denied by Judge
Sherry Klein Heitler of the Supreme Court, New York County, after
the judge determined there is sufficient evidence from which a
reasonable trier of fact could conclude that John P. Byrners,
decedent, was exposed to asbestos by reach of Karnak rooking
cement residually adhering to his skin and clothing, and flaking
off when dry. The case is JOHN T. BYRNES, as Executor for the
Estate of JOHN P. BYRNES, Plaintiff, v. A.C.&S. INC., et al.
Defendants, Docket No. 119504/02, Motion Seq. 001 (N.Y.). A copy
of Judge Heitler's Decision dated September 24, 2012, is available
at http://is.gd/gnlQPSfrom Leagle.com.
ASBESTOS UPDATE: NY Court Rejects Ford's Bid to Transfer Suit
-------------------------------------------------------------
Judge Sherry Klein Heitler of the Supreme Court, New York County,
denied on Sept. 24, 2012, the motion of Ford Motor Company seeking
dismissal of an asbestos-related personal injury action on the
ground of forum non conveniens asserting that plaintiff Wladimir
Kiselovski has never resided in New York County and none of the
alleged asbestos exposure took place in the same county. Ford
suggests that Monroe County is the more suitable forum of the
action since Mr. Kiselovski worked in the Rochester area.
In her decision, Judge Heitler said Ford's motion fails because it
has the burden of showing relevant private or public interest
factors that militate against retention of the action in New York
and Ford has not shown that either it or the plaintiff will suffer
any burden from having to litigate in New York. The totality of
circumstances, and in particular the fact that Mr. Kiselovski's
exposure occurred in New York State, militates against dismissal
in favor of an alternative forum in Nevada, Judge Heitler ruled.
The case is WLADIMIR KISELOVSKI and SUSAN KISELOVSKI, Plaintiffs,
v. A.O. SMITH WATER PRODUCTS Co., et al, Defendants, Docket
Number: 115520/05, Motion Seq. No. 002 (N.Y.). A copy of Judge
Heitler's Decision is available at http://is.gd/DXZAFIfrom
Leagle.com.
ASBESTOS UPDATE: Mt. Greylock School Plans for Abatement Projects
-----------------------------------------------------------------
Meghan Foley of The North Adams Transcript reports that the Mount
Greylock Regional School District in Williamstown has begun
planning for three projects to remove asbestos from certain areas
of the high school.
Carrie Greene, chairwoman of the Building Subcommittee, said
Friday, Sept. 28 that the areas being targeted for asbestos
removal have been identified through inspections and they're
considered a priority.
"If we take this building down eventually, the state doesn't
reimburse the removal of any hazardous waste materials. It's
something school's expected to maintain," she said.
The three projects, which are estimated to total about $20,000,
are still in the planning stages with the next step being the
design phase, Facilities Supervisor Jesse Wirtes, who is a member
of the Building Subcommittee, said Thursday, Sept. 27.
"We can have this ready to go by the end of the school year," he
said. "We could fit a couple of these projects into the Christmas
and February vacations, but it's best to do them as a whole."
The first project, which costs roughly $5,702, involves the
removal of asbestos tile from a classroom in the south wing of the
high school. The second project, which costs about $7,354,
includes the removal of asbestos mud fittings and the re-
insulation of piping in some classrooms, storage rooms, the
auditorium and the boiler room. The third project, which is
approximately $19,961, focuses on the removal of asbestos mud
fittings, non-asbestos pipe insulation and debris, and the re-
insulation of piping in the gymnasium.
Rose Ellis, superintendent of Williamstown and Lanesborough Public
Schools, said Thursday night that the three projects weren't built
into the school district's fiscal 2013 budget.
"We have a building improvement line item, and that is what we can
access first," she said.
She added that with the projects being planned for the summer,
it's possible the cost could be split over fiscal 2013 and 2014.
ASBESTOS UPDATE: CSULB Applies "Manage In Place" on 50 Buildings
----------------------------------------------------------------
Rabiya Hussain for The Daily 49er News reports that nearly 50 of
Cal State University - Long Beach's (CSULB) buildings contain the
cancer-causing mineral, asbestos, but the environmental health and
safety department (EHS) said students and faculty should not be
concerned.
When it comes to dealing with the asbestos on campus, the EHS
often resorts to a practice known as "manage in place."
"You have actually a far lower chance of exposing people to
asbestos by leaving it alone and keeping it in good shape," David
Beadle, director of the EHS and certified asbestos consultant,
said.
The Residential Learning College and University Student Union are
included among the nearly 50 buildings that are fitted with
asbestos containing materials (ACM), according to an asbestos
survey performed by the department.
But that number is not unusual, Beadle said, mainly due to the age
of the buildings.
"At the time they were making some of our buildings, which was
around the 1940s and 1950s, the use of asbestos was ubiquitous,"
Beadle said. "It was thought to be a very good building material
before they found out it had health issues."
Asbestos is a naturally occurring mineral composed of long thin
fibers that can become airborne when disturbed. Inhaling asbestos
can lead to serious health conditions, such as lung cancer,
asbestosis and mesothelioma, according to the National Library of
Medicine.
In the buildings around campus, white asbestos, also known as
Chrysotile, can be found in some insulation materials, floor
tiles, glues and plaster used to fill in the seams of drywall,
Beadle said.
Beadle said a variety of practices are used to control asbestos
around campus. Some of these methods include wrapping pipe
insulation in a canvas jacket, sealing floor tiles annually with a
coat of wax and covering wall plaster with "6, 8, 10, 12 layers"
of latex or oil based paint, Beadle said.
"When it is maintained well . . . [asbestos] can stay in place
without degradation for decades until you decide to demolish the
building," he said.
Furthermore, the ACM used on campus is non-friable, meaning it
cannot be reduced to smaller pieces without great effort, Beadle
said, so it is not a danger to students or faculty who occupy the
buildings.
Heidi Burkey, coordinator of the health resource center, said the
danger of developing negative health risks from exposure to
asbestos fibers is usually greater for people who work with it.
"When there are health problems they are usually due to
occupational exposures, like mechanics or contractors," Burkey
said. "People who are in buildings where asbestos is used in the
building materials are normally not affected."
However, the spread of asbestos fibers is still a concern to the
EHS. That reason, facilities maintenance employees, custodians,
and construction inspectors are all given 2-hour long asbestos
awareness training.
"We encourage them to be cautious," Beadle said. "Like, don't put
a ladder against the pipe and crush the insulation [when changing
light bulbs.] That's the message we're sending."
Employees are also trained to alert EHS when they suspect damaged
materials contain asbestos.
While "manage in place" is EHS's preferred practice, the EHS hires
third party contractors to remove ACM when necessary or possible.
"'Manage in place' is a primary management technique," Beadle
said. "So we keep it there but we keep it in good shape, unless
we are going to do a remodel or renovation and then at that time
we would take it out."
ASBESTOS UPDATE: Deposition in PAL Center Class Action Starts
-------------------------------------------------------------
Daniel Rubin of The Inquirer relates that Officer Paul Zenak's
trouble with the brass started a year ago, he says, when he was
coordinating the Police Athletic League (PAL) of Philadelphia's
center in Wissinoming.
The basement was undergoing renovation, and the officer didn't
like the look of some mold on the pipes that run through the
homework room. It was worse than that, a New Jersey contractor
named Joe Bailey told him -- there was asbestos.
Zenak was already wary of the stuff. His uncle Bill, a
Philadelphia Gas Works employee, had died of mesothelioma, a
cancer that comes from inhaling asbestos fibers, in 2008. That
was the year the officer was assigned to the youth group center in
the Wissinoming United Methodist Church, and Zenak couldn't help
but notice the sticker the city Health Department had slapped on
the boiler of his new workplace warning of an asbestos hazard.
So in September 2011, when the contractor said there was exposed
asbestos on the 60 feet of pipe that hung in the room where
neighborhood kids studied and played on the computer, Zenak
reacted fast.
He closed off the area and notified the church and his sergeant.
The sergeant, he says, assured him there was no problem: The
contractor was licensed by the city to work with the carcinogen.
Two weeks later, when Zenak returned to the basement, he found the
place a mess -- dust piled on the floor and still inside a Shop-
Vac that had been left uncovered.
Zenak called his sergeant to complain. And that day he received
the first reprimand of a 21-year career that has included
recognition for being his district's officer of the year. He kept
pushing, asking for an air test and demanding to see the license
of the contractor hired to perform more than $25,000 worth of
renovations to the church. The officer asked why PAL, not the
church, was paying for the work. Another reprimand followed.
In May, Zenak filed a whistle-blower suit in Common Pleas Court
against PAL, the church, the contractor, and the city, which
partially funds the athletic league.
Rubin poked around the case at the time, and a PAL lawyer told him
there was no asbestos at the site -- that the city had gone in to
perform tests, and that the league had hired its own licensed firm
to test the place just to be safe.
But the matter isn't going away. During depositions, Zenak's
lawyer was handed a $955 invoice the contractor had sent PAL for
asbestos removal at the Wissinoming center. He also sent a bill
for $640 worth of asbestos work at the PAL center in Oxford
Circle.
Bailey told the Philadelphia Daily News in June he was mistaken in
thinking what he'd removed was asbestos. Jeff Moran, the city
Health Department spokesman, says Philadelphia has never certified
Bailey to handle asbestos.
Zenak's lawyer, Aaron Freiwald, now wants the health of every
child who has used either center since 2008 to be monitored. On
Thursday, Sept. 27, he filed a class-action suit against all of
the parties, adding the Glading Memorial Presbyterian Church on
East Cheltenham Avenue, where the Oxford Circle PAL meets.
Zenak has not been back on the job since filing suit. The 43-
year-old father of four says he suffers from asthma like symptoms
as well as anxiety about returning to a hostile work environment.
I asked what he wanted out of the suit. "I want to make sure
everything, if it wasn't done right, then it gets done right," he
said. "And personally, at this point, I'm pretty [angry]. Every
day that goes by, all I do is think about this and what they tried
to do to my career."
There is still a question of whether the contractor actually
handled asbestos. He is scheduled to be deposed next week.
Who knows how long this case will go on? In the meantime, the
idea of carcinogens hanging over the heads of those who find
safety in the motto "Cops Helping Kids Since 1947" can offer no
comfort to anyone.
ASBESTOS UPDATE: Democrat Elizabeth Warren Releases List of Cases
-----------------------------------------------------------------
The Boston Globe reports that Democratic challenger Elizabeth
Warren on Oct. 1, just before the debate, released some
information on her legal clients, though her campaign did not
indicate whether the list represented a complete accounting. The
Warren campaign emailed a list of cases she had been involved in,
saying they had been found in a search of various legal databases.
Warren then called on Republican US Senator Brown during the
debate to release his own list of clients. He said he had already
done so. Last week he verbally gave a partial list to the Globe.
Here is the list released by Warren.
Supreme Court of the United States
-- Travelers Indemnity Co. v. Bailey, 557 U.S. 137 (2009).
In this case, Elizabeth worked to protect a $500 million
settlement for victims of asbestos poisoning that another
insurance company sought to invalidate. The Boston Globe has
reported that most asbestos victims were on her side during the
case, and the Supreme Court ruled in favor of her position.
-- Rousey v. Jacoway, 544 U.S. 320 (2005). In this case,
Elizabeth represented the AARP in its effort to protect retirement
accounts from banks and other creditors who wanted to try to take
them away from people who have gone broke. The Supreme Court
ruled in favor of Elizabeth's position.
-- Till v. SCS Credit Corp., 541 U.S. 465 (2004). In this
case, Elizabeth represented the AARP to make sure that when people
go broke, they have a better chance of hanging on to their car
when the bank wants to take it away. The Supreme Court ruled in
favor of Elizabeth's position.
-- FCC v. NextWave Personal Communications, 537 U.S. 293
(2003); see also In re FCC, No. 99-5063 (petition for rehearing
and petition for rehearing en banc, 2d Cir. 2000). In this case,
Elizabeth came in on the side of a company that was trying to
reorganize so it could meet its obligations and pay pension fund
investors and hundreds of small businesses that depended on it.
The Supreme Court ruled in favor of Elizabeth's position.
-- Bank of America Nat'l Trust Assn. v. 203 North LaSalle
Street Partnership, 526 U.S. 434 (1999). In this case, Elizabeth
fought to give small business owners a chance to hang on to their
businesses when they're in financial trouble and the bank tries to
take the business away from them. The Supreme Court ruled against
Elizabeth's position.
-- In re Chateaugay, No. 95-63 (1995). In this case,
Elizabeth asked the Supreme Court to reverse a lower court's
ruling that limited the ability of future employees, retirees, and
victims to receive any compensation at all from bankrupt
companies. The Supreme Court declined to hear the case.
United States Courts of Appeals
-- Cadle Co. v. Schlichtmann, 267 F.3d 14 (1st Cir. 2001).
In this case, Elizabeth helped the counsel of record for a well-
known Massachusetts environmental lawyer trying to hold on to some
of his earnings after he went broke fighting companies that were
dumping toxic waste in Woburn. The First Circuit ruled against
the lawyer.
-- Falise v. American Tobacco Co., 229 F.3d 1135 (2d Cir.
2000). In this case, Elizabeth fought the tobacco companies to
get more money for asbestos victims. The Second Circuit dismissed
the appeal.
-- In re National Gypsum Co., 219 F.3d 478 (5th Cir. 2000),
cert. denied sub nom NGC Settlement Trust v. National Gypsum Co.,
121 S.Ct. 2238 (2001). In this case, Elizabeth argued that a
company had unfairly evaded paying asbestos victims. She sought
to ensure that those victims would be able to collect fair
compensation from the company. The Fifth Circuit ruled against
Elizabeth's position, and the Supreme Court declined to hear the
case.
-- In re Cajun Electric Power Cooperative, 150 F.3d 503 (5th
Cir. 1998), cert. denied sub nom Mabey v. Southwestern Electric
Power Co., 119 S.Ct. 2019 (1999). In this case, Elizabeth
represented a company that offered a plan to help save a bankrupt
rural power cooperative. The company also helped defray
litigation costs for some members of the cooperative. Elizabeth
sought to preserve the plan to save the company, and the Fifth
Circuit ruled in favor of Elizabeth's position.
United States Bankruptcy Court
-- In re Fairchild Aircraft Corp., 184 B.R. 910 (Bankr. W.D.
Tex. 1995), vacated 220 B.R. 909 (Bankr. W.D. Tex. 1998). This
was a tragic case, involving a plane crash that killed four
people. The NTSB and a jury found that the aircraft manufacturer
was not at fault. Elizabeth got involved to try to protect
hundreds of jobs at the company after new investors had saved it
from closing its doors and laying off its workers. In the end,
the company survived and 1,000 people had jobs because of it. The
bankruptcy court initially ruled against Elizabeth's position but
later vacated that decision.
-- In re P.A. Bergner & Co., 187 B.R. 964 (Bankr. E.D. Wis.
1995), aff'd in part and rev'd in part sub nom Matter of P.A.
Bergner & Co., 140 F.3d 1111 (7th Cir. 1998); see also In re P.A.
Bergner & Co., No. 95-1087 (E.D. Wisc., opened 1995). In this
case, Elizabeth fought to make sure that a well-known chain of
department stores could stay alive and pay its creditors.
Elizabeth succeeded, and the company continued to employ people
across its many stores.
-- Central and South West Corp. v. El Paso Electric Co., No.
95-1108 (Bankr. W.D. Tex., filed 1995); El Paso Electric Co. v.
Central and South West Corp., No. 95-1120 (Bankr. W.D. Tex., filed
1995); see also El Paso Electric Co. v. Central and South West
Corp., Nos. 95-708, -709 (W.D. Tex., filed 1995). This was a case
between two companies, one of which was bankrupt, and concerned a
failed merger between them. Elizabeth represented one of the
companies, and the parties eventually settled.
ASBESTOS UPDATE: SCT Case Defendants Jail Sentences Starts Nov. 16
------------------------------------------------------------------
The Chattanoogan.com reports that Federal Judge Curtis Collier, on
the sixth day of a sentencing hearing in an asbestos case, on
Monday, Oct. 1 handed Don Fillers a four-year prison term for his
part in what his own attorney described as the "horrible debacle"
on Watkins Street.
Foreman David Wood was given 20 months in prison and demolition
firm owner James Mathis 18 months in connection with an inadequate
abatement of asbestos that resulted in a major governmental
cleanup involving the EPA and others in 2005.
The defendants were given until Nov. 16 at 2 p.m. to self-report
to prison.
The judge also handed down fines and restitution in the case. The
restitution amount was set at $27,899.10 each, including against
the Watkins Street Project LLC.
Fillers, 64, was also assessed fines of $20,000, $2,220 and
$2,224. The corporation that he and his late brother, Gary
Fillers, set up to buy the old yarn plant, was fined $30,000,
$2,220 and $2,224.
Attorney Gary Humble had asked that no action be taken against the
corporation, saying it is insolvent and has a $300,000 mortgage it
can't pay. He said the property in Ridgedale "is like a meth
house. Who is ever going to pay to buy this property." He said
he expects it eventually "will go back to the bank."
Prosecutor Matthew Morrison of Knoxville had asked for
"significant periods of incarceration to send out the message that
this can't happen. People cannot just put jobs and profits over
human health."
He said the deterrent effect of the sentence was important because
he said inspectors are only able to go to about 25 percent of the
demolition sites where there is asbestos and others "are on the
honor system." The SCT site was discovered when inspector John
Schultz of the Chattanooga Hamilton County Air Pollution Control
Bureau happened by.
Attorney Leslie Cory said Don Fillers "has led a very good life.
It's obvious that many, many people looked up to Mr. Fillers as a
role model. This has been a horrible debacle, but he has done
everything in his power to rectify the damage."
Fillers told the court, "I'm sorry this has all happened. I would
never do anything to harm my family, my friends and my neighbors.
I just wish it hadn't happened."
Gary Fillers pleaded guilty early on and got a six-month home
confinement sentence. He died about six weeks ago.
Attorney Gene Skiles said Wood "would never, ever want to harm
anyone." He said if anyone faces long-range problems from
handling the SCT asbestos, it is Wood.
Mathis gave a long statement in which he declared he was innocent
of the charges. He said his demolition firm had been involved in
numerous projects around the community without such problems. He
said it was originally to be his role to hire an asbestos firm and
he recommended SCI. Then he said the Fillers brothers decided on
their own to go with a much-cheaper firm.
He said he pulled his firm off the site after a disagreement about
a fluid found in an old tank. He said he wanted to have it
tested, but the Fillers brothers said to just pour it out on the
ground.
A jury convicted the defendants on Jan. 27 of conspiracy and
criminal violations of the Clean Air Act, as well as obstruction
of justice in relation to salvage and demolition activities at the
plant.
Authorities said the "evidence proved that the defendants entered
into a year-long scheme in which the plant was illegally
demolished while still containing extensive amounts of asbestos.
Additionally, the defendants hired day laborers and paid them low
wages to improperly remove asbestos-containing materials without
following federal regulations that were intended to keep the
asbestos, a known carcinogen, from becoming airborne where it
could be inhaled."
"These sentences send a strong message that criminal violations of
environmental laws designed to protect human health from exposure
to hazardous substances, such as asbestos, will not be tolerated,"
said U.S. Attorney Bill Killian. "Those individuals who choose to
place profit over compliance with our nation's environmental laws
will be vigorously prosecuted and brought to justice."
"Exposure to asbestos can cause serious, even fatal, illnesses so
it must be removed safely and in accordance with the law," said
Maureen O'Mara, Special Agent in Charge of EPA's criminal
enforcement program in Tennessee. "The defendants in this case
not only lied to authorities and tried to cover up their actions,
but they also hired homeless and untrained workers to perform the
illegal asbestos removal activities, endangering both the
employees and the greater community. The sentences show that
those who break the law and put the public at risk to make illegal
profits will face serious consequences."
Attorney Flores said, "Mathis was looking at 14 years when he
hired me nine weeks before the sentencing hearing.
"Mathis maintains his innocence and looks forward to appeal and
post-conviction relief. We hope the Court will allow him to
remain on bond pending appeal."
ASBESTOS UPDATE: G.E. Company, 77 Others Face Meso Lawsuit
----------------------------------------------------------
Kyla Asbury of The West Virginia Record reports that a woman is
suing 78 companies she claims are responsible for her mesothelioma
diagnosis.
Iris Bowen was diagnosed with mesothelioma on July 19, according
to a complaint filed Aug. 30 in Kanawha Circuit Court.
Bowen claims she was exposed to asbestos materials during her
employment from 1949 until 1979, and was also exposed due to her
late husband's employment as a coal miner from 1945 until 1979.
The defendants are being sued based on theories of negligence,
contaminated buildings, breach of expressed/implied warranty,
strict liability, intentional tort, conspiracy, misrepresentation
and post-sale duty to warn, according to the suit.
Bowen claims she smoked one pack of cigarettes per week from 1937
until 1975, but has not smoked since then.
Certain defendants are also being sued as premises owners and as
Bowen's employers for deliberate intent/intentional tort,
according to the suit.
Bowen is seeking a jury trial to resolve all issues involved. She
is being represented by:
Victoria Antion -- vantion@motleyrice.com
Anne McGinness Kearse -- akearse@motleyrice.com
Scott A. McGee -- smcgee@motleyrice.com
John D. Hurst -- jhurst@motleyrice.com
J.D. McMullen -- jmcmullen@bpblaw.com
The case has been assigned to a visiting judge.
The 78 companies named as defendants are 3M Company; A.W.
Chesterton Company; Airtek, Inc.; AK Steel Corporation; Allied
Corporation; Aurora Pump Company; Borg-Warner Corporation;
Caterpillar Inc.; Certainteed Corporation; Cleaver-Brooks Company,
Inc.; Copes-Vulcan, Inc.; Crane Co.; Dravo Corporation; Eaton
Electrical, Inc.; Fairmont Supply Corporation; Flowserve FSD
Corporation; Flowserve US, Inc.; FMC Corporation; Ford Motor
Company; Foster Wheeler Energy Corporation; Gardner Denver, Inc.;
General Electric Company; Genuine Parts Company; George V.
Hamilton, Inc.; Georgia Pacific Corporation; Georgino Industrial
Supply (Pittsburgh), Inc.; Goulds Pumps; Grinnell LLC; Harvey
Hubbell, Inc.; Hercules, Inc.; Honeywell International; Howden
North America, Inc.; I.U. North America, Inc.; IMO Industries,
Inc.; Industrial Holdings Corporation; Ingersoll-Rand; ITT
Corporation; J. H. Fletcher & Co.; Joy Technologies, Inc.; Lewis-
Goetz and Company, Inc.; McJunkin Red Man Corporation; McNeil
Corporation; Metropolitan Life Insurance Company; Mine Safety
Appliances Company; Montgomery General Hospital, Inc.; Morgantown-
National Supply, Inc.; Nacco Materials Handling Group, Inc.; Nagle
Pumps, Inc.; Nitro Industrial Coverings, Inc.; Owens-Illinois,
Inc.; P&H Mining Equipment, Inc.; Petroleum Pipe and Supply
Company, Inc.; Pettibone/Traverse Lift, LLC; Phillips Corporation;
Pneumo Abex Corporation; Rapid-American Corporation; Riley Power,
Inc.; Ritter Technology LLC; Rockwell Automation, Inc.; Schneider
Electric USA, Inc.; State Electric Supply Company; Sterling Fluid
Systems (USA), LLC; Sunray Electric Supply Company; Tamko Roofing
Products; Tasco Insulations, Inc; the Goodyear Tire & Rubber, Co.;
UB West Virginia, Inc.; Union Carbide Chemical & Plastics Company;
Uniroyal, Inc.; United Conveyor Corporation; United Engineers &
Constructors and Washington Group International; Viacom, Inc.;
Vimasco Corporation; West Virginia Electric Supply Company;
Wilsonart International; Yale Materials Handling Corporation;
Yarway Corporation; and Zurn Industries, LLC.
Kanawha Circuit Court case number: 12-C-1755
ASBESTOS UPDATE: EPA Bills Buyer $30K for Old Paper Mill Board Up
-----------------------------------------------------------------
Rosemary Parker of MLive.com reports that the windows and doors of
the former Rock-Tenn paper mill site have been boarded over and a
large warning sign erected at the site's locked gate.
The work is intended to protect the public from exposure to
asbestos fibers that the U.S. Environmental Protection Agency
believes were released more than five years ago during an improper
salvage operation at the old industrial site.
The man who bought the plant from Rock-Tenn was accused in U.S.
District Court in Grand Rapids last month of violating the federal
Clean Air Act.
Michael Davis, Jr., was charged with failing to obtain a thorough
asbestos inspection, failing to have a representative trained in
asbestos regulation on-site, failing to wet asbestos-containing
material, failing to label asbestos-containing waste and failing
to properly dispose of asbestos-containing material.
The EPA alleges that starting in 2007 workers scrapped out metal
from pipes and other components in the powerhouse of the mill,
releasing asbestos-containing insulation.
"We tried to work with him" to remedy the problems caused by the
exposed asbestos, said Brian Kelly, on-scene coordinator for the
EPA. "Deadlines were not met," Kelly said, so the EPA moved ahead
with the work to frame in and board up the windows and doors.
The work cost $30,000, said Kelly, who added that the EPA will
pursue "cost recovery" from Davis.
Kelly said the site poses no public hazard as long as people
respect the signs and don't remove the boards to enter areas where
asbestos is present.
The property entered foreclosure on April 1, 2011 after Cogswell
Property LLC of Redford Township failed to pay overdue property
taxes on the site it bought from Rock-Tenn for $70,000 in
September, 2006.
Allegan County tried auctioning off the property, but no one
submitted a bid. The city of Otsego has since agreed to acquire
one 3.4-acre section of the site.
The plant is currently owned by Allegan County and is the subject
of an assessment to determine how much it would cost to clean up
the asbestos and any contaminated soil around the plant, work paid
for by a brownfield redevelopment grant, said Allegan County
development director Kevin Ricco.
Ricco said that assessment is not likely to be finished until the
end of the year.
Kelly would not speculate on how much the asbestos removal would
cost. "I don't want to guess. It's going to cost a lot," he
said.
No developers have yet expressed interest in the site, Ricco said.
ASBESTOS UPDATE: NVMC Operator Cited for 16 Workplace Violations
----------------------------------------------------------------
The Associated Press reports that the operators of New York's
Nassau Veterans Memorial Coliseum have been cited for 16
violations of workplace health and safety standards.
The coliseum is home to the New York Islanders hockey team.
The operators of the coliseum face $88,000 in fines from the U.S.
Labor Department's Occupational Safety and Health Administration.
OSHA says workers had been exposed to asbestos. The areas were
not accessible to the general public. It also found inadequately
lighted exit routes and other violations.
A statement from SMG, the company that manages the Coliseum, said
it would contest the citation. It said the asbestos issues have
been remediated.
The Nassau County attorney said Monday, Oct. 1, it would work with
SMG on resolving the OSHA issue.
The county is seeking proposals to replace the arena built in
1972.
ASBESTOS UPDATE: Quebec Still Imports Fibro In Brake Pads, Pipes
----------------------------------------------------------------
Marco Chown Oved for The Star.com reports that despite recent
announcements in Ottawa and Quebec that suggest asbestos will soon
be a thing of the past, products made of the cancer-causing
mineral are still being imported and used in Ontario today.
While the carcinogenic insulation is now being removed from
buildings across the province, two new products that contain
asbestos -- brake pads and cement pipes -- are being brought in.
Statistics Canada reports that $2.6 million worth of asbestos-
containing brake pads were imported into Canada last year. Of
that, more than half arrived in Ontario.
While Ottawa announced last week it would reverse its long-
standing position and declare asbestos a dangerous material, and
the new government in Quebec cancelled a loan that would have
revived the defunct asbestos mining industry, the problem in
Canada is far from over.
"Because we don't mine, because we don't use it in manufacturing,
we are under the false impression that it's gone," said Liberal
MPP Liz Sandals (Guelph), who introduced a private member's bill
earlier this year to ban brake pads containing asbestos in
Ontario.
Manufacturers claim that the asbestos in these products is safe
because it is tightly bound and the deadly fibers cannot be
inhaled by mechanics or workers. But anti-asbestos activists say
that when the brake pads wear down or when the pipes are cut,
untold millions of fibers are released and are putting workers'
health at risk.
Canada has long been an international pariah on the asbestos
issue. A major producer of the substance for decades -- even
after it was recognized as a carcinogen -- Canada has been
exporting it to countries like India and China under the pretext
that it is safe if handled properly.
Lax regulations in those countries often mean that we're
"exporting cancer," Sandals said. "But we haven't been conscious
of the fact that we still have health effects here at home."
Ironically, brake pads made overseas with Canadian asbestos can
make their way back here to be installed in cars. It's a loophole
in our laws that prevent manufacturers from using asbestos, but
allow products containing it to come in from abroad.
"There's no need and no reason to sell asbestos brake pads in
Ontario," said Rick Jamieson, CEO of ABS Friction, an asbestos-
free brake pad manufacturer in Guelph. "The price differential is
not that great."
When they break down after years of wear, mechanics have no way to
tell if the pads contain asbestos and could unknowingly expose
themselves to the toxic substance.
Paul Demers, director of the Occupational Cancer Research Centre,
says hundreds of new cases of cancer caused by asbestos exposure
are being diagnosed in Ontario each year.
"It is probably the single biggest work-related cancer that we
know and it's due to exposure 30 to 40 years ago," he said.
"We're still paying the price for having used asbestos in the
past, which is why we need to take every measure we can to stop
asbestos use now."
Sandal's bill banning the brake pads has received support from
members of all three parties. It's already passed two readings
and is one step away from becoming law.
In the U.S., California and Washington state have already banned
the toxic car component.
"It's still prevalent, it's still here, workers still encounter
it," said NDP MPP Taras Natyshak (Essex), a former construction
worker and certified asbestos removal technician.
"I think it's high time that we acknowledge that we can be an
asbestos-free society and we can set the standard in the country
so that no workers are ever exposed to this insidious compound."
ASBESTOS UPDATE: Santa Fe's Manuel Lujan Building Up For Abatement
------------------------------------------------------------------
Kob.com reports that low levels of asbestos have been found in a
state building that's scheduled for an $18 million renovation.
The asbestos has been found in glue used to fasten latillas to
ceilings and walls in the Manuel Lujan building in Santa Fe.
KOB Eyewitness News 4 is told the materials can be safely removed
and don't pose a health risk now because the glue remains intact.
About 90 employees of taxation and revenue will be relocated to
another office by the end of the month and then asbestos abatement
will start.
More than 200 workers at the tax agency have already been moved.
ASBESTOS UPDATE: Suffolk County Executive Suffers Mesothelioma
--------------------------------------------------------------
Karl Grossman for The Shelter Island Reporter relates that Bill
Lindsay, the affable, consensus-seeking presiding officer of the
Suffolk County Legislature since 2006, is a victim of occupational
exposure to asbestos. It happened during his prior work as an
electrician and an official of the International Brotherhood of
Electrical Workers. His job for the union was to inspect job
sites at which fellow electricians suspected they had been exposed
to asbestos.
At the start of this year, Mr. Lindsay was diagnosed with
mesothelioma, a form of lung cancer caused by asbestos. The
diagnosis came shortly after he had been re-elected unanimously to
a seventh term as the legislature's presiding officer, the number-
two position in Suffolk County government after county executive.
Mr. Lindsay was an electrician for 15 years and for 23 years
business agent and business manager of Local 25 of the IBEW, which
covers electricians in Nassau and Suffolk counties. In working as
an electrician, "a lot of the time" he had to "scrape off the
asbestos fireproofing" from beams before attaching electrical
conduits to them, he recalled last week. "You ended up breathing
in asbestos."
Although "asbestos was outlawed in 1972," he noted, there was
still a lot of it in existing structures. As an IBEW official, he
would regularly go to where "my members" were concerned about
being exposed to asbestos. "I implemented a program for my
members in which a sample of the fireproofing would be sent to a
laboratory for examination." That procedure was needed because "a
lot of landlords lied about asbestos," claiming it didn't exist in
their buildings. The tests presented the proof.
In going repeatedly to the scenes of likely asbestos
contamination, Mr. Lindsay was exposed, too, even beyond the
exposure he received when he worked as an electrician. Of
mesothelioma, he noted, "You only get it from asbestos."
Indeed, the website MesotheliomaHelp.net is headed: Mesothelioma
-- The Cancer Caused by Asbestos," with information on the
connection including a 2010 National Academy of Sciences study.
"Asbestos is a known carcinogen and is proven to cause
mesothelioma," it states. "Often called 'asbestos cancer,'
mesothelioma is highly aggressive and is resistant to many
standard cancer treatments."
"The good news," said Mr. Lindsay last week, "is that on August 11
the doctor told me I was cancer-free. The bad news is that they
took out my lung."
His remaining lung has "really picked up functionality and is
operating at 94 percent," he said. He's generally "feeling
good...It depends on the day." Mr. Lindsay will be 66 in
November. He plans to continue on the legislature through the end
of next year, when its term limit of six two-year terms takes
effect for him. He then intends to retire. If there is a medical
downturn before that, "I would retire immediately."
Mr. Lindsay, a Holbrook Democrat, has been popular with his peers
as presiding officer. His approach as the legislature's leader,
he explained, has been to "have a personal relationship with every
legislator and work together to make a better government."
Millions of people like Mr. Lindsay have been struck by cancer.
The World Health Organization determined in 2010 that cancer had
become the world's leading cause of death, overtaking heart
disease. Why the cancer epidemic? Report after report attributes
it mainly to the toxic substances in the water we drink, the food
we eat, the consumer products we use and the air we breathe. As
the President's Cancer Panel stated in a 2010 report, "Reducing
Environmental Cancer Risk: What We Can Do Now," we are "bombarded
continually with myriad combinations of these dangerous
exposures." The panel urged President Obama "most strongly to use
the power of your office to remove the carcinogens and other
toxins from our food, water and air that needlessly increase
health care costs, cripple our nation's productivity and devastate
American lives." It emphasized that there are safe "alternatives"
to cancer-causing agents.
The U.S. government has generally failed to act because of the
political power of those who are poisoning people. A book was
written on this in 1982, "The Poison Conspiracy." Asbestos, for
example, was known as a carcinogen as far back as 1929 and nothing
was done, even though safe alternatives were always available.
As for the corporations responsible, consider Johns Manville, the
global giant in manufacturing asbestos products. In 1982, faced
with thousands of asbestos injury lawsuits, it declared bankruptcy
to protect itself. It remains in the insulation business today.
ASBESTOS UPDATE: Warren Defends Her Representation of Travelers
---------------------------------------------------------------
Michael Levenson for The Boston Globe reports that Democratic
Senate candidate Elizabeth Warren defended her representation of
an insurance company in an asbestos lawsuit, and indicated
tentative support for medical marijuana and physician-assisted
suicide, two issues that will appear on the November ballot in
Massachusetts.
"If there's something a physician can prescribe that can help
someone who is suffering, I am in favor," Warren said when asked
about the medical marijuana ballot question, adding that there
have to be the "right restrictions."
Discussing another ballot question that would legalize assisted
suicide, Warren said she "turns in the direction" of wanting to
give dying patients "autonomy" in making end-of-life decisions.
Warren's Republican opponent, US Senator Scott Brown, opposes the
medical marijuana question and says he hasn't made up his mind on
the assisted suicide question.
Warren made the declarations during a wide-ranging hour-long
interview on WTKK-FM in which she was repeatedly pressed on
subjects she prefers to downplay, notably the asbestos lawsuit,
her Harvard records, and her professed Native American heritage.
Brown has attacked her for representing Travelers Insurance in a
2009 lawsuit, saying her work on behalf of a corporate client
undercuts her reputation as a consumer advocate.
In the case, Warren defended Travelers as it sought protection
from future claims as part of an agreement that would also unlock
a $500 million settlement for asbestos victims, a step many
victims supported. After Warren's work on the case ended,
however, Travelers won another court ruling that allowed it to
avoid paying victims. That ruling is under appeal.
A Harvard Law School expert in bankruptcy law, Warren insisted she
had no way of knowing that, after she left the case, Travelers
would seek to avoid paying victims from the settlement. "After I
left the case, the lower court made the wrong decision," she said
on the "Jim and Margery Show."
She said the idea behind allowing Travelers to unlock the trust
was to guarantee that "everyone gets compensated." She pointed
out that that plaintiffs' lawyers in the case and asbestos
workers' unions have said her advocacy in the case helped protect
the settlement for victims.
Warren's lengthy answers, however, often relied on legal language
that underscored why the case has been difficult for her to defend
in the midst of a campaign.
"It was going to the Supreme Court on a specific question," Warren
said, trying to explain the case at one point, "and the question
was: will trusts survive as a legal tool?"
Pressed by host Jim Braude to release a list of other corporate
clients she has represented, Warren said,"I don't have it."
She also faced a series of questions about her decision, in the
late 1980s and early 1990s, to identify herself as a Native
American in a legal directory that is often used by law school
recruiters. Warren pointed out that her family members have long
believed they are part Cherokee and part Delaware, although she
has no written documentation of those roots.
"This is part of who I am," she said. "I can't deny who I am."
But she added, "I didn't use it for any personal benefit."
She declined, however, to release her personnel records from
Harvard, which Braude said could put the issue to rest.
Warren replied that questions about her heritage have already been
asked and answered, and she pointed out that the people who hired
her at Harvard Law School have said her heritage played no role.
Warren got a few chances to poke Brown during the interview.
Asked about whether the senator benefits politically from his
model good looks, Warren said he "doesn't look as cute" when he
votes against President Obama's jobs bills.
Warren also dismissed Brown's support for a balanced budget
amendment, saying her plans have been shown to cut more from the
deficit than Brown's plans -- and "not through tricks."
Warren also weighed in on the Emmy Awards on Sunday night. She
said her favorite show is "Homeland." She did not mention that
Obama, with whom she often aligns herself politically, has also
called the show one of his favorites.
ASBESTOS UPDATE: Fibro Find Adds $800,000 Cost to Saginaw Project
-----------------------------------------------------------------
Mark Tower of MLive.com reports that the discovery of asbestos
covering the structural steel inside the Saginaw Centre has added
more than $800,000 to Saginaw County's estimated cost to demolish
the onetime downtown mall.
The Saginaw Centre is part of a larger county project to add
parking on about 6 acres south of The Dow Event Center in downtown
Saginaw. The project also includes the demolition of the Saginaw
Plaza Hotel and renovation of a parking ramp across Franklin from
the Saginaw Centre.
From a community and economic development perspective, Saginaw
County Controller Marc McGill said, the changes are a huge
positive for downtown Saginaw and for those seeking secure, nearby
parking for The Dow Event Center.
"We are really improving an important part of the county," he
said. "And we're taking out two buildings that were blighted or
near-blighted."
McGill said the project was initially estimated to cost about
$4.8 million. The price of careful removal of the hazardous
material from the I-beams crisscrossing the 170,000-square-foot
building added $813,750 to the bottom line, he said.
"The big thing we didn't plan on was needing to pay $800,000 for
asbestos removal," McGill said.
Ryan Londrigan, Group Leader at AKT Peerless Environmental and
Energy Services, is overseeing the removal of asbestos. The
Saginaw Centre was built in 1972, at a time when asbestos was
commonly used for fireproofing, Londrigan said.
"It's very common in buildings from that time period," he said.
"We find it in almost every building we survey."
Londrigan said he expects the abatement of the material will run
through sometime in November.
"It's just a very labor-intensive process to remove it," he said.
To solve the cost overrun stemming from the discovery of asbestos,
a few aspects of the project needed to be cut back, McGill said.
The most notable change was the elimination of about $700,000
worth of lighting replacements from the parking ramp at the
intersection of North Washington and Johnson.
McGill said the original plan was to replace all the electrical,
bulbs and fixtures in the ramp with energy-efficient LED lighting.
It was an attempt to realize cost savings on both replacement and
electricity costs, he said.
McGill said he hopes, at some point, another funding source
becomes available to make the parking ramp lighting improvements.
The project is still about $200,000 over budget, McGill said.
Though he said he is meeting with contractors in an attempt to
eliminate the overrun, it may not disappear altogether, he said.
"We may have to go back to any number of bodies and seek another
$200,000 in funding," McGill said.
The cost of the project is covered by a combination of Saginaw
County funds and money from the Saginaw County Land Bank and the
Great Lakes Bay Convention & Visitors Bureau.
The land bank purchased the hotel property in December 2011 for
$235,000 and shelled out another $970,000 to buy the Saginaw
Centre property earlier this year. Those land purchases were made
with funds the land bank gathers from forfeitures and
foreclosures.
The convention and visitors bureau agreed, over a six-year period,
to repay a portion of the hotel property purchase cost and the
entirety of the second purchase.
The majority of the cost of the project, now estimated at $5.25
million, is covered by the $3.3 in financing taken on by Saginaw
County.
McGill said those bonds, which came with a 2.5 percent interest
rate, will be paid off over 20 years. About $200,000 annual bond
payments, he said, are coming from out of the about $1.2 million
collected each year from The Dow Event Center property tax
millage.
According to a total project cost summary provided by McGill, the
funding sources for the project are as follows:
-- Saginaw County bond proceeds: $3.3 million
-- Great Lakes Bay Conventions & Visitors Bureau: $1,023,098
-- Saginaw County Land Bank Authority: $510,702
-- Saginaw County Public Improvement Fund (to go toward
asbestos abatement): $220,000
McGill said he anticipates parking revenue from the new lots and
fees for renting them out for special events will cover the costs.
"From an income-expense thing, we're looking for a wash," he said.
In addition to the cost overrun, McGill said, the asbestos
abatement has pushed back the schedule for completing the project.
"We really wanted to get both these lots done this fall," McGill
said. "The asbestos is keeping us from doing that."
Though the demolition of the Saginaw Centre and construction of a
parking lot on the site will not be completed until sometime in
2013, the other two portions of the project are still on schedule.
McGill said a parking lot is expected to be complete this year on
the former site of the Saginaw Plaza Hotel, demolished this
summer.
"We'll be parking on it by November," McGill said.
McGill said renovations to the parking ramp across Franklin from
the Saginaw Centre are also expected to be finished in November.
ASBESTOS UPDATE: Three Thatcher Plant Violators Sentenced Sept. 25
------------------------------------------------------------------
The Chattanoogan.com reports that after a case in which the
sentencing hearing has extended over several days, three
defendants in an asbestos case in Federal Court should have known
their fates on Sept. 25.
Testimony from experts on both sides concluded on Monday, Sept. 24
in the case in which Don Fillers, James Mathis and David Wood were
found guilty earlier.
Prosecutor Matthew Morris of Knoxville on Monday afternoon asked
Judge Curtis Collier to give a nine-level enhancement on grounds
that sloppy handling of asbestos at the old Standard Coosa
Thatcher plant in Ridgedale could have caused "death or serious
bodily harm."
Defense attorneys are arguing against the enhancement.
Another prosecutor, Todd Gleason of Washington, D.C., left town
before the day was over. When court resumed after a recess, Judge
Collier asked prosecutor Morris the whereabouts of his co-counsel.
He said prosecutor Gleason had to leave to prepare for another
trial in a different federal district.
The extended hearing has been closely followed by some Fillers
family members and a large delegation in support of Mr. Mathis.
At one point there was applause by the audience when Mathis
attorney Robin Flores made a statement that "Jesus Christ was
crucified, but he was not guilty." The judge told the crowd he
would clear the courtroom if there was another outburst.
Mr. Mathis earlier fired the attorney who represented him at the
trial. At the start of the hearing, he was considering also not
retaining attorney Flores, but he decided to do so after a 30-
minute consultation with him.
Authorities said earlier that Fillers faces a maximum 20 years and
the other two defendants five years.
ASBESTOS UPDATE: Ex-Owner of Rock-Tenn Paper Mill Site Indicted
---------------------------------------------------------------
Rex Hall, Jr., at Mlive.com reports that the former owner of the
Rock-Tenn paper mill site has been charged in a five-count
indictment accusing him of violating the federal Clean Air Act.
The indictment, which was filed Friday in U.S. District Court in
Grand Rapids, charges Michael Davis, Jr., with failing to obtain a
thorough asbestos inspection, failing to have a representative
trained in asbestos regulation on-site, failing to wet asbestos-
containing material, failing to label asbestos-containing waste
and failing to properly dispose of asbestos-containing material.
Davis bought the former Rock-Tenn site on Helen Avenue in 2006 but
the property entered foreclosure in April 2011 after Davis'
company, Cogswell Property LLC, failed to pay overdue property
taxes.
In March, the U.S. Environmental Protection Agency completed the
emergency removal of 18 tons of hazardous waste from the old paper
mill site.
The 12-page indictment alleges that after Davis purchased the
Rock-Tenn site in 2006, he "intended to salvage the metal from
pipes, boilers and other components" inside an old powerhouse on
the property.
At the time, federal authorities allege that Davis was aware that
there were "substantial quantities of asbestos-containing
insulation at the Otsego paper mill, particularly on pipes in the
powerhouse."
Investigators said insulation on some of the pipes contained
warning labels stating "Hazardous Substance Asbestos" while other
had labels that said "Asbestos Free."
"Rather than pay for a trained and professional expert in asbestos
removal, (Davis) devised a scheme to save time and money by hiring
inexperienced laborers to assist him in removing the asbestos-
containing insulation from pipes and other components in the
powerhouse without following the work practice standards for
handling asbestos as required by federal law," authorities said in
the indictment.
The indictment notes at least three instances between 2006 and
2007 during which Davis was warned about the presence of asbestos
in the powerhouse building.
Court document show that Davis was fined by the Michigan
Occupational Safety and Health Administration in May 2007 for
failing to have a complete building survey of the powerhouse
completed. The agency also warned him about "the toxicology of
asbestos," and told his company that work on the building should
not continue without a complete asbestos survey, according to the
indictment.
Despite the warnings from MIOSHA, Davis hired a demolition company
in April 2007 to remove scrap metal from the old paper mill site.
"When personnel from the demolition company informed Davis they
did not work around or handle asbestos, Davis falsely assured the
demolition company that the site was clean of asbestos," federal
investigators allege.
". . . Between no later than in or about the fall of 2007 and
continuing to in or about March of 2008, laborers working under
the direction of (Davis) scrapped out metal from pipes and other
components in the powerhouse of the Otsego paper mill, and
disturbed asbestos-containing insulation."
Federal authorities said the work continued until March 2008 when
inspectors from the Michigan Department of Environmental Quality
visited the site, took samples and discovered that the insulation
had been disturbed and removed.
Investigators said that after the visit by the DEQ, Davis hired an
environmental consulting company which concluded that the
powerhouse was contaminated with asbestos materials that had been
improperly removed.
Investigators said that in May 2008, Davis sent a letter to the
DEQ "falsely stating, 'we were not aware of the presence of
asbestos' until the (DEQ) notified him of the asbestos in the
powerhouse in March of 2008. Davis also claimed that he was
unaware of the requirement to thoroughly inspect the facility for
asbestos."
ASBESTOS UPDATE: Danvers' Dunn Building Project On Time and Budget
------------------------------------------------------------------
Sam Trapani of The Wicked Local Danvers Herald reports that
residents driving down Cabot Street should take a final look at
the Cornelius F. Dunn building because in three weeks the familiar
sight of the wing that was built in the 1970's will no longer be
there.
Danvers Town Manager Wayne Marquis said this important phase of
the project is well underway and all that remains is the shell of
the building, the rest having been gutted.
"Some people have never seen the high school without the Dunn Wing
there," Marquis said of the building, which served as the town's
former middle school and most recently, where high school students
were housed during the early phases of construction on the new
high school.
The Dunn Wing, which was plagued with issues, including
ventilation problems, needed to be demolished to make room for the
final phase of the high school construction project.
The building was originally going to be taken down in June after
students were out of school in order to be complete before the
bell rang in the fall, but asbestos was found in adhesive material
used to glue in windows, delaying the entire process.
Because of the asbestos, a licensed site professional was called
in to develop a plan for its removal with the OK of the state
Department of Environmental Protection. That work is now complete
so the team can continue with the work of taking down the
building.
Marquis said NASDI, LLC, who is doing the demolition, is one of
the leading demolition and site redevelopment contractors in the
United States.
"We're very fortunate to have NASDI, LLC as the company in charge
of our project," Marquis said.
Marquis said the windows were removed as well as "the connector"
which linked the three story Dunn Wing to the high school. Soon,
contractors will begin taking down walls.
"It will take three weeks and the reason it takes so long is that
we don't have a big wrecking ball," Marquis said. "We have a
construction claw that is carefully pulling out the material."
As part of the agreement with the Massachusetts School Building
Authority, Marquis said all the material has to be recycled.
"We have to sort it -- steel in one container, brick in another,"
Marquis said. "And the bricks that had the asbestos on them from
the windows go into a separate disposal unit."
Another reason for the calculated, slow demolition is because
school is back in session.
"We have the kids in school just a few feet away so we have to be
very careful," Marquis said. "We have to maintain a dust-free
atmosphere. There are water trucks to water down materials so
there is no dust. And the construction can't be pounding and loud
to be disruptive to classrooms."
Marquis explained the kids are in school from 7 a.m. to 3 p.m. so
any work on the punch list of things to be completed is not done
until a 3 p.m. to 11 p.m. shift.
Once the Dunn Wing is taken down and all debris sorted and
removed, the crews are ready to begin phase two of the project --
the final section.
Marquis said already the footing and foundations are in for the
central office area and contractors are getting ready for the
cafeteria.
The entire project is slated to be fully complete in time for the
opening of school in 2013.
"A year from now, we will be done," Marquis said. "David Lane and
his staff have done an amazing job. We're on time and under
budget."
Marquis said he attended Danvers High School before the Dunn Wing
was built and remembers what it was like.
"Now it will look really different," Marquis said. "Once
complete, the new front door of the school will look out towards
the fields instead of onto Cabot Road."
In order to preserve the memory of Cornelius Francis Dunn, who
lent his name to the Dunn Wing, the Danvers School Committee voted
last year to rename the Holten-Richmond Middle School
administrative suites after him.
Danvers Superintendent Lisa Dana explained at the time of the
decision, she made the recommendation to the School Committee to
move Dunn's portrait to Holten-Richmond and rename the
administrative offices because Dunn came to Danvers in 1918 and
taught a variety of subjects including science, history and
economics.
During Dunn's early years at the high school, classes were held in
the Town Hall until the high school building on Conant Street
opened in 1931.
"It makes sense to move him there because he was the principal of
Holten High School," Dana said.
Dunn was named as assistant principal in 1921, and as principal of
Holten High School in 1928, where he served until retiring in 1958
after 40 years in the school system.
According research conducted by the school district, Dunn "was a
very capable leader and educator, but also a most welcome and
refreshing influence upon all the young men and women who have
attended our high school."
ASBESTOS UPDATE: Hearing Set on Bid to Intervene in Garlock Case
----------------------------------------------------------------
John O'Brien of Legal Newsline reports that a bankruptcy judge has
scheduled an Oct. 11 hearing on asbestos claimants' motion to
intervene in Garlock Sealing Technologies' accusation of fraud
against asbestos attorneys.
Judge George Hodges scheduled the hearing Thursday, Sept. 20.
Written response or opposition to the motion to intervene, in
which the Official Committee of Asbestos Personal Injury Claimants
says it will support the asbestos attorneys, must be filed by
Monday, Sept. 24.
Garlock accuses the Houston law firm Williams Kherkher Hart
Boundas of making inconsistent claims about the origin of a
client's mesothelioma.
The claimants' committee says Garlock has attempted to make
similar claims since its bankruptcy proceedings began in 2010.
"The fraud allegations that Garlock . . . raise(s) here clearly
have bearing on the issues being litigated in the proceeding to
estimate Garlock's asbestos liabilities in the aggregate," the
committee's motion says.
"Such allegations are part and parcel of Garlock's larger
objectives in the estimation case to trump its settlement history,
to develop a new way of valuing its asbestos liability, to oust
the non-bankruptcy courts that typically administer the tort laws,
and to come out smelling like a rose in comparison to the $1.8
billion it paid before bankruptcy for the defense and payment of
asbestos claims. . . ."
Garlock is one of more than 60 asbestos defendants to have created
a bankruptcy trust. Injured individuals submit claims to the
trusts for compensation, but file lawsuits against still-solvent
defendants.
Williams Kherkher sued Garlock in 2008 in a Texas state court,
alleging that Phillips' illness was caused by a rare type of
asbestos (crocidolite) that came solely from Garlock's products,
the company claims, at the same time it was pursuing claims
against a manufacturer of products that contained the same type of
asbestos.
Garlock says it was induced to enter into a far larger settlement
than it would have paid. In Texas, juries can allocate a
percentage of liability to responsible third parties.
Phillips worked at Triplex, a company that sold parts that
contained asbestos, from 1966-68, but no records still exist
detailing the company's inventory then.
The company claims the firm could have asserted Johns-Manville's
asbestos-containing gaskets were to blame, but Johns-Manville had
already filed for bankruptcy. More than 90 companies have
declared bankruptcy from asbestos litigation, and more than 60
bankruptcy trusts have been established to pay out claims.
The claimants' committee is a group of plaintiffs with pending
claims against Garlock. Attorney Trevor Swett --
tswett@capdale.com -- of Caplin & Drysdale in Washington, D.C.,
filed the motion Sept. 6.
Co-counsel for the claimants' committee is Travis Moon --
tmoon@mwhattorneys.com -- of Moon Wright & Houston in Charlotte.
Garlock wrote in its complaint that Williams Kherkher attorneys
told two different stories about its client's exposure history.
"(The lawyers) repeatedly signed responses to requests for
information about their client's claim against Garlock by
describing a history of exposure to asbestos products that did not
include exposure to the products of (CAPCO)," Garlock's complaint
says.
"The lawyers had reason to believe that telling two different
stories would succeed because their ballots would not be readily
available to the public and their bankruptcy trust claims, when
made, would be kept confidential."
Garlock obtained copies of ballots cast on plans of reorganization
in certain bankruptcy cases in April. They showed that a Williams
Kherkher attorney certified that Phillips held a claim against
ASARCO, the owner of CAPCO.
A second ballot cast in 2009 after a settlement with Garlock
showed Phillips had a claim against CAPCO in which he listed a
disease level that required evidence of exposure to products
mined, manufacture, sold, supplied, produced, specified, selected,
distributed or marketed by CAPCO or ASARCO, the company says.
"Garlock is informed and believes that the firm knew about
Phillips' exposure to CAPCO products during 2008-09 when it
responded to or supplemented Garlock's discovery," the complaint
says, "and failed to disclose such exposure to Garlock because it
would decrease the value of the claims against Garlock."
Garlock called the current status of bankruptcy claims and civil
lawsuits "a two-track system that is rife with potential for
abuse."
ASBESTOS UPDATE: AMWU Demands Recall of 24,000 Chinese Cars
-----------------------------------------------------------
Richard Willingham of The Sydney Morning Herald reports that
nearly 24,000 imported Chinese cars that contain asbestos must be
recalled and parts containing the toxic substance replaced, one of
the country's biggest unions has told the consumer watchdog.
The Australian Manufacturing Workers Union is livid after Great
Wall and Chery cars were found to have asbestos in engine and
exhaust gaskets. A letter sent by occupational health and safety
consultant Hibbs & Associates to car owners said there were
"negligible" asbestos-related health risks to passengers and
mechanics provided that removal and handling procedures were
followed.
In August there were calls for the cars to be recalled, but the
Australian Competition and Consumer Commission instead said parts
should be replaced during routine servicing.
ASBESTOS UPDATE: Brown's Top Aide Crashes Warren Supporters' Meet
-----------------------------------------------------------------
Saki Knafo for The Huffington Post reports a top aide to Sen.
Scott Brown (R-Mass.) made an unexpected appearance at a gathering
of Elizabeth Warren supporters on Friday, Sept. 21, according to a
video obtained Monday, Sept. 24 by The Huffington Post.
The gathering outside Brown's campaign office in Boston was
convened in response to an earlier press conference in Brown's
office, where Brown repeated a charge that he's made several times
in recent days against his Democratic challenger for the Senate
seat. The first-term senator accused Warren of helping a major
insurance company avoid paying a settlement to victims of asbestos
poisoning.
Those refuting Brown's charge outside his office included Scott
Curry, an organizer for an asbestos workers union, Francis
Callahan, the head of a Massachusetts construction union, and
David McMorris, a lawyer who specializes in litigation on behalf
of asbestos victims for the Boston firm Thornton & Naumes. After
the speakers reaffirmed their support for Warren, the unexpected
guest, Jim Barnett, the campaign manager for Brown, chimed in.
Referring to McMorris, Barnett said, "I think he's donated
hundreds of thousands of dollars to the Democrats." He also noted
that the McMorris' firm has sued the insurance company that Warren
worked for. "That's interesting," Barnett said, with a smile.
Reached by phone Sept. 25, McMorris replied, "That really did not
address the substance of what we said, and what we said is true:
Scott Brown is twisting and misrepresenting what happened in that
case."
It's unusual for a political operative to openly intervene at an
opponent's press conference, but recent polls suggest that Brown's
campaign needs every advantage it can get. For the last few
weeks, the polls have mostly shown Warren pulling ahead of Brown,
and Brown's campaign has turned increasingly combative, a strategy
that may come at the cost of the nice-guy image Brown has
cultivated until now. Brown's campaign did not respond to a
request for comment.
In their first debate on Friday, Sept. 21, Brown tried to
undermine Warren's reputation as an advocate for the underdog by
highlighting her work with the insurance company, Travelers
Insurance.
The next morning, at a press conference at his headquarters, Brown
followed up on this line of attack by holding up a stack of papers
that he said documented the $212,000 Warren had received for her
work on the lawsuit.
"Now, I don't know anybody who's hired by an insurance company
that was actually working for the victims," Brown said.
In fact, an investigation by the Boston Globe last spring found
that Warren did just that.
As the reporter, Noah Bierman, recounts, "Travelers was trying to
gain permanent immunity from asbestos-related lawsuits by
establishing a $500 million trust for victims." Warren was
brought in to protect the trust, and her work on the case "helped
preserve an element of bankruptcy law that ensured that victims of
large-scale corporate malfeasance would have a better chance of
getting compensated, even when the responsible companies go
bankrupt."
After Warren left the case, things got more complicated. The case
wended it way through the legal system, and thanks to a recent
ruling, asbestos victims are still unable to access the trust fund
that Warren fought to save. Warren has insisted that she didn't
foresee that outcome.
At the press conference outside Brown's office, Callahan, the head
of the Massachusetts Building Trade Council, offered a pointed
rejoinder to Brown's accusations. Asbestos poisoning is "a
horrible way to die," Callahan said. "And to have Scott Brown
trying to score cheap political points on this is quite frankly
disgusting to me."
Curry, the organizer, said that his father, an asbestos worker,
died of asbestos poisoning. "I don't need a guy like Scott Brown
talking about this or that when he really doesn't know where he's
coming from," he said.
ASBESTOS UPDATE: Council Advises to Leave Dormant Fibro As Is
-------------------------------------------------------------
The Boston Standard reports that asbestos is lying dormant on many
allotment sites around Boston borough -- and the council's advice
in dealing with it is simply to leave well alone.
The hazardous substance is thought to be in old sheds on the
majority of council-run plots.
Officers have stressed the asbestos is currently in a stable
condition and is not dangerous as a result, but tenants are warned
to keep an eye out for any changes which could alter the
situation.
At a meeting of the Boston Town Area Committee (BTAC) earlier, the
council's head of regeneration Steve Lumb said: "If asbestos is
intact it is fine. We're in a position where if a shed gets
vandalized or torn apart or there is a fire then we need to look
at it.
"There is no actual hazard as it stands."
Councillors agreed that it may cause more problems to remove the
asbestos than to leave it where it is, but one member -- Coun Mark
Baker -- said he thought it was important that the tenants knew
they were not able to do anything with the sheds in case the
asbestos become airborne.
The news was revealed during a discussion about the authority's
allotment strategy.
During the debate, the issue of providing more allotments was also
raised.
Mr. Lumb said there may be a chance in future of bringing back
into use an allotment site on Broadfield Lane in Boston, and other
plots are being split to provide smaller 'starter' spaces.
ASBESTOS UPDATE: Mesothelioma Victims Center to Help Elderlies
--------------------------------------------------------------
The Mesothelioma Victims Center says, "We have a huge worry about
senior citizens, who have been diagnosed with mesothelioma. We
fear because of the age of the mesothelioma victim, or the speed
at which mesothelioma cancer advances many families do not make
discovering who the best possible mesothelioma law firms a
priority. When it comes to compensation for mesothelioma cancer
it is vital the victim has a top notch legal team in place as soon
as possible, and we are the only group in the nation offering a
victim of mesothelioma, or their family members the names, and
specific contacts for the best mesothelioma law firms, and or
mesothelioma attorneys in the United States. No other group
offers this service, and we are urging family members of senior
citizens, who have been diagnosed with mesothelioma to call us.
Do not get short changed by getting anything but the absolute best
mesothelioma law firm, or mesothelioma attorneys." The typical
victim of mesothelioma the Mesothelioma Victims Center talks to,
or learns about is more often than not in their late 60's, 70's,
or even 80's. Families of diagnosed victims of mesothelioma are
urged to contact the Mesothelioma Victims Center anytime at
866-714-6466 for what really is a free service without equal.
The Mesothelioma Victims Center says, "We are the best branded
resource on the Internet for families of mesothelioma victims, and
we are urging the adult children of parents, who have been
diagnosed with mesothelioma to not let the age of the victim of
mesothelioma discourage you from calling us about your family
member, or loved one, who has been diagnosed with this rare form
of cancer caused by exposure to asbestos. Many mesothelioma
lawsuits, or settlements involve hundreds of thousands, or even
millions of dollars, and we are in the mesothelioma victims'
rights business. Even if a mesothelioma victim is in their 70's,
or 80's, we will do everything possible to ensure the victim of
mesothelioma, or their family members get to the best mesothelioma
attorneys, or mesothelioma law firms in the nation, and we will
provide the family with the specific contact information for the
top two, or three mesothelioma attorneys in the United States. No
other group in the US offers a service as comprehensive, and as
honest as ours. Please do not get shortchanged by a less than
best mesothelioma law firm." If a family is concerned about
compensation for mesothelioma, and obtaining the best possible
help, advice, and resources, they are urged call the Mesothelioma
Victims Center anytime at 866-714-6466, for a free service without
equal.
Mesothelioma is an extremely rare form of cancer. According to
the US CDC approximately 2500 US citizens are diagnosed with
mesothelioma each year. Mesothelioma cancer is a result of
exposure to asbestos. One third of all US mesothelioma victims
served in the US Navy. Other high risk groups for mesothelioma
include shipyard, power plant, Chemical plant, or oil refinery
workers, plumbers, county, or city municipal water district
workers, miners, electricians, demolition contractors, railroad
workers, or auto brake technicians. The Mesothelioma Victims
Center says, "Typically the average US mesothelioma victim is in
their late 60's, to early 70's years old. More often than not
mesothelioma is diagnosed three, four, or even five decades after
the exposure to asbestos. For a son, a daughter or a wife trying
to get the absolute best information after a mesothelioma
diagnosis, the Mesothelioma Victims Center has no equal, and you
can call us anytime at 866-714-6466."
ASBESTOS UPDATE: Doltone House to Host 4th Signorelli Dinner
------------------------------------------------------------
Bulldogs.com.au reports that 1200 guests will enjoy a black tie
gala dinner hosted by Sydney's award winning Doltone House, in a
purpose built marquee on Darling Island Wharf Pyrmont to support a
very worthy cause.
Sydney's Doltone House, Darling Island Wharf Pyrmont is set to
host the 4th Biaggio Signorelli Foundation Gala Dinner on the
evening of Wednesday 26th September, with the attendance of Her
Excellency Professor Marie Bashir AC CVO, Governor of NSW and The
Hon. Barry O'Farrell MP Premier of NSW.
The foundation is committed to raising awareness, early detection,
treatment and cure for the asbestos-related cancer (Mesothelioma)
-- the Signorelli family's tribute to their father and the founder
of Doltone House Group who passed away from the cancer in May
2008.
The credibility of the foundation has been captured by the NSW
Government in both 2010 and 2011 having received two consecutive
government grants totaling $150,000. The foundation has raised
almost $1m and key achievements include the funding of three
research fellowships of $300,000 each over three years. Dr.
Anthony Linton and Dr. Casey Wright housed at the Asbestos
Diseases Research Institute in Concord, as well as Dr. Tristan
Yan, the Biaggio Signorelli Foundation Director of Thoracic
Oncology housed at The Baird Institute. The foundation has also
contributed $125,000 towards the development of the National
Guidelines for Diagnosis and Treatment of Mesothelioma.
The foundation's reputable board is made up of Former NSW Premier
Morris Iemma; radio presenters Jason Morrison of 2UE & Glenn
Wheeler of 2GB, Keith Cox (head chemotherapy nurse at RPA), along
with Doltone Houses' family Directors, Paul Signorelli, Nina
Milazzo and Anna Cesarano.
In addition to esteemed company, the evening promises to treat
guests to fine food and beverages, a fantastic entertainment
lineup including Anthony Callea and Prinnie Stevens, along with
great prizes for the major raffle and live auction under the stars
on Sydney's Harbour.
Fittingly, 26 September also marks National Mesothelioma Awareness
Day in the USA, a day dedicated to raising the public's awareness
of Mesothelioma and to encourage all American's to help raise
funds to combat the deadly disease.
ASBESTOS UPDATE: Draft Assessment on Libby's Toxicity Levels Out
----------------------------------------------------------------
Alan Lewis Gerstenecker of The Western News reports the
Environmental Protection Agency's Science Advisory Board (SAB) is
expected comment Tuesday, Sept. 25 on the Draft Assessment on
toxicity levels of asbestos levels in Libby.
The preliminary report, entitled the "Toxicology Review of Libby
Amphibole Asbestos" has been released and the SAB will discuss it
during a tele-conference from 2 to 5 p.m. MDT.
The public is invited to listen in but will not be able to
comment, said Angela Nugent, the designated federal officer for
the Chartered SAB.
"This is a complicated process," Nugent said.
To hear the teleconference, email Nugent at nugent.angela@epa.gov
who will reply with teleconference information.
ASBESTOS UPDATE: WorksSafe Says "Back To Work" at Canberra Project
------------------------------------------------------------------
The ABC News reports that Work Safe ACT is allowing work to
continue on a inner-city Canberra construction site where asbestos
handling concerns have been raised.
The construction union, CFMEU, had called for the hotel
redevelopment site at 78-80 Northbourne Avenue in Braddon to be
shut down.
It said asbestos was not being removed or disposed of correctly,
and workers were refusing to enter the construction site.
CFMEU ACT branch secretary Dean Hall says workers were not wearing
protective gear around asbestos contaminated material or being
properly decontaminated after finishing work.
But Work Safety Commissioner Mark McCabe says inspectors visited
the site Sept. 27 and are satisfied the employer has addressed
union concerns.
"We identified a number of concerns. The employer had already
taken some steps to make some of the necessary changes, and agreed
to the remainder of the changes we identified," he said.
"There are a number of issues around adequate supervision of
workers on the site and appropriate washdown facilities. Now both
of those issues could lead to the potential for exposure to
asbestos fibers, so they're fairly serious issues.
Mr. McCabe says the asbestos removal company has been referred to
the ACT Planning and Land Authority (ACTPLA) which issues
licenses.
"We'll now be discussing with ACTPLA what our findings were and
what further action might need to be taken," he said.
"They could withdraw that license, they could suspend that
license. That's a question for ACTPLA really."
Before the WorksSafe inspection, Dean Hall raised concerns that
both workers and the public were potentially being exposed to
asbestos fibers.
"Everybody who's been walking around that site's been in a
dangerous position. There's been demolition on the site while
workers have been removing asbestos in the basement," he said.
"It's a very high traffic area. There's a lot of people walking
past that site. You've got to be concerned that they haven't been
controlling the asbestos on the site not only for the workers but
for the public."
Mr. Hall said there were a number of concerns on many levels.
"Also we have the direct threat that there could be something go
wrong with the demolition process and not only kill workers on the
site but more importantly there is no or very little protection
for the public," he said.
"There's meant to be protections put around the site to minimize
or prevent parts of the building falling and crushing people in
the walkways or around the building when they're demolishing it.
We don't see any evidence of that.
"So there's some fundamental things gone wrong."
ASBESTOS UPDATE: Council Rejects "Dumpsite" Plan for Stowey Quarry
------------------------------------------------------------------
BBC News Bristol reports that plans to use a quarry in Chew
Valley, near Bristol, to dispose of hazardous waste -- including
asbestos -- have been unanimously rejected by councillors.
Bath and North East Somerset Council planners had recommended the
application be refused.
They said it had not been demonstrated that the quarry was an
"appropriate location" to dispose of asbestos.
An application had been made to use the site to bury 150,000 tons
a year of waste over a 10-year period.
Campaigners feared asbestos could leech via springs into the Chew
Valley reservoir which is about 1.2 miles (2km) from the site.
Speaking after the council's development control meeting, Lucy
Pover -- from Stop Stowey Quarry Action Group -- said the decision
"reflected the weight of public opinion."
"It's been a long hard fight over the past year -- we feel the
council has reached the right decision," Ms. Pover added.
Conservative councilor Vic Pritchard, who represents Chew Valley
South, said it was great news but acknowledged the decision "might
not be the end of the matter."
"If the applicant decides to appeal (against) this decision . . .
we'll continue to oppose the plans and take our arguments to the
planning inspector," he added.
Planning permission was originally granted in July 2011 but later
quashed in the High Court after the council was told the
application had not been advertised in accordance with
Environmental Impact Assessment regulations.
Consultants Oaktree Environmental, which was working on behalf of
its client, then sought to develop the application.
A company spokesman said no comment could be made until further
discussion had taken place with the applicant.
Two Bristol Labour MPs, Kerry McCarthy and Dawn Primarolo, had
also written to Bath council planners after being contacted by
concerned residents.
The North East Somerset Conservative MP, Jacob Rees-Mogg, is also
supporting opponents of the scheme. In August he handed a
petition containing more than 4,000 signatures opposing the scheme
into the local authority.
Utility company Bristol Water said it also considered the use of
Stowey Quarry as a waste disposal site as "inappropriate" which
represented a "risk to the long-term quality of the water resource
at Chew Valley Lake."
ASBESTOS UPDATE: Historical View of Admiralty Island's Asbestos
---------------------------------------------------------------
Pat Roppel for Capital City Weekly relates that asbestos is a
"dirty" word these days because of its health hazards, especially
to lungs. Many of us forget that asbestos occurs naturally and is
found in Alaska. An asbestos prospect is near the north end of
Admiralty Island, about a mile and a half inland. Unfortunately
for the locators and developers, the asbestos strands were not of
commercial value.
The outcropping was first staked in 1928 by Augustus Nicolas
DeRoux of Juneau. It crops out on the west side of a steep cut-
bank of a tributary to Bear Creek. The creek flows east four
miles to Gastineau Channel. The men accessed the prospect at the
200-foot elevation by a trail from a small cove at the mouth of
Bear Creek. On a Juneau Parks and Recreation website, Kenneth
DeRoux tells us that Augustus participated in the Klondike Gold
Rush, and then in 1899 he opened an assay lab in Skagway. After
the Gold Rush, he moved South and returned in 1928 to Douglas. It
must have been about this time that he went prospecting on
Admiralty Island because he located his claims that year.
In the next couple years, DeRoux and hired men dug an open-cut
across the best part of the outcropping. This was a trench along
the deposit to expose it. This work later caused the bank to slip
so the asbestos became poorly exposed for further exploration.
The men constructed a trail to the beach. One source tells us
that it was a road. By 1944 several cabins stood on the banks of
the tributary. A rail tram was started from the cove, and it
stopped after a short distance, never completed.
So why the excitement over asbestos? Asbestos is a name for six
different silicate minerals that resist heat, so it is fireproof.
It is a good insulation, is strong and flexible, and does not
conduct electricity. Most asbestos at that time was spun into a
cloth so the fibers needed to be long. The most familiar uses
that we know, before health hazards surfaced, were for roofing and
siding shingles, interior insulation, textured paint and patching
compound. Some of us mature folks remember our mothers had stove
top pads. What about those grey-colored sheets tacked around the
old wood stoves to prevent fires? The old, basement coal furnace
in my grandparent's house had asbestos wrapped around parts of the
huge iron machine, it and covered the hot water pipes.
An interesting thing I found researching for this article is that
ancient Greeks and Romans used asbestos as napkins and
tablecloths. To clean them, the dirty "linen" was thrown into a
hot fire. The napkins and tablecloth came out whiter than when
put in the fire.
So asbestos has been around for a long time. It was known in
prehistoric times in Alaska and found in excavations in ancient
villages on the Kobuk River (300 miles from today's Nome). Even
the ancient Greeks knew it caused "darkness of the lungs." Over
the centuries, this problem was forgotten or ignored.
But, back to the time of DeRoux and Bear Creek. Soon after
discovery, the U.S. Geological Survey examined the prospect. By
1930, DeRoux was listed as general manager and half owner of the
Shiedly-Roux prospect that operated under the name Alaska Asbestos
Company. Ken DeRoux states that Augustus spent much effort to
interest investors in the claims. I would guess Shiedly received
his ownership for a monetary contribution to advance development
work.
DeRoux told a reporter in 1931 that he believed his claim was the
only commercially viable quarry in Alaska. At that time the
values ranged from $40 for the poorer grades to the finest quality
at $350 per ton. This must mean DeRoux or the USGS sent out
samples for assay. More than $75 had been invested in the
development, and the owners planned to operate on a larger scale
in 1931.
The Bear Creek occurrence is thermolite asbestos. The best
quality asbestos comes from two of the other six minerals, but
thermolite is still commercially viable today. The Bear Creek
asbestos occurs in leaves and sheaves of parallel fibers, some 18
inches long, but the weathered, exposed surfaces break across the
fibers in small pieces and chunks. By 1944, the asbestos was
exposed for a length of fourteen feet, and in places the band was
a foot and a half wide. The vertical layer was traced for 60 feet
on the surface. The cross-fiber samples (as opposed to parallel
fibers) were three-quarters of an inch to six or eight inches
long.
In a USGS report, criteria were explained on how to open such a
mine: one had to see if better quality asbestos was under the
weathered material. The owner also needed to know if sufficient
quantity was available before talking to manufacturers. Usually
asbestos is mined by the company that processes it. Some asbestos
may be usable by one company and not by another.
Again, the USGS collected and tested samples and told DeRoux that
the asbestos did not meet the specifications for commercial use.
Apparently DeRoux was discouraged by this report and did no
further work on the unpatented claims. The last time geologists
examined the prospect was in 2005-2006 when the Bureau of Land
Management investigated the claims for the U.S. Forest Service.
The file is marked "probably abandoned."
The biggest Alaskan asbestos deposits are in the Kobuk River area
where the prehistoric people first used it. It wasn't until the
Gold Rush that prospectors seriously looked at the Dahl Creek
deposits. Several outfits examined the area, but it was not until
1943 before the Arctic Circle Exploration Co. mined 33 tons of
tremolite asbestos near the summit of Asbestos Mountain. A 229-
foot adit and several trenches were explored and then mined. No
further activity at the mine is reported, probably because, like
the Bear Creek prospect, the fibers were short and not
particularly strong.
Today 36,000 tons of thermolite are mined annually in India.
Pat Roppel is the author of numerous books about mining, fishing,
and man's use of the land. She lives in Wrangell. She may be
reached at patroppel@hotmail.com
ASBESTOS UPDATE: Pharmacia Corp et al Face Asbestos Lawsuit
-----------------------------------------------------------
John Suayan for The Southeast Texas Record reports that Jerry Mapp
has filed a lawsuit alleging that an illness reportedly attributed
to asbestos exposure killed his father.
Recent court documents filed Sept. 18 in Galveston County District
Court blame a slew of companies, including BP and Pharmacia Corp.,
for Sam Billy Mapp's death from lung cancer on Sept. 23, 2010.
The suit shows Sam Billy Mapp worked as an operator from 1947 to
1952, claiming he was exposed to asbestos dust and fibers prior to
1980.
It is unknown as to when physicians diagnosed the decedent with
cancer "which ultimately took his life."
"The defendants knew, or in the exercise of ordinary or reasonable
care should have known, that the asbestos containing insulation
and/or machinery they manufactured, sold, designed, supplied,
distributed, mined, milled, relabeled, resold, processed, applied
or installed was poisonous and highly harmful to the plaintiff's
health," the original petition says.
The suit adds "the defendants failed to adequately warn of the
asbestos containing products and/or machinery's dangers which
rendered them unreasonably dangerous."
Consequently, Sam Billy Mapp's son seeks unspecified monetary
damages.
Attorney Ian P. Cloud with Heard Robins Cloud & Black L.L.P. in
Houston is representing his estate, and Galveston County 10th
District Court Judge David Garner is presiding over the case.
Case No. 12-cv-2054.
ASBESTOS UPDATE: EPA Pushes for Tougher Cleanup Standard in Libby
-----------------------------------------------------------------
The Associated Press reports that a proposed standard for federal
cleanup of asbestos contamination in a Montana town concludes that
even a tiny amount of the material can lead to lung problems -- a
benchmark far more rigorous than any in the past and one that the
industry says could force expensive and unnecessary cleanups
across the country.
The Environmental Protection Agency's new proposal for the
northwest Montana town of Libby, where asbestos dust has killed
hundreds of people, would be 5,000 times tougher than the standard
used in past cleanups addressing airborne asbestos.
W.R. Grace & Co., the Maryland chemical company blamed for
pollution from its vermiculite mine that operated for decades, is
pushing back against the EPA, suggesting sites across the country
could be subjected to costly cleanups.
The ongoing Superfund cleanup in Libby has cost at least $447
million since 1999 and is expected to last several more years.
The town of about 3,000 people is about 40 miles south of the
Canadian border.
Experts say the EPA proposal is a move long sought by advocates
and fiercely resisted by the industry. An EPA board met this week
to discuss Grace objections to the proposal, part of a pending
risk study for Libby.
"In many respects it would be like banning it, getting it so low,"
said former assistant U.S. Surgeon General Richard Lemen, who now
teaches at Emory University in Atlanta. "EPA is being realistic
and saying, 'Look, we know there's asbestos out there and we're
not going to get rid of all of it, but let's put our concentration
as low as we possibly can.'"
EPA officials didn't respond to questions about the nationwide
consequences of its plan. It would declare airborne asbestos
concentrations exceeding two-100,000ths of a fiber per cubic
centimeter pose a health risk. The EPA has previously taken action
when the substance was airborne in amounts greater than one-tenth
of a fiber per cubic centimeter.
But the Government Accountability Office has said the cleanup
standard could affect some of the 200-plus industrial sites in 40
states that also received asbestos-tainted vermiculite from
Grace's Montana mine. More than 20 of those sites, posing the
highest health risks, have already been cleaned once. Most of
those were processing plants where the mineral was heated at high
temperatures so it could expand and be used for insulation in
millions of homes.
The GAO and asbestos experts said the EPA risk assessment could
force more cleanups. And Grace representatives and health
officials said the EPA proposal could apply to other types of
asbestos found in communities across the country.
In a letter to the EPA last week, Grace Vice President Karen
Ethier said the standard would have "inevitable" consequences
beyond Libby.
"That broad application will, in turn, result in enormous,
unexpected and unnecessary costs to building owners, farmers and
other property holders, including the federal government," Ethier
said.
Manufacturing and trade groups and federal agencies including the
White House Office of Management and Budget also have questioned
the EPA proposal. They said the low threshold falls below even
background asbestos levels seen in parts of the country.
Although the sale and manufacture of asbestos-containing materials
is tightly regulated, the government has never established a safe
level of human exposure for the type of the mineral found in
Libby. While there are general cancer-based exposure limits for
asbestos set by the Occupational Safety and Health Administration,
the EPA proposal for the first time sets a risk level for non-
cancer illnesses, such as the debilitating and potentially fatal
lung disease asbestosis.
That's a crucial issue in Libby, where the Grace mine and
processing plants for three decades left the town coated in
asbestos dust that has killed an estimated 400 people and sickened
at least 1,700 more. Health experts say the death toll is bound
to rise because of the long latency period of asbestos-related
illness.
The vermiculite was mined by Grace from a mountain outside town
and shipped across the country for use as insulation, fertilizer,
in fireproofing material and other commercial products.
The mine closed in 1990.
Health problems first noticed in mine workers have since become
pervasive in Libby, affecting spouses who laundered their
husbands' dust-covered clothes, generations of residents who
played as children near Grace's processing plants and others.
In public testimony and filings with the EPA, Grace has argued
that less-severe lung problems considered a sign of asbestos
disease can be confused with other health problems, such as
obesity. The company maintains that the science used by the EPA
to craft its proposal was flawed and has urged the agency to do
more research before moving forward.
The air is far cleaner in Libby today than it was when the EPA
first arrived, removing thousands of truckloads of contaminated
soil and replacing it with clean topsoil. But the agency has
acknowledged some people in Libby are still at risk, particularly
landscapers and others who stir asbestos-laden soil.
Grace reached a $250 million settlement with the EPA in 2008 to
cover government cleanup costs in Libby and the surrounding area.
The company remains responsible for cleaning up the mine site.
Company executives accused of knowing of the health problems in
the town were acquitted of federal criminal charges three years
ago.
Arthur Frank, an occupational physician who has testified against
Grace in asbestos litigation, said it was "disingenuous" for Grace
to now argue against the EPA proposal.
"I don't even see why Grace gets a say in this matter. They're the
ones that caused this disaster," said Frank, a professor at Drexel
University School of Public Health in Philadelphia. "The
situation in Libby specifically shows that minimal pleural disease
carries with it significant physiological changes in the lungs."
The EPA has also proposed that a lung condition known as pleural
thickening -- caused when asbestos fibers lodge in the lungs and
cause scarring -- is an indicator of asbestos exposure that can
lead to more harmful lung diseases including asbestosis.
Grace scientists have said medical professionals can easily
mistake similar ailments caused by being overweight for asbestos
exposure.
The EPA is to make a final decision on the standard for Libby
sometime next year.
Earlier this week, the agency's science advisory board reviewing
the proposal requested only limited revisions after Grace asked to
send it back to scientists for further study.
Agnes Kane, a member of the EPA advisory board and chair of its
Libby asbestos panel, said the government and Libby can't afford
to wait.
"We certainly can't sit around and wait for these types of studies
to be done," Kane said. "We have to use our best scientific
judgment. It is necessary to proceed with the remediation of that
Superfund site."
ASBESTOS UPDATE: Jury Returns 16-Vount Indictment v. SD Specialty
-----------------------------------------------------------------
The Buffalo News reports that a federal grand jury has returned a
16-count indictment against two asbestos removal contractors and
their companies on conspiracy charges and violations of the Clean
Air Act, U.S. Attorney William J. Hochul, Jr., announced Thursday,
Sept. 27.
Charged are former Buffalo Bills fullback Sean P. Doctor, 46, and
Raj Chopra, 48, both of Grand Island, and the companies they own
and operate, S.D. Specialty Services and Comprehensive Employee
Management.
Hochul said Doctor and S.D. Contracting also are charged with
substantive violations of the Clean Air Act on asbestos abatement
projects in Buffalo at the Roosevelt Park Shelter, the Graystone
Building on Johnson Park South and several vacant houses on Grant
Street between 2009 and 2011.
The indictment said asbestos waste also was improperly stored in a
large closed box container at company headquarters at 1815 Love
Road, Grand Island.
Doctor and Chopra are charged additionally with conspiring to
defraud the New York State Insurance Fund of about $195,000 in
workmen's compensation premiums by claiming that their employees
were clerical workers instead of asbestos workers.
ASBESTOS UPDATE: Death of Two Chico State U Workers Raises Concern
------------------------------------------------------------------
The Mesothelioma & Asbestos Awareness Center reports that the lung
cancer deaths of two employees at California's Chico State
University have others at the college wondering whether they're
headed for the same fate, and concerns over poor air quality and
exposure to asbestos are among the topics being discussed by the
co-workers of the deceased, both of whom worked in the same
building.
According to an article in the Chico News and Review,
administrative support coordinator Tami Harder Kilpatric died on
Sept. 16 at the age of 51 from complications due to lung cancer.
She worked in the Political Science Department located on the
sixth floor of the northwest corner of Butte Hall. Four months
earlier, sociology professor Andrew Dick died of atypical lung
cancer, just a year after he was diagnosed with the disease. Dick
also worked in the northwest corner of Butte Hall, but on the
seventh floor.
Co-workers of the deceased have begun to believe that the death of
their two colleagues from lung cancer, especially at such a young
age, is more than just a sad coincidence. Last week, Dean
Fairbanks, the Geography and Planning Department chairman,
expressed his concerns in an email sent to a number of his fellow
faculty members at Chico State, including Gayle Hutchinson, dean
of the College of Behavioral and Social Sciences. The email said:
"As we all know this building was built in the era when the iron
beams were spray coated with asbestos that is held in a fiberglass
matrix. It is fine if left alone, it will be stable. However,
with all the work on the HVAC [heating, ventilation and air
conditioning] system could there have been a disturbance with any
of the asbestos coatings?"
Hutchinson responded by scheduling a meeting with the Departments
of Environmental Health and Safety (EHS), Facilities Management
and Services, and Academic Affairs. The EHS director, Marvin
Platt, has announced that a forum for employees to express their
concerns has been tentatively scheduled to Oct. 9. He plans to
answer all questions at that time and wasn't available for an
interview with the News and Review.
However, Director of Public Affairs, Joe Wills, did release a
statement to the media in an attempt to quell the fears of faculty
and others who work in Butte Hall, a 7-story building constructed
in 1972 when asbestos was still used in a variety of building
materials such as insulation, cement, floor tiles, acoustic
ceilings, and more.
"Hundreds of thousands of buildings constructed during a certain
era contain asbestos, and they're perfectly safe unless certain
areas are disturbed," Wills said. He added that no construction,
on the HVAC system or otherwise, has occurred at Butte Hall in
recent times and, hence, no asbestos was disturbed.
When asbestos is disturbed, damaged or becomes old and crumbly, it
can release fibers that circulate through the air, prompting
inhalation by those working in the area. Individuals who inhale
fibers can develop lung cancer, mesothelioma, or other severe
respiratory problems.
But the age of the victims sent up the proverbial red flag, say
faculty members. Both Dick and Kilpatric were said to be in
excellent health before their diagnosis and they fall into an age
category far below that of the average lung cancer patient,
according to statistics released by the Centers for Disease
Control.
ASBESTOS UPDATE: 2nd Annual "Walk to Remember" Eyes Bigger Turnout
------------------------------------------------------------------
Paul Morden of The Sarnia Observer reports an organizer of second
annual Walk to Remember Victims of Asbestos says the fight isn't
over.
That will come when asbestos, a fire-resistant mineral fiber that
causes cancer and other illnesses, is completely banned in North
America, said Leah Nielsen.
She organized last fall's first walk with her sister Stacy Cattran
after losing their father, who worked at one time in Chemical
Valley, to mesothelioma, a cancer caused by exposure to asbestos.
Nielsen said they're hoping that the Saturday, Sept. 29 walk,
starting at 10:45 a.m. at the Dow People Place in Centennial Park,
will attract even more than the about 400 people who attended last
year to honor asbestos victims and call for an end to its use.
Nielsen lives in Utah and Cattran in Guelph but they travel to
Sarnia-Lambton to visit family and have become part of the
community's grassroots asbestos opposition, born from a high rate
of asbestos-related illness linked to its past use in local
industries.
Those activists, often the widows and children of asbestos
victims, were encouraged by the recent election of a Quebec
government that promised to cancel a loan intended to help reopen
an asbestos mine there.
That was followed by Ottawa's decision to drop its opposition to
an international agreement listing asbestos as a hazardous
material.
Nielsen said she was excited by those developments but added that
while asbestos isn't currently mined in Canada, stockpiles are
still exported to other countries, and products containing
asbestos, such as brake pads and concrete construction materials,
are still imported into Canada.
"Even if we stop asbestos production here," she said, "our workers
are still being endangered."
Several speakers will be part of this year's walk, including NDP
MP Pat Martin and asbestos opponents from India, Belgium, and the
U.S.
"There's still a lot to be done," Nielsen said. "So, we're hoping
for a really good turnout."
Nielsen said the international visitors will also tour Chemical
Valley Friday and participate in a meeting at the local
Occupational Health Clinic for Ontario Workers in the afternoon,
before attending a 6 p.m. candlelight vigil the group Victims of
Chemical Valley is holding in Centennial Park.
ASBESTOS UPDATE: S&P Revises Outlook on Owens-Illinois to Stable
----------------------------------------------------------------
Reuters reports that on Sept. 27, 2012, Standard & Poor's Ratings
Services revised its outlook on Perrysburg, Ohio-based-Owens-
Illinois Inc. to stable from negative. "At the same time, we
affirmed all existing ratings on the company, including our
'BB+' corporate credit rating," S&P said.
The outlook revision reflects Owens-Illinois' improved earnings in
the first half of 2012, and ongoing debt reduction. Credit
measures have improved over the past year, with funds from
operations (FFO)-to-total adjusted debt near 19% at June 30, 2012,
compared with 15% at June 30, 2011. S&P expects FFO-to-total
adjusted debt to continue to gradually improve in 2013. The
company expects earnings in the second half of 2012 to be affected
by challenging economic conditions in Europe. However, expected
free cash generation remains solid at $250 million in 2012, which
it will use to reduce debt. While challenging economic conditions
in Europe remain a concern, the company's earnings and cash flow
protection measures should benefit from demand growth in South
America and Asia and relatively flat to slightly improving volumes
in North America.
S&P's ratings on Owens-Illinois reflect the company's
"satisfactory" business risk profile and "significant" financial
risk profile. With annual sales of $7.4 billion, Owens-Illinois
is the world's largest manufacturer of glass containers, with
leading market positions in most regions. In 2011, 74% of its
sales were outside of North America. The company produces a wide
array of glass containers for beer, liquor, wine, food, tea, fruit
juices, and other nonalcoholic beverages.
Credit quality benefits from the company's long-standing
relationships with food and beverage customers, and it has annual
or multiyear supply contracts with many of them. Glass remains
the packaging of choice for popular upscale iced teas, beers,
wines, and certain beverages and foods that rely on its superior
marketing image and preservative qualities (by keeping out
oxygen).
Earnings for first six months of 2012 improved over the prior year
as higher pricing offset the impact of cost inflation, and
enhanced manufacturing and supply chain performance offset the
impact of sales volume declines. Specifically, shipments of glass
containers declined by 6% in the second quarter of 2012, compared
with the same period in 2011, driven mainly by lower wine bottle
sales in Southern Europe. In 2011, operating earnings were
adversely affected by inflation of energy and other costs
outpacing selling price increases, production and supply chain
issues in North America, and a significant drop in Australian
volumes for wine and beer.
S&P expects Owens-Illinois' volumes to gradually improve in 2013,
and price increases will offset raw material (mainly soda ash) and
energy costs inflation. EBITDA margins have improved to 18% from
16% in 2011, and pretax return on capital is about 12%. During
the past few years, Owens-Illinois has lowered its costs by
shutting down excess capacity and amending contract terms to
hasten the pass-through of energy cost changes in North America.
Continued debt reduction should support further improvement to the
company's credit measures. The key FFO-to-total adjusted debt
ratio was about 19% as of June 30, 2012, and near the target range
of 20% to 25% for the current ratings. As of June 30, 2012, total
adjusted debt was about $5.7 billion. (S&P adjusts debt to include
$864 million representing our estimate of post-tax asbestos-
related liabilities during the next 10 years, $684 million in
post-tax underfunded postretirement liabilities, and $167 million
in capitalized operating leases.)
The company's asbestos-related liabilities, which stem from a
business it exited in 1958, represent a moderate ongoing risk
factor. Owens-Illinois' reserve for future asbestos-related costs
reflects its estimated liability for approximately three years.
The company expects to conduct an annual review of its asbestos-
related liabilities and costs, and it anticipates that extending
its estimation period by one year (to maintain a three-year
estimated liability) each year will result in an annual charge.
The reserve totaled $471 million as of year-end 2011. The number
of pending asbestos-related lawsuits has been declining during the
past few years. Asbestos-related cash payments have also been
declining but remain substantial ($170 million in 2011, with the
company expecting $165 million in 2012).
ASBESTOS UPDATE: Ex-Shipwright Files Claim v Ministry of Defence
----------------------------------------------------------------
Somerset Guardian at Thisissomerset.co.uk reports that a former
Midsomer Norton shipwright who was exposed to harmful levels of
asbestos dust while more than 50 years ago has issued High Court
proceedings against the Ministry of Defence.
Peter Ellis, 72, is claiming more than GBP300,000 after alleging
the MoD acted negligently in exposing him to the dangerous
material while working in the Devonport shipyards.
Mr. Ellis, of Furlong Close, Midsomer Norton, was employed by the
MoD from September 1956 until 1963. Initially he worked as an
apprentice and was not exposed to asbestos, but by the time he had
completed his apprenticeship in 1961 he was working as a
shipwright and was exposed to the harmful material's dust and
fibers while refitting frigates and aircraft carriers including
HMS Eagle and HMS Belfast.
The claim says Mr. Ellis was also exposed to the dust while
working in close proximity to laggers who were stripping out old
asbestos and then applying new lagging -- the old lagging having
deteriorated over time. The new lagging was mixed near to where
he was working and sacks of asbestos were emptied into oil drums
and mixed with water to make a paste -- described in the claim as
a very dusty process.
Mr. Ellis was not provided with any respiratory protection.
The document says he was further showered with dust on a number of
occasions when he chiselled 6in square holes into the asbestos
ceilings of the ships so a welder could fix cable carrying metal
stirrups. He also used fibrous asbestos blankets when working
with the welder to prevent sparks causing damage.
The document says Mr. Ellis was never warned about the dangers of
exposure to asbestos dust and fibers and he was never given or
instructed in the use of any protective breathing equipment.
The claim says the defendant should have known that inhaling
asbestos dust might be dangerous and was negligent in not
protecting the claimant from the dust.
The documents add that the defendants failed to act in accordance
with Asbestos, Shipbuilding and Factories Regulations, failed to
provide Mr. Ellis with a safe environment in which to work, failed
to secure an adequately ventilated workplace, and failed to
provide him with approved respiratory protective equipment and
protective clothing.
Mr. Ellis first developed symptoms of the industrial lung disease
mesothelioma in August 2011 with breathlessness and back pain.
The claim says his condition will progress with increasing pain
and breathlessness and as of July 2012 his life expectancy has
been put at 12 months -- without this illness his life expectancy
would have been 16 years.
ASBESTOS UPDATE: Youngstown City Hall Annex Abatement Completed
---------------------------------------------------------------
Vindy.com reports that an asbestos-removal project at the
Youngstown City Hall Annex building is finished.
The city received $200,000 from the state to remove asbestos from
the 80-year-old building at 9 W. Front St.
The work was done by Safeco Environmental, a Marion, Pa., company
in about two weeks.
The 80-year-old building houses the city's community development
agency, and its litter control and recycling department as well as
the Mahoning and Columbiana Training Association.
The annex was built by the federal government and served as a post
office and federal courthouse before being bought by the city.
ASBESTOS UPDATE: Marijuana Beneficial in Some Mesothelioma Tumors
-----------------------------------------------------------------
Tim Povtak of The Mesothelioma Center reports that two researchers
at the California Pacific Medical Center in San Francisco believe
now that a chemical compound found in marijuana can be used to
stop the metastasis of certain aggressive cancers.
They have confirmed their theory in both laboratory and animal
testing. They are awaiting approval to begin a clinical trial in
humans.
Scientists Sean McAllister and Pierre Desprez believe the compound
cannabidiol (CBD), found in the marijuana plant, has the potential
to stop the spread of particular cancers. Their belief is based
upon the findings that CBD has the ability to stop the expression
of Id-1, a gene protein often responsible for the metastasis of
cancers.
They first researched Id-1 in the laboratory involving breast
cancer cells in 2007 and expanded their study more recently to
include prostate and brain cancer. They have not done any
research involving mesothelioma cancer, caused by exposure to
asbestos fibers, but believe their findings could be beneficial
there, also.
"If the mesothelioma expressed Id-1, I expect CBD would inhibit
tumor progression," McAllister told Asbestos.com in an e-mail.
Medical uses for marijuana have expanded in recent years. They
include helping to fight nausea, schizophrenia, convulsions and
neurological disorders. Usage by cancer patients, including those
with mesothelioma, has been limited mostly to palliative measures
and pain management.
Although marijuana remains a prohibited substance by federal law,
its medicinal use has been approved in almost half the states in
America. Voters in Colorado will decide in November on Amendment
64, which would legalize and regulate marijuana like alcohol for
adult use. If approved, Colorado would become the first state to
legalize marijuana and other states likely would follow its lead.
Desprez, a molecular biologist, has been studying Id-1 for 20
years, and the way it spreads cancer, often through the lymphatic
system or the bloodstream. McAllister has been studying the
effects of CBD, the non-toxic chemical, for many years. It was
their collaboration in San Francisco that prompted the findings.
"What we found was that his cannabidiol could essentially turn off
the Id-1," Desprez told the Huffington Post recently. "We've
found that cannabidiol works with many kinds of aggressive cancers
-- brain, prostate -- any kind in which these high levels of Id-1
are present."
The presence of Id-1 with mesothelioma remains cloudy with limited
research available on the topic. It may exist in some, but not
all, mesothelioma tumors. There was one study in 2008, though,
published in the Journal of Cancer Research, that definitively
linked malignant mesothelioma with Id-1.
For mesothelioma, the implication of the recent findings might not
be as significant as with other cancers. Mesothelioma, which has
a lengthy latency period (20 to 50 years) generally spreads
locally and rarely metastasizes until very late in the process.
Because CBD has been safely used with other ailments, Desprez and
McAllister are hoping for quick approval to begin a clinical
trial. They told the Huffington Post they already have begun
synthesizing the cannabidiol in the lab to avoid any legal
complications in getting a drug approved.
"We used injections in the animal testing, and are also using
testing pills," Desprez said. "You could never get enough
cannabidiol for it to be effective just from smoking."
Their 2007 study, using mice, concluded that CBD could stop the
aggressive spreading of breast cancer cells to other parts of the
body by blocking the expression of the Id-1 gene.
"CBD represents the first nontoxic exogenous agent that can
significantly decrease Id-1 expression in metastatic breast cancer
cells leading to the down-regulation of tumor aggressiveness,"
they wrote in 2007. "We report that CBD, a cannabinoid with a low
toxicity profile, could down-regulate Id-1 expression in
aggressive human breast cancer cells."
Although the use of medicinal marijuana is becoming more prevalent
-- and the latest study certainly could intensify its importance
-- the federal government has continued its attempt to trample the
rights of states that allow it.
In Los Angeles this week, federal prosecutors sued owners of three
properties that were housing medicinal marijuana collectives and
sent warning letters to 68 others shops that they were violating
federal laws by staying open.
And while Desprez is excited about his latest findings, he also is
well aware of the conflicting laws. Synthesizing the compound in
a lab allows it to be more potent, but it also avoids any
potential legal issues.
"It's a common practice," he said. "But hopefully, it will also
keep us clear of any obstacles seeking approval."
ASBESTOS UPDATE: Utica Mutual Cedes Liabilities to Nat'l Indemnity
------------------------------------------------------------------
Bill Kenealy of Business Insurance reports that Utica Mutual
Insurance Co. has entered into a reinsurance agreement to cede
most of its asbestos liabilities to National Indemnity Co., Utica
said Friday, Sept. 28.
Under the deal, Utica Mutual, a unit of New Hartford, N.Y.-based
Utica National Insurance Group, will cede a preponderance of its
asbestos exposures, from both current and future claims, to
National Indemnity, an Omaha, Neb.-based subsidiary of the
Berkshire Hathaway Inc.
Utica declined to disclose the amount of liabilities being ceded.
ASBESTOS UPDATE: Environment Agents Nets 10 in Toxic Waste Raid
---------------------------------------------------------------
WalesOnline.co.uk reports that 10 people have been arrested in
connection with the suspected illegal treatment, dumping and
trading of hazardous waste including asbestos, the Environment
Agency said.
A 60-strong team from the Environment Agency, backed by Avon and
Somerset Police, carried out the UK's largest ever hazardous waste
raid on several sites, in an investigation into alleged toxic
waste offences by an Avonmouth-based company.
The Health Protection Agency has been closely involved because of
the nature of the waste which includes asbestos and heavy metals,
and will continue to assess any potential risk to public health,
the Environment Agency said.
The 10 people arrested have been bailed pending further inquiries
to a date in January.
Andy Higham, head of the EA's national environment crime teams,
said: "The Environment Agency targets gravely negligent
organizations and organized criminals who risk damaging health,
livelihoods and the environment."
He added that the agency took waste crime extremely seriously.
ASBESTOS UPDATE: Mesothelioma Kills 62-Year-Old Cornwall Handyman
-----------------------------------------------------------------
The Cornish Guardian at Thisiscornwall.co.uk reports a 62-year-old
man died from a rare form of cancer caused by exposure to asbestos
over 24 years.
Joseph Peter Boulderstone died on June 1 this year of mesothelioma
at Mount Edgecumbe Hospice in Porthpean Road, St. Austell.
The disease develops from transformed cells originating in the
mesothelium, the protective lining that covers many of the
internal organs of the body.
An inquest in Truro on Tuesday, Sept. 25 heard Mr. Boulderstone
was exposed to asbestos at various times between 1965 and 1989
"without adequate protective clothing."
He had several jobs in this time, including as a maintenance and
gas fitter. After his diagnosis he had undergone chemotherapy,
but his condition deteriorated.
Coroner for Cornwall Emma Carlyon accepted the pathologist's
report and concluded Mr. Boulderstone's death was due to an
industrial disease, mesothelioma.
ASBESTOS UPDATE: Tunbridge Cinema Owners Dispel Fears Over Fibro
----------------------------------------------------------------
Paddock Wood Courier at tunbridgewellspeople.co.uk reports that
the owners of the Tunbridge Wells cinema site have moved to allay
fears over asbestos.
A van from a company specializing in removing hazardous waste was
parked behind the buildings this week, prompting concern over
public health.
Investment company The Carlyle Group, which jointly owns the site
with developer Bellhouse Joseph, confirmed asbestos was present in
the town centre buildings but said it would take the "necessary
precautions" during demolition.
ASBESTOS UPDATE: Maryland Court Rejects Plaintiffs Expert Opinion
-----------------------------------------------------------------
Guy W. Stilson of Low, Ball & Lynch reports that a recent decision
of the Maryland Court of Special Appeals may provide the basis for
persuasive argument in California courts by defendants seeking to
exclude certain expert testimony.
Joan Dixon died from pleural mesothelioma and her heirs pursued a
wrongful death claim. Plaintiffs offered Dr. Laura Welch as an
expert in asbestos epidemiology and proffered her opinion on
causation. While Ford did not dispute Dr. Welch's qualifications
as an expert, they objected to the methods and substance of her
causation opinion. The trial court denied Ford's motion, and Dr.
Welch testified "that mesothelioma in particular is a dose-
response disease. Every increasing [asbestos] dose increases the
likelihood of getting it," and "every exposure to asbestos is a
substantial contributing cause even if [Mrs. Dixon] had other
exposures." She also testified that every exposure to asbestos is
a "substantial contributing cause" of mesothelioma. The result
was a $15 million jury verdict.
The Court of Special Appeals reversed. The opinion concedes that
every exposure adds to the risk of disease, that the risk of
disease is proportional to the extent of the cumulative exposure,
and also that there is no "safe" amount of asbestos exposure.
However, decreasing exposure implies only decreasing risk. The
Court found the crucial question to be: what is the extent to
which various asbestos exposures increase the risk of disease? In
a legal context, the issue is whether the plaintiff can show that
the exposure to asbestos caused by a particular defendant was
sufficiently "substantial" to support liability. "Substantiality"
is essentially a burden of proof. In order for an expert's
opinion on this issue to be helpful, the expert's testimony must
help the finder of fact decide whether the elevated risk in any
particular case was "substantial."
The Dixon court determined that Dr. Welch's opinions were not
helpful and should have been excluded. The Court reasoned that
"an infinitesimal change in risk cannot suffice to maintain a
cause of action in tort" and therefore, Dr. Welch's opinion that
Ford had caused an exposure to asbestos in an amount that was
"more than nothing" was not helpful. Dr. Welch's statement that
the exposure and increase in risk were "substantial" was not a
scientific conclusion, but was simply a statement of her personal
opinion in an area reserved for determination by the jury. Rather
than expressing her personal opinion, Dr. Welch's testimony should
have been aimed at bridging the "analytical gap" between general
epidemiological research and the situation of any particular
plaintiff. Although epidemiology is a body of science devoted to
making estimates of general causation among a population of
people, actual causation in any particular human being lies
outside the realm of epidemiology. Experts can bridge the gap "by
applying the facts of the case to existing epidemiological
research about general causation." To do this, the expert "must
estimate exposure and risk with reasonable scientific or medical
certainty." Dr. Welch "merely implied that there was some non-
zero probability that Mrs. Dixon was exposed to asbestos from
Ford's products, and that this resulted in some non-zero increase
in her risk of contracting mesothelioma. As such, Dr. Welch's
conclusion that the risk and probability of causation was
'substantial' provided the jury with nothing more than her
subjective opinion of 'responsibility,' not scientific evidence of
causation." As the expert's testimony was insufficient to support
causation, the Court of Appeal reversed and remanded the matter
for a new trial.
Comment And Evaluation
In Maryland, as in California, it is not enough to show the
defendant caused a negligible exposure to asbestos. Instead, the
plaintiff must show the defendant caused a substantial exposure.
Determination of what is "substantial" is left to the jury.
Many plaintiff experts offer testimony similar to that which Dr.
Welch offered in Dixon: that any exposure increased the risk to
some degree, and that since the person developed an asbestos-
related disease, that increase must be considered to have been
substantial. Defendants argue that plaintiff experts should not
be permitted to testify as to what is or is not a "substantial"
exposure, but should instead be limited to testimony relating to
the factors which will allow a jury to make the substantiality
determination. These factors include frequency of exposure,
proximity of the asbestos product to the injured person,
proportion of exposure caused by a Defendant as compared to total
exposures, and consideration of other potential causative factors,
such as smoking in a lung cancer case.
The Maryland Court of Special Appeals rejected the "any amount is
substantial" testimony as being unscientific and provided a well-
reasoned analysis for this conclusion. Defendants now have
another well-reasoned case to help persuade trial courts to reject
personal opinions of plaintiff experts. The testimony of any
acknowledged expert must be limited to opinions that have a sound
scientific basis.
For the full decision see:
http://mdcourts.gov/opinions/cosa/2012/0536s11.pdf
ASBESTOS UPDATE: Departed Victims of Asbestos Remembered
--------------------------------------------------------
Lynn Bruner pinned a snapshot of her dad, Ted Luckham, to a
memorial board set up at the Dow People Place just before
Sept. 29, Saturday's Walk to Remember Victims of Asbestos, Paul
Morden of The Sarnia Observer reports.
"I miss him deeply," the Courtright residents said. Luckham died
in 1999, at age 69, of mesothelioma, a cancer caused by exposure
to asbestos.
Bruner said the Imperial Oil Worker only lived long enough to know
one of his five grandsons.
Others in the crowd of 525 or more at the second annual walk in
Sarnia carried photos of loved ones lost to asbestos-caused
illness, wore T-shirts honoring victims and carried signs calling
for the mineral fiber to be banned in Canada.
They included Faye Voisey and other relatives of Wayne Lightfoot,
another Imperial Oil worker, who died at age 72 of mesothelioma.
"He said they wrapped the pipes, with their bare hands, with the
asbestos," Voisey said. "It was a very awful death."
Leah Nielsen and Stacy Cattran organized the walk after they lost
their father, who worked at one time in Chemical Valley, to
mesothelioma. They've joined with the long-standing Victims of
Chemical Valley group to call on Canada to ban asbestos.
Activists celebrated recently when a newly-elected provincial
government in Quebec pledged to withdraw a loan aimed at
restarting an asbestos mine there but Cattran told the crowd at
Saturday's walk that the fight isn't finished.
She repeated the sisters' call for a public inquiry into Canada's
role as a supporter of the asbestos industry.
"I want what we all want," she said, "justice for victims and jail
time for perpetrators."
The walk attracted participants and speakers from across North
America, and overseas.
Pat Martin, an NDP MP from Winnipeg, said "I hang my head in
shame" because of Canada's role as an asbestos exporter and
"cheerleader" for the industry. "Our country's position on
asbestos is morally and ethically reprehensible and can't be
tolerated."
Eric Jonckheere, co-president of the Belgium association for
asbestos victims, told the crowd how his parents and two of his
brothers died because of the asbestos carried home on his father's
work clothes. "Most of the asbestos I have in my lungs is from
Canada," he said. "Asbestos is a killer. It's killing over
200,000 people a year.
Jonckheere met Nielsen and Cattran at a conference they attended
following last year's walk in Sarnia. "I promised to them if they
ever organized a second march, I would come," he said.
Barry Castleman, an environmental scientist from Maryland, Dr.
Tushar Joshi, who has been fighting against asbestos use in his
native India, and Sarnia Mayor Mike Bradley also spoke.
ASBESTOS UPDATE: Nikau Hired to Demolish Christchurch Bldgs
-----------------------------------------------------------
The Press' John Mccrone reports Nikau Contractors in Auckland, New
Zealand, is working on the demolition of buildings in Christchurch
that were destroyed by the February 2011 earthquake.
According to the report, Helina Stil, health and safety manager of
Nikau Contractors, said "For every 10 you employ to do an asbestos
job, eight will find it too difficult. There are a lot of people
who decide there's an easier way of earning money and will chuck
in the towel after just a couple of hours."
ASBESTOS UPDATE: Paulerspury Storage With Toxic Materials Burns
---------------------------------------------------------------
Nick Spoors of Northampton Chronicle and Echo reports that five
fire crews were called to a storage unit on a Northamptonshire
business park in the morning of Saturday, Sept. 29.
The 10 by 80 meters single storey unit in Pury Hill Business Park,
off Pury Road, Paulerspury, contained paint and thinners and also
had an asbestos-lined roof.
Northamptonshire Fire and Rescue Service said the original crews
had swapped shifts at mid morning having first been called out
shortly after 5 am.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
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