/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130118.mbx C L A S S A C T I O N R E P O R T E R Friday, January 18, 2013, Vol. 15, No. 13 Headlines ADVANCE AMERICA: Sued For Sending Misleading Collection Letters ALLEGHENY COUNTY: Faces Class Action Over Property Assessment ASSOCIATED CUT: Did Not Pay Employees' Overtime Wages, Suit Says BABU FOODS: Faces Suit Over FLSA Violations in New York BASF CATALYSTS: N.J. Court Dismisses Asbestos Class Action Suit BUGABOO INT'L: Recalls 50,740 Strollers Due Fall & Choking Risks CHINA-BIOTICS: "Hill" and "Casper" Suits Consolidated in October CLEAN HARBORS: Class Cert. Hearing in Alabama Suit This Month CLEAN HARBORS: In Talks to Settle "Smith" and "Brooks" Claims CLEAN HARBORS: Trial in Calif. Wage and Hour Suit Set for Feb. CONAGRA FOODS: Final Hearing on $4.4-MM Settlement on March 26 DENTON COUNTY, TX: Faces FLSA Violation Class Action Suit ENERGYSOLUTIONS: Faces Suit Over Proposed Sale to Energy Capital EPOCRATES: Being Sold to Athenahealth for Too Little, Suit Claims FAMILY DOLLAR: Awaits Appellate Court Decision in "Scott" Suit FAMILY DOLLAR: Continues to Defend Wage and Hour Class Suits GLENN'S MARKET: Recalls 2,532 Pounds of Raw Ground Beef Products HEWLETT PACKARD: Faces Class Action Over Labor Law Violations KPMG LLP: Rosen Law Firm Files Securities Class Action KTM NORTH: Recalls 1,300 Enduro Motorcycles Over Fuel Leak Hazard MATCH.COM: Faces Class Suit For Sending Spam E-mails MCMORAN EXPLORATION: Faces Merger-Related Class Suit in Delaware MILO'S KITCHEN: Recalls Chicken Jerky and Grillers Dog Treats MOSAIC CO: Petition for Review in Potash Antitrust Suit Pending PENSION PLAN: Sued for Violating ERISA's Anti-Cutback Provision SAMSUNG SDI: Faces Another Antitrust Class Suit in California SILVERCORP: Faces Securities Class Action Lawsuit STANDARD FIRE: Sup. Ct. Considers Monetary Limits on Class Actions STAPLES THE OFFICE: Blumenthal Nordrehaug Files Class Action STRUCTURAL PROTECTION: Painter Files Overtime Suit in New Orleans TARGET CORP: Recalls 42,000 Girls' Circo Fleece Blanket Sleepers TARGET CORP: Recalls 560,000 Children's Two-Piece Pajama Sets WELLS FARGO: Wachovia Suit Settlement Class Members File Suit WEST COVINA AUTO: FAA Preempts Prohibition Against Class Waivers Asbestos Litigation ASBESTOS UPDATE: Joy Global Has 2,500 Pending Asbestos Cases ASBESTOS UPDATE: Navistar Int'l. Continues to Defend Fibro Claims ASBESTOS UPDATE: Ecology Unit Still Faces Draft Consent Order ASBESTOS UPDATE: Esterline Still Subject to Potential Liabilities ASBESTOS UPDATE: Toro Company Still Subject to Asbestos Claims ASBESTOS UPDATE: Piedmont Natural Gas Center Still Has Asbestos ASBESTOS UPDATE: Chase Corp. Still a Defendant in "Scott" Suit ASBESTOS UPDATE: Discovery Ongoing in "Jansen" Suit in Wisconsin ASBESTOS UPDATE: BlueLinx Still Potentially Liable for Claims ASBESTOS UPDATE: Hickok Still Pursuing Dismissal of Becker Suit ASBESTOS UPDATE: Ct. Grants Owners Insurance' Summary Judgment Bid ASBESTOS UPDATE: NJ Court Dismisses Class Suit v. BASF, Cahill ASBESTOS UPDATE: Court Says Death Ends Atty.-Client Relationship ASBESTOS UPDATE: NY Ct. Junks Bid to Dismiss Ex-Mechanic's Suit ASBESTOS UPDATE: NY Ct. Awards $22,600 in Fees to Lockheed, et al. ASBESTOS UPDATE: AHL Dropped as Defendant in Exposure Suit ASBESTOS UPDATE: Calif. Ct. Affirms Judgment Favoring Thomas Dee ASBESTOS UPDATE: 59 Cases Consolidated With Inmates' Exposure Suit ASBESTOS UPDATE: Flintkote Plan Confirmed, ITCAN Objection Junked ASBESTOS UPDATE: TIG Insurance's Bid for Setoff Declaration Junked ASBESTOS UPDATE: Ct. Allows Legal Malpractice Claims v. 2 Firms ASBESTOS UPDATE: Tex. Ct. Affirms Ruling in Legal Malpractice Suit ASBESTOS UPDATE: Appeal in Whistleblower Suit v. Ysleta ISD Junked ASBESTOS UPDATE: Court Reverses Forum Ruling v. Illinois Central ASBESTOS UPDATE: Court Grants Successor's Summary Judgment Bid ASBESTOS UPDATE: 9th Cir. Affirms Clean Air Act Offense Conviction ASBESTOS UPDATE: NY Court Retains Jurisdiction Over Successor Co. ASBESTOS UPDATE: Ohio Court Grants Inmates' Request for Discovery ASBESTOS UPDATE: Va. High Ct. Pens Ruling on Limitations Statute ASBESTOS UPDATE: Canterbury Health Boss Questions Fibro Encasement ASBESTOS UPDATE: Mesothelioma Widow Gets GBP145K From British Rail ASBESTOS UPDATE: North Cheam Firm Cited for Fibro Law Breaches ASBESTOS UPDATE: Abatement Cost May Derail "Moving Ohio" Project ASBESTOS UPDATE: Bondex's Lung Expert Defends Bias Allegations ASBESTOS UPDATE: Ohio School Cited For Exposing Kids to Fibro ASBESTOS UPDATE: 1,563 Madison Fibro Exposure Cases Filed in 2012 ASBESTOS UPDATE: Claimants, Debtors Are Worlds Apart On Estimates ASBESTOS UPDATE: Cleanup Need Halts Davis County Library Project ASBESTOS UPDATE: Borg-Warner Corp, 123 Others Face Meso Lawsuit ASBESTOS UPDATE: Lowell Housing Sponsors Workers' Fibro Tests ASBESTOS UPDATE: Swansea Firm, Contractor Cited for HSE Violations ASBESTOS UPDATE: Chevron USA, Owens-IL Case Moved to Houston MDL ASBESTOS UPDATE: Brown U Professor Tells McGill U to Retract Study ASBESTOS UPDATE: Columbia Loses Appeal Over $4MM Integrity Accord ********* ADVANCE AMERICA: Sued For Sending Misleading Collection Letters --------------------------------------------------------------- Addie Caine, on behalf of herself and all others similarly situated v. Advance America Cash Advance Centers of California, LLC, d/b/a Advance America Cash Advance, and Does 1-10, Case No. 1-12-CV-237376 (Calif. Super. Ct., Santa Clara Cty., December 7, 2012) seeks redress for the Defendant's alleged violations of the Rosenthal Fair Debt Collection Practices Act, which prohibits debt collectors from engaging in abusive, deceptive, and unfair practices. The Plaintiff alleges that the Defendant's collection letter sent to her made false, deceptive and misleading statements in an attempt to collect a debt or collect payment on a debt. She adds that the Defendant created a false sense of urgency. Ms. Caine was a resident of the city of San Jose, County of Santa Clara, California at the time the collection letters were sent. Advance America is a Delaware corporation based in Spartanburg, South Carolina. The Defendant regularly engages in the business of collecting debts on behalf of itself in California. The Doe Defendants are persons or entities whose true names and capacities are presently unknown to the Plaintiffs. The Plaintiff is represented by: Ronald Wilcox, Esq. 1900 The Alameda, Suite 530 San Jose, CA 95126 Telephone: (408) 296-0400 Facsimile: (408) 296-0486 E-mail: ronaldwilcox@post.harvard.edu ALLEGHENY COUNTY: Faces Class Action Over Property Assessment ------------------------------------------------------------- KDKA reports that some Allegheny County property owners who are upset they lost their assessment appeal are seeking to join a class-action lawsuit. They say they paid hundreds of dollars to have their home appraised, only to have the appraisal rejected. A lawsuit filed by Joseph Stivorich and 10 others contends that Allegheny County and its Property Assessment Appeals Board ignores the property values certified by state-approved real estate appraisers. "I didn't accomplish anything by going through all the -- monies I spent, the trip into town, nothing. I have nothing to show for it, and I'm very disappointed," Mr. Stivorich told KDKA money editor Jon Delano. Mr. Stivorich spent nearly $200 for an appraisal -- that valued his Shaler home thirty-thousand dollars less than the county did -- but that value was ignored by hearing officers. He's not alone. "They made no changes at all. It was the same, which I was appalled," said Melaine Kachmar of Reserve. After her home was reassessed from $47,000 to $127,000, Ms. Kachmar hired an appraiser. "She appraised the property at $55,000, which I thought was fair," she said. But with no other evidence to the contrary, the hearing office rejected the appraiser's value. When homeowners are hit with higher-than-expected reassessment values on their homes, it's only natural that they would go out and hire a state-certified appraiser to get a real value for their home. But what really irks them is that when hearing officials reject that number, they give no explanation of why. "Sometimes they just pick a number out of the air from what we can tell because there doesn't seem to be any basis for the hearing officer to determine another value," noted attorney David Huntley, who filed the lawsuit. The county says they have the right to reject an appraisal. But Mr. Huntley says, ironically, many of the appraisers hired by property owners are recommended by the county. "How is the citizenry going to have any confidence in the fairness of the system when this sort of thing goes on," he added. ASSOCIATED CUT: Did Not Pay Employees' Overtime Wages, Suit Says ---------------------------------------------------------------- Roberto Olivares, on behalf of himself and others similarly situated v. Associated Cut Flower Co., Inc. and John Kantakis, Case No. 1:12-cv-08914-RA (S.D.N.Y., December 7, 2012) seeks recovery of (i) unpaid overtime, (ii) liquidated damages, and (iii) attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. Mr. Olivares contends that at all relevant times, the Defendants knowingly and willfully failed to pay him his lawfully earned overtime wages in direct contravention of the FLSA and the New York Labor Law. He adds that the Defendants also knowingly and willfully failed to pay him his lawfully earned "spread of hours" premium in direct contravention of the New York Labor Law. Mr. Olivares is a resident of Queens County, New York. Associated Cut Flower is a New York domestic business corporation. Mr. Kantakis is the chairman or chief executive officer of the Company. He exercised control over the terms and conditions of Plaintiff's employment and those of similarly situated employees. The Plaintiff is represented by: Robert L. Kraselnik, Esq. LAW OFFICES OF ROBERT L. KRASELNIK, PLLC 271 Madison Avenue, Suite 1403 New York, NY 10016 Telephone: (212) 576-1857 Facsimile: (212) 576-1888 E-mail: info@wagecases.com BABU FOODS: Faces Suit Over FLSA Violations in New York ------------------------------------------------------- Victor Maldonado, on behalf of himself and others similarly situated v. Babu Foods Inc. d/b/a Hudson Diner, Rajiv Chowdhury, and Humayan Sorker, Case No. 1:12-cv-08895 (S.D.N.Y., December 7, 2012) alleges that pursuant to the Fair Labor Standards Act, Mr. Maldonado is entitled to recover from the Defendants: (1) unpaid minimum wages; (2) unpaid overtime compensation; (3) liquidated damages; (4) pre- and post-judgment interests; and (5) attorneys' fees and costs. Mr. Maldonado alleges that during the relevant six year limitations period beginning in December 2006 and continuing through approximately November 2007, he was not paid proper minimum wages or overtime compensation. Mr. Maldonado is a resident of Bronx County, New York. He was previously employed by the Defendants. Hudson Diner is a domestic business corporation in New York. The Individual Defendants are owners, officers and directors of the Company. The Plaintiff is represented by: Justin Cilenti, Esq. 708 Third Avenue, 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: jcilenti@jcpclaw.com BASF CATALYSTS: N.J. Court Dismisses Asbestos Class Action Suit --------------------------------------------------------------- Defendants BASF Catalysts LLC, Cahill Gordon & Reindel LLP, Howard G. Sloane, Ira J. Dembrow and Scott A. Martin, Thomas D. Halket, Arthur A. Dornbusch II, and Glen Hemstock filed several motions to dismiss an amended class action complaint filed in a putative class action, which seeks nationwide relief for the alleged misconduct of BASF and its then-counsel, Cahill, in connection with thousands of asbestos exposure lawsuits filed by individuals primarily in state courts throughout the United States over a period of more than 25 years. In a Dec. 12, 2012, decision, Judge Stanley R. Chesler of the U.S. District Court for the District of New Jersey dismissed the entire Amended Complaint as barred by the Anti-Injunction Act and for failure to state a claim upon which relief may be granted. Judge Chesler held that, first, there is no indication that Plaintiffs could cure the various impediments and deficiencies preventing the claims in the Amended Complaint from surmounting the Defendants' motion to dismiss; and, second, the Amended Complaint was in fact filed in response to the Defendants' initial round of motions to dismiss in an attempt to address those challenges. Plaintiffs, in short, have already explored revising their claims and nevertheless, have failed to construct a legally sufficient pleading, Judge Chesler ruled. The case is KIMBERLEE WILLIAMS, et al., Plaintiffs, v. BASF CATALYSTS LLC, et al., Defendants, Civil Action No. 11-1754 (SRC)(D. N.J.). A copy of Judge Chesler's Decision is available at http://is.gd/WCBQNUfrom Leagle.com. BUGABOO INT'L: Recalls 50,740 Strollers Due Fall & Choking Risks ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission and Health Canada, in cooperation with importer, Bugaboo Americas, of El Segundo, California, and manufacturer, Bugaboo International B.V., of Amsterdam, The Netherlands, announced a voluntary recall of about 46,300 Bugaboo Cameleon and Bugaboo Donkey Model Strollers in the United States of America and 4,440 in Canada. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. A button on the stroller's carrycot/seat carry handle can become disengaged and cause the handle to detach, posing fall and choking hazards to young children. Bugaboo has received 58 reports of carry handles detaching. No injuries have been reported. This recall involves the carry handles on Bugaboo Cameleon and Bugaboo Donkey model strollers with detachable carrycots/seats. The strollers were sold with a base, sun canopy and other accessories in various colors. A fabric tag on the side of the sun canopy has Bugaboo and the model name. Strollers included in the recall have a serial number that falls within the range listed below. Serial numbers are printed on the stroller's chassis, located under the carrycot/seat. Bugaboo Cameleon * Serial Number 04011090900001 to 04031101009999 * Serial Number 08011090900001 to 08021100800386 * Serial Number 140100093600531 to 140103123350418 Bugaboo Donkey * Serial Number 170101105300001 to 170104130900500 Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13092.html The recalled products were manufactured in China and sold at Buy Buy Baby, Neiman Marcus, Nordstrom, Toys R Us and other baby product stores nationwide, online at Bugaboo.com and other online retailers. The Bugaboo Cameleon was sold between September 2009 and June 2012 for about $980. The Bugaboo Donkey was sold from January 2011 through December 2012 for between $1,200 and $1,600. Consumers should immediately remove the carry handle from the strollers and contact Bugaboo for a free replacement handle. Consumers can continue to use the strollers while awaiting the replacement handle. Bugaboo International may be reached at (800) 460-2922, from 7:00 a.m. to 4:00 p.m. Pacific Time Monday through Friday, or online at http://www.bugaboo.com/and click on "Important Quality Initiative" for more information. Consumers can e-mail the firm at serviceus@bugaboo.com CHINA-BIOTICS: "Hill" and "Casper" Suits Consolidated in October ---------------------------------------------------------------- Two shareholder class action lawsuits pending in California were consolidated last October, according to China-Biotics, Inc.'s January 4, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2012. The Company and certain of its current and former officers and directors have been named as defendants in three putative shareholder class action lawsuits, one in the United States District Court for the Central District of California (Mohapatra v. China-Biotics, Inc., et al., No. 10-cv-6954 (C.D. Cal.), the "Mohapatra case"), and two in the United States District Court for the Southern District of New York (Hill v. China-Biotics, Inc., et al., No. 10-cv-7838 (S.D.N.Y.), the "Hill case", and Casper v. Jinan, et al, No. 12-cv-4202 (S.D.N.Y), the "Casper case"). After certain shareholders filed motions for appointment as lead plaintiff, the plaintiff in the Mohapatra case voluntarily dismissed its case and the plaintiff in the Hill case, together with another shareholder, were appointed as lead plaintiffs. The lead plaintiffs filed an amended complaint in which they allege that the defendants violated Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making material misstatements or failing to disclose certain material information regarding, among other things, the Company's financial condition, operations, and future business prospects, and the quality, nature, and quantity of the Company's retail outlets. The lead plaintiffs seek to represent a class of shareholders who bought the Company's securities between July 10, 2008, and August 27, 2010. On August 18, 2011, the Company filed a motion to dismiss the lead plaintiffs' amended complaint. The court dismissed the lead plaintiffs' Section 11 claim, but gave them leave to replead. The court did not rule on the motion to dismiss the Section 10(b) claim. On January 9, 2012, the lead plaintiffs filed a second amended complaint that included a new named plaintiff and new allegations for the Section 11 claim. On February 27, 2012, the Company filed a motion to dismiss the amended Section 11 claim. Both that motion and the original motion to dismiss the Section 10(b) and Section 20(a) claims are currently pending before the court. The Company intends to defend this action vigorously. In the Casper case, the plaintiff alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making material misstatements and seeks to represent a class of stockholders who bought the Company's securities between February 9, 2011, and July 1, 2011. On October 18, 2012, the Hill case and the Casper case were consolidated, but no consolidated amended complaint has yet been filed. The Company says it intends to defend this action vigorously. CLEAN HARBORS: Class Cert. Hearing in Alabama Suit This Month ------------------------------------------------------------- A hearing on the request for class certification in the lawsuit in Alabama involving a subsidiary of Clean Harbors, Inc., is set for January 2013, according to the Company's January 4, 2013, Form 8-K filing with the U.S. Securities and Exchange Commission. On December 28, 2012, Clean Harbors, Inc. ("Clean Harbors") completed its previously announced proposed acquisition of Safety- Kleen, Inc. ("Safety-Kleen") through a merger of CH Merger Sub, Inc., a wholly-owned subsidiary of Clean Harbors, into Safety- Kleen, with Safety-Kleen surviving such merger as a wholly-owned subsidiary of Clean Harbors. Safety-Kleen, a Delaware corporation headquartered in Richardson, Texas, is a leading provider of parts cleaning and environmental services and the largest re-refiner and recycler of used oil in North America. The acquisition was completed in accordance with the Agreement and Plan of Merger dated as of October 26, 2012 (the "Merger Agreement") among Safety-Kleen, Clean Harbors and Merger Sub, which was an exhibit to Clean Harbors' Report on Form 8-K filed with the Securities and Exchange Commission (the "SEC") on October 31, 2012, and which is incorporated into this report by reference. Under the Merger Agreement, Clean Harbors paid an all-cash purchase price for Safety-Kleen of approximately $1.25 billion, plus an adjustment of $7.3 million for the amount by which Safety- Kleen's working capital (excluding cash) on the closing date exceeded $50.0 million as of December 28, 2012. Clean Harbors financed such purchase through a combination of $300 million of existing cash, $368 million in net proceeds from Clean Harbors' recently completed public offering of 6.9 million shares of Clean Harbors common stock, and $589 million in net proceeds from Clean Harbors' recently completed private debt offering of $600 million of 5.125% senior unsecured notes due 2021. In October 2010, two customers filed a complaint, individually and on behalf of all similarly situated customers in the State of Alabama, in state court in Alabama alleging that Safety-Kleen improperly assessed fuel surcharges and extended area service fees. Safety-Kleen disputes the basis of the claims on numerous grounds, including that Safety-Kleen has contracts with numerous customers authorizing the assessment of such fees and that in cases where no contract exists Safety-Kleen provides customers with a document at the time of service reflecting the assessment of the fee, followed by an invoice itemizing the fee. It is Safety-Kleen's position that it had the right to assess fuel surcharges, that the customers consented to the charges and that the surcharges were voluntarily paid by the customers when presented with an invoice. The lawsuit is still in its initial stages of discovery. A hearing on the request for class certification is set for January 2013. In late June 2012, a nearly identical lawsuit was filed by the same law firm on behalf of a California-based customer. The lawsuit contends, under various state law theories, that Safety-Kleen impermissibly assessed fuel surcharges and late payment fees, and seeks certification of a class of California customers only. Safety- Kleen will assert the same defenses as in the Alabama litigation. Safety-Kleen is unable to ascertain the ultimate aggregate amount of monetary liability or financial impact with respect to these matters as of December 31, 2011. CLEAN HARBORS: In Talks to Settle "Smith" and "Brooks" Claims ------------------------------------------------------------- Clean Harbors, Inc. disclosed in its January 4, 2013, Form 8-K filing with the U.S. Securities and Exchange Commission that it is in negotiations to resolve wage and hour claims in the "Smith" and "Brooks" suits filed against its unit. On December 28, 2012, Clean Harbors, Inc. ("Clean Harbors") completed its previously announced proposed acquisition of Safety- Kleen, Inc. ("Safety-Kleen") through a merger of CH Merger Sub, Inc., a wholly-owned subsidiary of Clean Harbors, into Safety- Kleen, with Safety-Kleen surviving such merger as a wholly-owned subsidiary of Clean Harbors. Safety-Kleen, a Delaware corporation headquartered in Richardson, Texas, is a leading provider of parts cleaning and environmental services and the largest re-refiner and recycler of used oil in North America. The acquisition was completed in accordance with the Agreement and Plan of Merger dated as of October 26, 2012 (the "Merger Agreement") among Safety-Kleen, Clean Harbors and Merger Sub, which was an exhibit to Clean Harbors' Report on Form 8-K filed with the Securities and Exchange Commission (the "SEC") on October 31, 2012, and which is incorporated into this report by reference. Under the Merger Agreement, Clean Harbors paid an all-cash purchase price for Safety-Kleen of approximately $1.25 billion, plus an adjustment of $7.3 million for the amount by which Safety- Kleen's working capital (excluding cash) on the closing date exceeded $50.0 million as of December 28, 2012. Clean Harbors financed such purchase through a combination of $300 million of existing cash, $368 million in net proceeds from Clean Harbors' recently completed public offering of 6.9 million shares of Clean Harbors common stock, and $589 million in net proceeds from Clean Harbors' recently completed private debt offering of $600 million of 5.125% senior unsecured notes due 2021. In October 2010, a then current employee (Smith) filed a complaint, individually and on behalf of all similarly situated employees of Safety-Kleen located at the Dolton Recycle Center, in the United States District Court for the Eastern District of Illinois alleging that Safety-Kleen violated wage and hour laws by failing to pay employees for periods when they were donning and doffing work uniforms and personal protective equipment ("PPE"), walking between the employee locker room and time clock and showering. The plaintiffs contend that when unpaid time is added to their weekly schedule, they worked unpaid overtime hours. Safety-Kleen disputed that this time is legally compensable but, in any event, pays the employees an additional quarter hour per day beyond their timecard and provides a 30-minute paid lunch period that Safety-Kleen is not legally required to pay. Together, these voluntary payments and credits far exceed the amount of time the employees claim they are entitled to for donning and doffing of PPE, walking between the locker room and time clock and showering. Safety-Kleen opposed the plaintiffs' request to certify a class but the Court conditionally granted certification. After notice to all potential class members, only 12 individuals joined the lawsuit as class members. Following extensive discovery, Safety-Kleen moved to dismiss the case as not legally supportable and to decertify the class. In January 2012, the Court denied Safety-Kleen's motion to dismiss but granted Safety-Kleen's motion to decertify the class, allowing the original plaintiff to proceed individually and requiring the former class members to file individual lawsuits if they wanted to proceed. Ten of the 12 dismissed class members filed individual lawsuits following dismissal of the class, while two former class members opted not to proceed with the lawsuit. Trial of the originally filed claim was held between July 9 and July 11, 2012, with the jury finding for the plaintiff and awarding him $1,528. A request for attorney's fees will be made and Safety-Kleen is in negotiations to resolve that aspect of the claim as well as the individual claims filed by the former class members after decertification. In October 2011, a second class lawsuit (Brooks) involving a broader potential class was filed by the same law firm and alleging the same violations as the Smith case. Safety-Kleen continues to dispute the merits of this second class action but is in negotiations to resolve this matter with the other cases. Safety-Kleen is unable to ascertain the ultimate aggregate amount of monetary liability or financial impact with respect to these matters as of December 31, 2011. CLEAN HARBORS: Trial in Calif. Wage and Hour Suit Set for Feb. -------------------------------------------------------------- Trial of an individual wage and hour claim in California against a subsidiary of Clean Harbors, Inc. has been set for February 2013, according to the Company's January 4, 2013, Form 8-K filing with the U.S. Securities and Exchange Commission. On December 28, 2012, Clean Harbors, Inc. ("Clean Harbors") completed its previously announced proposed acquisition of Safety- Kleen, Inc. ("Safety-Kleen") through a merger of CH Merger Sub, Inc., a wholly-owned subsidiary of Clean Harbors, into Safety- Kleen, with Safety-Kleen surviving such merger as a wholly-owned subsidiary of Clean Harbors. Safety-Kleen, a Delaware corporation headquartered in Richardson, Texas, is a leading provider of parts cleaning and environmental services and the largest re-refiner and recycler of used oil in North America. The acquisition was completed in accordance with the Agreement and Plan of Merger dated as of October 26, 2012 (the "Merger Agreement") among Safety-Kleen, Clean Harbors and Merger Sub, which was an exhibit to Clean Harbors' Report on Form 8-K filed with the Securities and Exchange Commission (the "SEC") on October 31, 2012, and which is incorporated into this report by reference. Under the Merger Agreement, Clean Harbors paid an all-cash purchase price for Safety-Kleen of approximately $1.25 billion, plus an adjustment of $7.3 million for the amount by which Safety- Kleen's working capital (excluding cash) on the closing date exceeded $50.0 million as of December 28, 2012. Clean Harbors financed such purchase through a combination of $300 million of existing cash, $368 million in net proceeds from Clean Harbors' recently completed public offering of 6.9 million shares of Clean Harbors common stock, and $589 million in net proceeds from Clean Harbors' recently completed private debt offering of $600 million of 5.125% senior unsecured notes due 2021. Three separate class action lawsuits have been filed in California courts against Safety-Kleen since November 2005 alleging unpaid overtime, wages for break and meal periods, violations of state wage statement requirements or similar claims. The named plaintiffs are former customer service representatives ("CSRs") of Safety-Kleen and the putative classes appear to include all CSRs and "Tanker Truck Drivers" employed by Safety-Kleen in California since November 2002. The two later-filed cases originally filed in Southern California, were transferred to the United States District Court, Northern District of California, before the same judge as the first filed case. In July 2008, Safety-Kleen was granted summary judgment in the first case on the primary claims (meal and rest break violations) and subsequently settled the remaining claims related to the form of Safety-Kleen's wage statement for California employees for $210 thousand, of which $113 thousand was refunded in April 2010 due to a lower than anticipated participation by potential class members. In March 2010, the Court granted plaintiffs' request for statutory attorneys' fees, awarding the plaintiffs $320 thousand. Safety- Kleen appealed this ruling, but the ruling was sustained in August 2011. Safety-Kleen satisfied the attorneys' fee award, plus interest and attorneys' fees on appeal, by paying $359 thousand in September 2011. The second filed case was dismissed with prejudice in 2007. The third case involves the failure to pay overtime to certain employees based on their classification. Safety-Kleen disputes that there was an improper classification and contends that the employees were exempt from overtime under both federal and state exemptions. In December 2010, the Court, which had previously conditionally certified a class action, decertified the case as a class action, allowing one plaintiff to proceed individually (with the possibility, if he is successful, of employing California's Private Attorney General Act on behalf of a class). The trial of this individual claim has been set for February 2013. California law is not clear on the issues remaining in the individual case, and Safety-Kleen is unable to ascertain the ultimate aggregate amount of monetary liability or financial impact with respect to the remaining matters as of December 31, 2011. CONAGRA FOODS: Final Hearing on $4.4-MM Settlement on March 26 -------------------------------------------------------------- Hearing on the final approval of Ralcorp Holdings, Inc.'s $4.4 million settlement of three class action lawsuits involving its subsidiaries has been set for March 26, 2013, according to ConAgra Foods, Inc.'s January 3, 2013, Form 8-K filing with the U.S. Securities and Exchange Commission. On November 26, 2012, ConAgra Foods, Inc., a Delaware corporation (the "Company"), Ralcorp Holdings, Inc., a Missouri corporation ("Ralcorp"), and Phoenix Acquisition Sub Inc., a Missouri corporation and a wholly-owned subsidiary of the Company ("Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which Merger Sub will be merged with and into Ralcorp (the "Acquisition"), with Ralcorp surviving as a wholly-owned subsidiary of the Company, as described in the Current Report on Form 8-K filed by the Company on November 27, 2012. The parties' obligations to complete the Acquisition are conditioned upon (i) the receipt of regulatory approvals in the United States and Canada, (ii) approval of the Merger Agreement by the holders of two-thirds of the outstanding shares of Ralcorp common stock and (iii) certain other customary closing conditions. Consummation of the Acquisition is not subject to a financing condition. On December 28, 2012, Ralcorp began mailing its definitive proxy statement to its shareholders in connection with the special meeting of shareholders called to vote on the approval of the Acquisition, which is scheduled to be held on January 29, 2013. Two of Ralcorp's subsidiaries are subject to three lawsuits brought by former employees currently pending in separate California state courts alleging, among other things, that employees did not receive statutorily mandated meal breaks resulting in incorrect payment of wages, inaccurate wage statements, unpaid overtime and incorrect payments to terminated employees. Each of these lawsuits was filed as a class action and seeks to include in the class certain current and former employees of the respective subsidiary involved. In each case, the plaintiffs are seeking unpaid wages, interest, attorneys' fees, compensatory and other monetary damages, statutory penalties, and injunctive relief. No determination has been made by any court regarding class certification. In April 2012, Ralcorp agreed with the plaintiffs and a third party staffing agency formerly used by Ralcorp to the terms of a proposed settlement with respect to these lawsuits, and in September 2012, the parties entered into a global settlement with respect to these claims. Under the terms of the settlement, Ralcorp has agreed to pay $4.4 million in order to resolve these claims. Ralcorp accrued $4.4 million related to the settlement during the quarter ended March 31, 2012. Under the terms of the settlement, however, it is possible that up to $1.5 million could be returned to Ralcorp depending upon the number of current and former employees who participate in the settlement. On October 22, 2012, the court preliminarily approved the settlement, and the final approval has been set for March 26, 2013, at which time the case is expected to be dismissed. DENTON COUNTY, TX: Faces FLSA Violation Class Action Suit --------------------------------------------------------- Michelle Keahey, writing for The Southeast Texas Record, reports that a Denton County law enforcement officer has filed a class action lawsuit claiming that the county is violating the Fair Labor Standards Act by compensating some employees for their overtime hours with compensatory time credit instead of pay. Taylor White, on behalf of himself and on behalf of all others similarly situated, filed suit against Denton County and Denton County Sheriff's Department on Jan. 10 in the Eastern District of Texas, Sherman Division. Mr. White is bringing the lawsuit on behalf of all non-exempt law enforcement employees, who were, are or will be employed by the defendant during the period of three years prior to the filing of the lawsuit and who have worked more than 86 hours during a 14-day work period. According to the lawsuit, Denton County has a policy which provides that hours worked from 81 through 86 during a 14 day work period are compensated on a straight-time basis and hours worked in excess of 86 hours are compensated on a time-and-a-half basis. However, with regard to non-exempt law enforcement personnel, Denton County pays overtime hours worked in the form of granting compensatory time as opposed to cash, the suit states. Mr. White claims in those weeks that comp time is granted, Denton County fails to pay employees cash for the hours worked between 81 and 86 hours, but instead grants compensatory time on a straight time basis. The defendant is accused of violating the Fair Labor Standards Act by forced compensatory time in lieu of straight time, by forced compensatory time in lieu of overtime pay, and for failing to timely pay both straight time and overtime. Mr. White is seeking an award of damages for unpaid straight time compensation, unpaid overtime compensation, lost wages, liquidated damages, attorney's fees, court costs, and interest. The plaintiff is represented by John F. Melton of Melton & Kumler LLP in Austin. A jury trial is requested. U.S. District Judge Richard A. Schell is assigned to the case. Case No. 4:13-cv-00013 ENERGYSOLUTIONS: Faces Suit Over Proposed Sale to Energy Capital ---------------------------------------------------------------- Courthouse News Service reports that EnergySolutions is selling itself too cheaply through an unfair process to Energy Capital Partners II, for $3.75 a share or $1.1 billion, shareholders claim in Chancery Court. EPOCRATES: Being Sold to Athenahealth for Too Little, Suit Claims ----------------------------------------------------------------- Courthouse News Service reports that Epocrates, an electronic source for doctors, is selling itself too cheaply through an unfair process to Athenahealth, for $11.25 a share, shareholders claim in San Mateo County Court. FAMILY DOLLAR: Awaits Appellate Court Decision in "Scott" Suit -------------------------------------------------------------- Family Dollar Stores, Inc. is awaiting an appellate court decision in the class action lawsuit filed by Scott, et al., according to the Company's January 3, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 24, 2012. On October 14, 2008, a complaint was filed in the U.S. District Court in Birmingham, Alabama, captioned Scott, et al. v. Family Dollar Stores, Inc., alleging discriminatory pay practices with respect to the Company's female store managers. This case was pled as a putative class action or collective action under applicable statutes on behalf of all current and former female store managers. The plaintiffs seek recovery of back pay, compensatory and punitive damages, recovery of attorneys' fees and equitable relief. The case was transferred to the N.C. Federal Court. On January 13, 2012, the N.C. Federal Court ruled in the Company's favor, striking the plaintiffs' class claims and denying plaintiffs' motion to amend their complaint. The plaintiffs filed a petition to appeal this decision to the Fourth Circuit. The appellate briefing on this issue concluded, and the Fourth Circuit decision is pending. At this time, the Company says it is not possible to predict whether the Fourth Circuit will affirm the N.C. Federal Court's decision striking the class allegations. Although the Company intends to vigorously defend the action, no assurances can be given that the Company will be successful in the defense on the merits or otherwise. For these reasons, the Company is unable to estimate any potential loss or range of loss. The Company has tendered the matter to its Employment Practices Liability Insurance ("EPLI") carrier for coverage under its EPLI policy. At this time, the Company expects that the EPLI carrier will participate in any potential resolution of some or all of the plaintiffs' claims. FAMILY DOLLAR: Continues to Defend Wage and Hour Class Suits ------------------------------------------------------------ Family Dollar Stores, Inc. continues to defend itself against class action lawsuits alleging wage and hour law violations, according to the Company's January 3, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 24, 2012. Since 2004, certain individuals who held the position of store manager for the Company have filed lawsuits alleging that the Company violated the Fair Labor Standards Act ("FLSA"), and/or similar state laws, by classifying them as "exempt" employees who are not entitled to overtime compensation. Some of the plaintiffs also seek to proceed as collective actions under the FLSA or as class actions under state laws. Plaintiffs seek recovery of overtime pay, liquidated damages, attorneys' fees and court costs. Multi-District Litigation Many of the cases asserting claims under the FLSA were consolidated in a Multi-District Litigation ("MDL") proceeding pending in the Western District of North Carolina, Charlotte Division (the "N.C. Federal Court"). There are presently twelve cases in the MDL proceeding in which plaintiffs are asserting individual, class and/or collective action status. In total, following certain dismissals and summary dispositions, 32 individually named plaintiffs currently have cases pending in the MDL proceeding. In two of the cases, Grace v. Family Dollar Stores, Inc. and Ward v. Family Dollar Stores, Inc., the N.C. Federal Court determined that the plaintiffs were not similarly situated and, therefore, that neither nationwide notice nor collective treatment under the FLSA was appropriate. The N.C. Federal Court also granted summary judgment against Irene Grace on the merits of her misclassification claim under the FLSA. The plaintiffs appealed certain rulings of the N.C. Federal Court to the United States Court of Appeals for the Fourth Circuit (the "Fourth Circuit"). On March 22, 2011, the Fourth Circuit affirmed the N.C. Federal Court's decision finding that Ms. Grace was exempt from overtime compensation under the FLSA. The Fourth Circuit did not address the class certification finding the issue was moot given that the claims had been dismissed on the merits. In addition to the Grace decision, the N. C. Federal Court has repeatedly ruled in favor of the Company and granted summary judgment, finding that the plaintiffs were properly classified as exempt from overtime pay. Thirty-four individuals have filed notices of appeal of these dismissals to the Fourth Circuit. All putative class action cases based solely on state law have been dismissed from the MDL and were transferred to the appropriate state court jurisdiction. State Law Class Actions The Company is a defendant in seven class action lawsuits in seven states alleging that store managers should be non-exempt employees under various state laws. The plaintiffs in these cases seek recovery of overtime pay, liquidated damages, attorneys' fees and court costs. The states and cases are: * Colorado -- Julie Farley v. Family Dollar Stores of Colorado, Inc., was filed on February 7, 2012, in the United States District Court for the District of Colorado seeking unpaid overtime for a class of current and former Colorado store managers whom plaintiffs claim are not properly classified as exempt from overtime pay under Colorado law. On June 4, 2012, the Company filed a motion to dismiss certain of plaintiff's state law claims. The Magistrate submitted recommendations that those common law claims be dismissed. Plaintiff opposed the Magistrate's recommendation and the decision is currently pending before the district court. Class discovery has begun. * Connecticut -- Cook, et al. v. Family Dollar Stores of Connecticut, Inc., was filed on October 5, 2011, in the Superior Court of the State of Connecticut seeking unpaid overtime pay for a class of current and former Connecticut store managers whom plaintiffs claim are not properly classified as exempt from overtime under Connecticut law. The parties have concluded class discovery. The Company has filed summary judgment seeking dismissal of one of the named plaintiffs' claims, Cook. Plaintiff has filed a motion seeking class certification. A hearing is scheduled on the class certification motion on January 7, 2013. * Kentucky -- Barker v. Family Dollar, Inc., was filed on February 17, 2010, in Circuit Court in Jefferson County, Kentucky seeking unpaid overtime, compensation for unpaid breaks and for seventh day work under Kentucky law for a class of current and former Kentucky store managers. The Company removed this matter to the United States District Court for the Western District of Kentucky. The parties filed cross-motions for summary judgment. On October 25, 2012, the district court granted the Company's motion for summary judgment and denied the plaintiffs' motion. On November 26, 2012, plaintiffs filed a notice of appeal to the Sixth Circuit Court of Appeals. The parties are scheduled to participate in court-ordered mediation in January 2013. * Missouri -- Twila Walters et. al. v. Family Dollar Stores of Missouri, Inc., was filed on January 26, 2010, seeking unpaid overtime for a class of current and former Missouri store managers who presently reside in Missouri and whom plaintiffs claim are not properly classified as exempt from overtime under Missouri law. This matter is pending in the Circuit Court of Jackson County, Missouri (the "Jackson County Circuit Court"). On May 10, 2011, the Jackson County Circuit Court certified the class under Missouri law. The parties are engaged in merits discovery. The trial has been continued to November 2013. The parties are scheduled to participate in mediation in February 2013. * New Jersey -- Hegab v. Family Dollar Stores, Inc., was filed in the United States District Court for the District of New Jersey on March 3, 2011, seeking unpaid overtime pay for a class of current and former New Jersey store managers whom plaintiffs claim are not properly classified as exempt from overtime pay under New Jersey law. This matter has been administratively dismissed by the district court. * New York -- Youngblood, et al. v. Family Dollar Stores of New York, Inc. et al., was filed in the United States District Court for the Southern District of New York on April 2, 2009. Rancharan v. Family Dollar Stores, Inc., was filed in the Supreme Court of the State of New York, Queens County on March 4, 2009. Rancharan was removed to the United States District Court for the Eastern District of New York on May 6, 2009, and was transferred to the Southern District of New York where the case has been consolidated with Youngblood. The parties have a preliminary agreement to resolve this matter for a maximum payment of $14 million. The Company believes the liability recorded associated with this action is appropriate based on its estimate of the most likely payout under the preliminary settlement agreement. The motion for preliminary approval of the settlement was filed on November 14, 2012. * Pennsylvania -- Itterly v. Family Dollar Stores, Inc., which was formerly pending in the N.C. Federal Court, was remanded back to the United States District Court for the Eastern District of Pennsylvania on February 8, 2012. In Itterly, plaintiffs are seeking unpaid overtime for a class of current and former Pennsylvania store managers whom plaintiffs claim are not properly classified as exempt from overtime pay under Pennsylvania law. Discovery closed in June 2012. The Company has filed summary judgment seeking dismissal of Itterly's claims in their entirety, which is pending before the court. In general, the Company continues to believe that its store managers relevant to this litigation are "exempt" employees under the FLSA and have been and are being properly compensated under both federal and state laws. The Company further believes that these actions are not appropriate for collective or class action treatment. The Company intends to vigorously defend the claims in these actions. No assurances can be given that the Company will be successful in the defense of these actions, on the merits or otherwise. The Company cannot reasonably estimate the possible loss or range of loss that may result from these actions, with the exception of the preliminary settlement of the Rancharan/Youngblood case. GLENN'S MARKET: Recalls 2,532 Pounds of Raw Ground Beef Products ---------------------------------------------------------------- Glenn's Market and Catering, a Watertown, Wisconsin establishment, is recalling approximately 2,532 pounds of raw ground beef products that may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The products subject to recall are: * Various size packages of Glenn's Market ground round, ground chuck and ground beef sold between December 22, 2012, and January 4, 2013. The products subject to recall were sold only at Glenn's Market and Catering in Watertown, WI from the retail meat case. FSIS was notified of an investigation of E. coli O157:H7 illnesses by the Wisconsin Division of Public Health on January 10, 2013. Working in conjunction with the Wisconsin Division of Public Health, three case-patients with the outbreak strain have been identified in the state with illness onset dates ranging from Dec. 29, 2012 to Jan. 1, 2013. Among the three case-patients with available information, all three reported consuming raw ground round; two consumed product ground and purchased on Dec. 24, 2012; the third consumed product ground and purchased on Dec. 30, 2012 prior to illness onset. FSIS is continuing to work with the Watertown Department of Public Health, the Wisconsin Division of Public Health, the Wisconsin Department of Agriculture, Trade and Consumer Protection and the U.S. Centers for Disease Control and Prevention on this investigation. FSIS and the establishment are concerned that some product may be frozen and in shoppers' freezers. FSIS routinely conducts recall effectiveness checks to ensure that steps are taken to make certain that the product is no longer available to consumers. When available, the retail distribution list(s) will be posted on the FSIS Web site at: http://www.fsis.usda.gov/FSIS_Recalls/Open_Federal_Cases/index.asp E. coli O157:H7 is a potentially deadly bacterium that can cause dehydration, bloody diarrhea and abdominal cramps 2-8 days (3-4 days, on average) after exposure to the organism. While most people recover within a week, some develop a type of kidney failure called HUS. This condition can occur among persons of any age but is most common in children under 5-years old and older adults. Symptoms of HUS may include fever, abdominal pain, pale skin tone, fatigue and irritability, small, unexplained bruises or bleeding from the nose and mouth, decreased urination, and swelling. Persons who experience these symptoms should seek emergency medical care immediately. FSIS advises all consumers to safely prepare their raw meat products, including fresh and frozen, and only consume ground beef that has been cooked to a temperature of 160 degrees F. The only way to confirm that ground beef is cooked to a temperature high enough to kill harmful bacteria is to use a food thermometer that measures internal temperature. Consumers and media with questions regarding the recall should contact the company's vice president, Jeff Roberts, at (920) 261- 2226. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10:00 a.m. to 4:00 p.m. Eastern Time. The toll-free USDA Meat and Poultry Hotline 1-888- MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from 10:00 a.m. to 4:00 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. The online Electronic Consumer Complaint Monitoring System can be accessed 24 hours a day at: http://www.fsis.usda.gov/FSIS_Recalls/Problems_With_Food_Products/index.asp HEWLETT PACKARD: Faces Class Action Over Labor Law Violations ------------------------------------------------------------- Courthouse News Service reports that Hewlett Packard stiffed tech support workers and engineers for overtime, a class action claims in Federal Court. KPMG LLP: Rosen Law Firm Files Securities Class Action ------------------------------------------------------ The Rosen Law Firm on Jan. 15 disclosed that it has filed a class action lawsuit on behalf of purchasers of TierOne stock between March 13, 2009 and May 14, 2010. The complaint charges TierOne's former auditor KPMG LLP and certain of KPMG's audit partners with violating the federal securities laws. To join the class action, go to the Web site at http://rosenlegal.comor call Phillip Kim, Esq. toll-free at 866- 767-3653 or e-mail pkim@rosenlegal.com for information on the class action. The case is pending in the U.S. District Court for the District of Nebraska. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. The complaint charges that KPMG and certain of its audit partners violated the federal securities laws by issuing a false and misleading "clean" audit opinion for TierOne's fiscal year 2008 financial statements and its internal controls. The complaint asserts that KPMG fraudulently disregarded audit procedures and tests that, if conducted, would have revealed the financial fraud at TierOne. When news of the fraud was revealed, the price of TierOne's stock dropped and ultimately the bank failed -- causing investors substantial losses. A class action lawsuit has already been filed on behalf of TierOne shareholders. If you wish to serve as lead plaintiff, you must move the Court no later than March 18, 2013. If you wish to join the litigation or to discuss your rights or interests regarding this class action, please contact plaintiff's counsel, Phillip Kim, Esq. of The Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com The Rosen Law Firm -- http://www.rosenlegal.com-- focuses on prosecuting securities class action litigation and actions involving financial fraud. The Rosen Law Firm represents investors throughout the globe concentrating its practice in securities class actions. KTM NORTH: Recalls 1,300 Enduro Motorcycles Over Fuel Leak Hazard ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with importer, KTM North America, Inc., of Amherst, Ohio, and manufacturer, KTM-Sportmotorcycle AG, of Mattighofen, Austria, announced a voluntary recall of about 1,300 Enduro motorcycles. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. During use, the pre-formed fuel hose can develop small holes or cracks at the ends of the hose, allowing fuel to leak. This poses a fire and crash hazard to the rider and/or others. KTM has received 13 reports of fuel leaks. No injuries have been reported. The recall includes seven 2013 and one 2012 model off-road and closed-course motorcycle. Model numbers included are: 2013 KTM Motorcycles: 250 XC-F, 250 XCF-W, 350 XC-F, 350 XCF-W, 450 XC-F, 450 XC-W, 500 XC-W and MY 2012 KTM 350 XCF-W. The model number is printed on the rear fender on both sides of the motorcycle just below the tail end of the seat. These two-wheeled motorcycles are black and orange. KTM is printed on the front number plate/headlight mask and on both sides of the shrouds covering the fuel tank. A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13094.html The recalled products were manufactured in Austria and sold at authorized KTM dealers nationwide from October 2011 through September 2012 for between $8,500 and $9,600. Consumers should immediately stop using the recalled KTM motorcycles and contact a KTM authorized dealer to schedule a free repair. KTM North America Inc. may be reached toll-free at (888) 985-6090 from 8:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday, or online at http://www.ktmusa.com/and click on Dealer and Service for more information. MATCH.COM: Faces Class Suit For Sending Spam E-mails ---------------------------------------------------- Courthouse News Service reports that Match.com sends illegal, spam e-mails with bogus subject lines, a class action claims in Superior Court. MCMORAN EXPLORATION: Faces Merger-Related Class Suit in Delaware ---------------------------------------------------------------- Joel Krieger, On Behalf of Himself and All Others Similarly Situated v. McMoRan Exploration Co., Gerald J. Ford, William P. Carmichael, Richard C. Adkerson, James R. Moffett, James C. Flores, Robert Addison Day, H. Devon Graham Jr., John F. Wombwell, Suzanne T. Mestayer, A. Peyton Bush III, Freeport-McMoRan Copper & Gold Inc., Invan Corp., and Plains Exploration & Production Company, Case No. 8091- (Del. Ch. Ct., December 11, 2012) seeks to enjoin the acquisition of publicly owned shares of MMR common stock by FCX through its wholly-owned subsidiary Invan Corp. ("Merger Sub"). Under the terms of the Merger Agreement, shareholders of MMR will receive $14.75 in cash and 1.15 units of a royalty trust, which will hold a 5% overriding royalty interest in future production from MMR's existing ultra-deep exploration properties, Mr. Krieger says. He argues that the Proposed Buyout is unfair, undervalued and brought by a shareholder, who will retain its ownership in the Company after the Proposed Buyout closes. He adds that the process by which the Defendants propose to consummate the Proposed Buyout is fundamentally unfair to him and the other public shareholders of the Company. Mr. Krieger is a holder of MMR common stock. MMR is a Delaware corporation headquartered in New Orleans, Louisiana. MMR is an independent public company engaged in the exploration, development and production of natural gas and oil. The Individual Defendants are directors and officers of the Company. FCX is a leading international mining company with headquarters in Phoenix, Arizona. FCX operates large, long-lived, geographically diverse assets with significant proven and probable reserves of copper, gold and molybdenum. The Merger Sub is a Delaware Corporation and wholly owned subsidiary of FCX formed to effectuate the Proposed Buyout. PXP is headquartered in Houston, Texas, and is an independent oil and gas company primarily engaged in the activities of acquiring, developing, exploring and producing oil and gas in California, Texas, Louisiana, and the Deepwater Gulf of Mexico. The Plaintiff is represented by: James P. McEvilly, Esq. Craig J. Springer, Esq. FARUQI & FARUQI, LLP 20 Montchanin Road, Suite 145 Wilmington, DE 19807 Telephone: (302) 482-3182 Facsimile: (302) 482-3612 - and - Juan E. Monteverde, Esq. FARUQI & FARUQI, LLP 369 Lexington Ave., Tenth Floor New York, NY 10017 Telephone: (212) 983-9330 E-mail: jmonteverde@faruqilaw.com MILO'S KITCHEN: Recalls Chicken Jerky and Grillers Dog Treats ------------------------------------------------------------- Milo's Kitchen(R) announced that it is voluntarily recalling its Chicken Jerky and Chicken Grillers home-style dog treats from retailer shelves nationally. No other Milo's Kitchen(R) products are affected. On Monday, January 14, 2013, New York State's Department of Agriculture informed the U.S. Food and Drug Administration (FDA) and the Company that trace amounts of residual antibiotics had been found in several lots of Milo's Kitchen(R) Chicken Jerky. After consultation with the New York Department of Agriculture and FDA, the company decided to voluntarily recall Milo's Kitchen(R) Chicken Jerky and Chicken Grillers, which are both sourced from the same chicken suppliers. The use of antibiotics to keep chickens healthy and disease-free while raising them is standard practice in poultry production for both human and pet food. However, the antibiotics found in the products were unapproved and should not be present in the final food product. Milo's Kitchen(R) has a comprehensive safety testing program in place for its products from procurement through manufacturing and distribution. Part of that program involves extensive testing for a wide range of substances commonly used to ensure the health of chickens. However, Milo's Kitchen(R) did not test for all of the specific antibiotics found by the New York Department of Agriculture. "Pet safety and consumer confidence in our products are our top priorities," said Rob Leibowitz, general manager, Pet Products. "While there is no known health risk, the presence of even trace amounts of these antibiotics does not meet our high quality standards. Therefore, today we decided to recall both products and asked retailers to remove the products from their shelves. "Consumers who discard the treats will receive a full refund," said Mr. Leibowitz. "We are committed to Milo's Kitchen(R) and stand by our guarantee of complete consumer satisfaction." Consumers with questions about Milo's Kitchen products can get further information at 1-877-228-6493. MOSAIC CO: Petition for Review in Potash Antitrust Suit Pending --------------------------------------------------------------- The Mosaic Company's petition to the U.S. Supreme Court seeking review of an appellate court decision affirming the denial of its motion to dismiss claims in the Potash Antitrust Litigation remains pending, according to the Company's January 4, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended November 30, 2012. On September 11, 2008, separate complaints (together, the "September 11, 2008 Cases") were filed in the United States District Courts for the District of Minnesota (the "Minn-Chem Case") and the Northern District of Illinois (the "Gage's Fertilizer Case"), on October 2, 2008, another complaint (the "October 2, 2008 Case") was filed in the United States District Court for the Northern District of Illinois, and on November 10, 2008, and November 12, 2008, two additional complaints (together, the "November 2008 Cases" and collectively with the September 11, 2008 Cases and the October 2, 2008 Case, the "Direct Purchaser Cases") were filed in the United States District Court for the Northern District of Illinois (the "Northern Illinois District Court") by Minn-Chem, Inc., Gage's Fertilizer & Grain, Inc., Kraft Chemical Company, Westside Forestry Services, Inc. d/b/a Signature Lawn Care, and Shannon D. Flinn, respectively, against The Mosaic Company, Mosaic Crop Nutrition, LLC and a number of unrelated defendants that allegedly sold and distributed potash throughout the United States. On November 13, 2008, the plaintiffs in the cases in the United States District Court for the Northern District of Illinois filed a consolidated class action complaint against the defendants, and on December 2, 2008, the Minn-Chem Case was consolidated with the Gage's Fertilizer Case. On April 3, 2009, an amended consolidated class action complaint was filed on behalf of the plaintiffs in the Direct Purchaser Cases. The amended consolidated complaint added Thomasville Feed and Seed, Inc. as a named plaintiff, and was filed on behalf of the named plaintiffs and a purported class of all persons who purchased potash in the United States directly from the defendants during the period July 1, 2003, through the date of the amended consolidated complaint ("Class Period"). The amended consolidated complaint generally alleges, among other matters, that the defendants: conspired to fix, raise, maintain and stabilize the price at which potash was sold in the United States; exchanged information about prices, capacity, sales volume and demand; allocated market shares, customers and volumes to be sold; coordinated on output, including the limitation of production; and fraudulently concealed their anticompetitive conduct. The plaintiffs in the Direct Purchaser Cases generally seek injunctive relief and to recover unspecified amounts of damages, including treble damages, arising from defendants' alleged combination or conspiracy to unreasonably restrain trade and commerce in violation of Section 1 of the Sherman Act. The plaintiffs also seek costs of lawsuit, reasonable attorneys' fees and pre-judgment and post-judgment interest. On September 15, 2008, separate complaints were filed in the United States District Court for the Northern District of Illinois by Gordon Tillman (the "Tillman Case"); Feyh Farm Co. and William H. Coaker Jr. (the "Feyh Farm Case"); and Kevin Gillespie (the "Gillespie Case;" the Tillman Case and the Feyh Farm Case together with the Gillespie case being collectively referred to as the "Indirect Purchaser Cases;" and the Direct Purchaser Cases together with the Indirect Purchaser Cases being collectively referred to as the "Potash Antitrust Cases"). The defendants in the Indirect Purchaser Cases are generally the same as those in the Direct Purchaser Cases. On November 13, 2008, the initial plaintiffs in the Indirect Purchaser Cases and David Baier, an additional named plaintiff, filed a consolidated class action complaint. On April 3, 2009, an amended consolidated class action complaint was filed on behalf of the plaintiffs in the Indirect Purchaser Cases. The factual allegations in the amended consolidated complaint are substantially identical to those summarized above with respect to the Direct Purchaser Cases. The amended consolidated complaint in the Indirect Purchaser Cases was filed on behalf of the named plaintiffs and a purported class of all persons who indirectly purchased potash products for end use during the Class Period in the United States, any of 20 specified states and the District of Columbia defined in the consolidated complaint as "Indirect Purchaser States," any of 22 specified states and the District of Columbia defined in the consolidated complaint as "Consumer Fraud States", and/or 48 states and the District of Columbia and Puerto Rico defined in the consolidated complaint as "Unjust Enrichment States." The plaintiffs generally sought injunctive relief and to recover unspecified amounts of damages, including treble damages for violations of the antitrust laws of the Indirect Purchaser States where allowed by law, arising from defendants' alleged continuing agreement, understanding, contract, combination and conspiracy in restraint of trade and commerce in violation of Section 1 of the Sherman Act, Section 16 of the Clayton Act, the antitrust, or unfair competition laws of the Indirect Purchaser States and the consumer protection and unfair competition laws of the Consumer Fraud States, as well as restitution or disgorgement of profits, for unjust enrichment under the common law of the Unjust Enrichment States, and any penalties, punitive or exemplary damages and/or full consideration where permitted by applicable state law. The plaintiffs also seek costs of suit and reasonable attorneys' fees where allowed by law and pre-judgment and post-judgment interest. On June 15, 2009, the Company and the other defendants filed motions to dismiss the complaints in the Potash Antitrust Cases. On November 3, 2009, the court granted our motions to dismiss the complaints in the Indirect Purchaser Cases except (a) for plaintiffs residing in Michigan and Kansas, claims for alleged violations of the antitrust or unfair competition laws of Michigan and Kansas, respectively, and (b) for plaintiffs residing in Iowa, claims for alleged unjust enrichment under Iowa common law. The court denied our and the other defendants' other motions to dismiss the Potash Antitrust Cases, including the defendants' motions to dismiss the claims under Section 1 of the Sherman Act for failure to plead evidentiary facts which, if true, would state a claim for relief under that section. The court, however, stated that it recognized that the facts of the Potash Antitrust Cases present a difficult question under the pleading standards enunciated by the U.S. Supreme Court for claims under Section 1 of the Sherman Act, and that it would consider, if requested by the defendants, certifying the issue for interlocutory appeal. On January 13, 2010, at the request of the defendants, the court issued an order certifying for interlocutory appeal the issues of (i) whether an international antitrust complaint states a plausible cause of action where it alleges parallel market behavior and opportunities to conspire; and (ii) whether a defendant that sold product in the United States with a price that was allegedly artificially inflated through anti-competitive activity involving foreign markets, engaged in 'conduct involving import trade or import commerce' under applicable law. On September 23, 2011, the United States Court of Appeals for the Seventh Circuit (the "Seventh Circuit") vacated the district court's order denying the defendants' motion to dismiss and remanded the case to the district court with instructions to dismiss the plaintiffs' Sherman Act claims. On December 2, 2011, the Seventh Circuit vacated its September 23, 2011 order and on June 27, 2012, the Seventh Circuit affirmed the order of the Northern Illinois District Court to deny the defendants' motion to dismiss the plaintiffs' claims. The decision is not a ruling on the merits of the case, but the Seventh Circuit's decision allows pretrial discovery to proceed in this matter, and the Northern Illinois District Court has scheduled trial to begin February 10, 2014. The Company is seeking U.S. Supreme Court review of the Seventh Circuit's decision. The Company believes that the allegations in the Potash Antitrust Cases are without merit and intends to defend vigorously against them. At this stage of the proceedings, the Company cannot predict the outcome of this litigation, estimate the potential amount or range of loss or determine whether it will have a material effect on the Company's results of operations, liquidity or capital resources. PENSION PLAN: Sued for Violating ERISA's Anti-Cutback Provision --------------------------------------------------------------- Laurence J. Skelly, individually and on behalf of all others similarly situated v. The Pension Plan for Insurance Organizations; and The named Fiduciaries of The Pension Plan for Insurance Organizations, as Plan Administrator; and Kenneth Geraghty, individually, as Managing Fiduciary of the Plan and as the former Chief Financial Officer of Insurance Services Office, Inc., Case 1:12-cv-08889 (S.D.N.Y., December 7, 2012) is brought for alleged violation of the Employee Retirement Income Security Act of 1974. The Plaintiff is asking the Court to declare that a certain amendment to the Plan, effective as of December 31, 2001, violated the anti-cutback provisions of the ERISA. The amendment terminated their right to calculate and define the value of their retirement. The Plaintiff is a resident of East Meadow, New York, and a participant of the Plan. The Plan is an "employee pension benefit plan" within the meaning of the ERISA. Defendant Administrator, the named fiduciaries of the Plan, is the "plan administrator" of the Plan within the meaning of the ERISA. Mr. Geraghty is the "managing fiduciary" of the Plan. The Plaintiff is represented by: Richard S. Meisner, Esq. JARDIM, MEISNER & SUSSER, PC 30B Vreeland Road, Suite 201 Florham Park, NJ 07932 Telephone: (973) 845-7643 E-mail: rich@jmslawyers.com SAMSUNG SDI: Faces Another Antitrust Class Suit in California ------------------------------------------------------------- Michael S. Wilson, on behalf of himself and all others similarly situated v. Samsung SDI Co., Ltd.; Samsung SDI America, Inc.; LG Chem, Ltd.; LG Chem America, Inc.; Panasonic Corporation; Panasonic Corporation of North America; Sanyo Electric Co., Ltd.; Sanyo North America Corporation; Sony Corporation; Sony Energy Devices Corporation; Sony Electronics, Inc.; Hitachi, Ltd.; Hitachi Maxell, Ltd.; and Maxell Corporation of America, Case No. 3:12-cv-06210 (N.D. Calif., December 7, 2012) arises out of an alleged contact, combination and conspiracy among the Defendants and their co-conspirators to fix, raise, maintain and stabilize the prices of Lithium-ion Rechargeable Batteries sold directly by the Defendants and their affiliates during the period from approximately January 1, 2002, through the present. During the Class Period, the Defendants conspired, combined and contracted to fix, raise, maintain, and stabilize the prices at which Lithium-ion Rechargeable Batteries were sold in the United States, Mr. Wilson alleges. As a result of the Defendants' unlawful conduct, Mr. Wilson says he and the other members of the Class paid artificially inflated prices for Lithium-ion Rechargeable Batteries during the Class Period. Mr. Wilson is a resident of the state of Texas. During the Class Period, he purchased Lithium-ion Rechargeable Batteries directly from one or more of the Defendants. Samsung SDI is a Korean corporation based in Gyeonggi, South Korea, and 20% owned by the Korean conglomerate Samsung Electronics, Inc. Samsung SDI America is a California corporation based in Irvine, California, and a wholly owned subsidiary of Samsung SDI. LG Chem is a Korean corporation based in Seoul, South Korea. LG Chem is an affiliate of Seoul-based conglomerate LG Electronics. LG Chem America is a Delaware corporation based in Englewood Cliffs, New Jersey, and a wholly owned subsidiary of LG Chem. Panasonic Corp. is a Japanese corporation based in Osaka, Japan. Panasonic Corp. was formerly known as Matsushita Electric Industrial Co. Panasonic manufactures and sells Lithium Ion Rechargeable Batteries under the Panasonic name and also under the name of Defendant and wholly owned subsidiary Sanyo Electric Co., Ltd. Panasonic Corporation of North America, formerly known as Matsushita Electric Corporation of America, is a Delaware Corporation based in Secaucus, New Jersey, and a wholly owned and controlled subsidiary of Panasonic Corporation. Sanyo is a Japanese corporation based in Osaka, Japan. Sanyo North America Corporation is a Delaware corporation based in San Diego, California, and a wholly owned subsidiary of Sanyo Electric Co., Ltd. Sony Corporation is a Japanese corporation based in Tokyo, Japan. Sony Energy is a Japanese corporation based in Fukushima, Japan. Sony Energy Devices Corporation is a wholly owned subsidiary of Sony Corporation. Sony Electronics is a Delaware corporation based in San Diego, California and a wholly owned subsidiary of Sony Corporation. Hitachi Ltd. is a Japanese company based in Tokyo, Japan. Hitachi Maxell is a Japanese corporation based in Tokyo, Japan, and a wholly owned subsidiary of Hitachi, Ltd. Maxell is a New Jersey corporation based in Woodland Park, New Jersey. The Defendants manufacture, market, and sell Lithium Ion Rechargeable Batteries throughout the United States and the world. The Defendants collectively controlled approximately two-thirds or more of the worldwide market for Lithium Ion Rechargeable Batteries throughout this period, and over 80 percent of the market in the early part of this period. The Plaintiff is represented by: Terry Gross, Esq. Adam C. Belsky, Esq. Sarah Crowley, Esq. GROSS BELSKY ALONSO LLP One Sansome Street, Suite 3670 San Francisco, CA 94104 Telephone: (415) 544-0200 Facsimile: (415) 544-0201 E-mail: terry@gba-law.com adam@gba-law.com sarah@gba-law.com - and - Guido Saveri, Esq. R. Alexander Saveri, Esq. SAVERI & SAVERI, INC. 706 Sansome Street San Francisco, CA 94111 Telephone: (415) 217-6810 Facsimile: (415) 217-6813 E-mail: guido@saveri.com rick@saveri.com - and - Randy Renick, Esq. Cornelia Dai, Esq. HADSELL STORMER RICHARDSON & RENICK LLP 128 N. Fair Oaks Ave., Suite 204 Pasadena, CA 91103 Telephone: (866) 457-2590 Facsimile: (626) 577-7079 SILVERCORP: Faces Securities Class Action Lawsuit ------------------------------------------------- Courthouse News Service reports that Silvercorp inflated its share price by exaggerating its silver and lead production by 306 percent, shareholders claim in a federal class action. STANDARD FIRE: Sup. Ct. Considers Monetary Limits on Class Actions ------------------------------------------------------------------ Michelle Keahey, writing for Legal Newsline, reports that the Supreme Court on Jan. 14 considered efforts by lawyers to place monetary limits on class actions in an effort to keep the class actions in "hellhole" or plaintiff-friendly jurisdictions. The central argument is whether plaintiff lawyers can provide a legally binding stipulation that prevents the plaintiff, and the class of unnamed people they hope to represent, from receiving more than $5 million, the requisite amount of monies necessary for federal court jurisdiction. Under the Class Action Fairness Act of 2005, a class action that is asking for $5 million or more belongs in federal court. In the case heard on Jan. 14, Standard Fire Insurance Co. v. Knowles, the plaintiff Greg Knowles filed a stipulation with the complaint stating he would not seek more than $5 million. Ms. Knowles filed the original lawsuit on April 13, 2011, in the Circuit Court of Miller County in Arkansas against Standard Fire Insurance Co. The lawsuit claims that Standard Fire breached its contract by systematically underpaying claims of loss or property damage made under a homeowner's insurance policy. Specifically, plaintiff Ms. Knowles claims that the insurance company did not pay for general contractors' overhead and profit charges associated with damage to his home caused by hail on March 10, 2010. Although in Arkansas the lawsuit could include class members with claims going back for five years, lawyers decided to limit potential class members as those with claims going back for only two years throughout the state of Arkansas. In addition to this limit on class members, Ms. Knowles filed a stipulation stating that he would not seek more than $5 million and waived his right to certain damages. Defendant Standard Fire removed the case to federal court in May 2011, arguing that plaintiff fraudulently defined the purported class in an effort to avoid federal court jurisdiction. However, the case was remanded back to state court based on the plaintiff's stipulation to limit his recovery to under $75,000 and limit unnamed class members' recovery to under $5 million. Justice Stephen Breyer pointed out that this use of a stipulation was a procedural loophole and it "swallows up" the Congressional intent of the Class Action Fairness Act. Justice Breyer and Chief Justice John G. Roberts Jr. made comments to Ms. Knowles' lawyer David Frederick on ways lawyers are breaking up class actions by filing the same lawsuit in different localities, each seeking less than $5 million. "All that is required is a few extra pieces of paper that will soon become standardized, and a lot of postage stamps," Justice Breyer said. Mr. Frederick argued that the move was strategic and returned to the argument that Ms. Knowles would not seek $5 million. If Ms. Knowles was deemed an unfit class representative at class certification, Standard Fire could remove the case to federal court at that time, he argued. Standard Fire's lawyers argued that class certification is not likely to occur in Judge Kirk Johnson's Miller County Circuit Court and that the stipulation was not binding on absent class members. Justice Elena Kagan agreed and clarified, "It's binding if the class is certified and a case proceeds to judgment. It's not binding on absent class members prior to certification and prior to judgment." Justice Roberts asked Standard Fire's lawyer Theodore Boutrous why state court was bad and why it was bad for the claims to be limited. Justice Roberts stated, "Well, you're assuming that it's a bad thing for the class members to have their claims limited. But it may well by a good thing for them to have their claims limited if that gets them into what would reasonably be regarded as a more sympathetic forum." Standard Fire avoided Justice Roberts' comments and pointed out that it was undisputed that the claims exceeded $5 million. The Justices agreed the case was worth a lot of money and noted that it could be beneficial for the state court. Justice Antonion Scalia stated, "The state court could find, and I suspect this state court would find, that it's worth the money to be in state court." Toward the end of the arguments, Chief Justice Roberts seemed to agree, noting that if the case went to trial it would be worth "a lot more than $5 million." STAPLES THE OFFICE: Blumenthal Nordrehaug Files Class Action ------------------------------------------------------------ Blumenthal, Nordrehaug & Bhowmik on Jan. 15 disclosed that on December 21, 2012 the San Francisco labor lawyers at Blumenthal, Nordrehaug & Bhowmik filed a class action complaint against Staples The Office Superstore, LLC for allegedly shorting non- exempt employees paid on an hourly basis all the overtime that was due to them. Rodriguez, et al. vs. Staples The Office Superstore, LLC., Case No. CIV-1205714 is currently pending in the Marin County Superior Court for the State of California. According to the class action complaint filed against Staples, the employees received commission wages which Staples failed to include in the regular rate of pay for purposes of calculating overtime pay. The failure to include the commission monies in the regular rate of pay for overtime purposes, according to the complaint, "has resulted in a systematic underpayment of overtime compensation" to Staples' employees. Norman B. Blumenthal, founding and managing partner of Blumenthal, Nordrehaug, & Bhowmik declared "commission wages that must be included as a part of the regular rate of pay can increase overtime pay liability." Another attorney at Blumenthal Nordrehaug & Bhowmik, Nicholas De Blouw, stated "improperly failing to include commission wages can cost an organization considerably more in damages and litigation expenses." If you are having trouble collecting unpaid wages call an experienced California employment attorney today at (866) 771- 7099. Blumenthal, Nordrehaug & Bhowmik is an employment law firm that dedicates its practice to helping employees, investors and consumers fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. STRUCTURAL PROTECTION: Painter Files Overtime Suit in New Orleans ----------------------------------------------------------------- Michelle Massey, writing for The Louisiana Record, reports that a painter has filed a collective lawsuit against a Louisiana industrial painting company claiming that workers were only paid straight time and were not paid any overtime wages. Juan Ortiz, on behalf of himself and others similarly situated, filed suit against Structural Protection Services and Dale P. Abreo on Dec. 21 in federal court in New Orleans. The defendant is accused of violating the Fair Labor Standards Act by only paying straight time and not paying overtime wages. While working as a painter, sandblaster, and welder, Mr. Ortiz claims he worked over 60 hours per week, but did not receive overtime pay for hours he worked over 40 per week. According to the lawsuit, plaintiff's coworkers were also denied overtime pay under the same payroll policy. The collective lawsuit will include all of defendant's employees who were paid straight time for overtime in any workweek during the past three years. The plaintiff is seeking an award of damages for unpaid overtime compensation, liquidated damages, attorney's fees, costs, and interest. Mr. Ortiz is represented by Derrick G. Earles of Brian Caubarreaux & Associates in Marksville and David I. Moulton of Bruckner Burch PLLC in Houston. A jury trial is requested. U.S. District Judge Lance M. Africk is assigned to the case. Case No. 2:12-cv-03029 TARGET CORP: Recalls 42,000 Girls' Circo Fleece Blanket Sleepers ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Target Corp., of Minneapolis, Minnesota, announced a voluntary recall of about 42,000 Girls' Circo Fleece Blanket Sleepers. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The pajamas fail to meet the federal flammability standards for children's sleepwear, posing a risk of burn injuries to children. No incidents or injuries have been reported. The recalled one-piece feet pajamas are fleece and were sold in sizes 12 months, 18 months, 2T, 3T, 4T, XS, S, M, L and XL. They come in three prints: purple owl, pink leopard, and blue doodle. There are several tags sewn into the neckline. "Circo Sleepwear" is printed on the top tag. "Target" and an identification number appear on a third tag. The below identification numbers are included: Purple Owl: * 075084972, 075084973, 075084974, 075084975, 075084976 * 243271104, 243271105, 243271062, 243271063, 243271064 Pink Leopard: * 075085338, 075085339, 075085340, 075085341, 075085342 * 243271052, 243271065, 243271066, 243271067, 243271068 Blue Doodle: * 075085388, 075085389, 075085390, 075085391, 075085392 * 243271047, 243271048, 243271049, 243271050, 243271053 Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13095.html The recalled products were manufactured in China and sold exclusively at Target and Target.com nationwide from August 2012 to October 2012 for about $13. Consumers should immediately stop using the pajamas and return them to any Target store to receive a full refund. Target may be reached at (800) 440-0680 from 7:00 a.m. to 6:00 p.m. Central Time Monday through Friday, or online at http://www.target.com/ and click on the Product Recalls at the bottom of the page and then Children's and Baby Products. TARGET CORP: Recalls 560,000 Children's Two-Piece Pajama Sets ------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with importer, Target Corp., of Minneapolis, Minnesota, and manufacturer, Makalot Garments Co. Ltd., of Taiwan, announced a voluntary recall of about 560,000 Children's two-piece pajama sets. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The children's cotton or cotton/fleece pajamas sets fail to meet the federal flammability standards for children's sleepwear, because they do not meet the tight-fitting sizing requirements. This poses a burn hazard to children. No incidents or injuries have been reported. This recall involves Target Circo and Xhilaration children's cotton or cotton/fleece two-piece pajama sets. They were sold in infant and toddler sizes 12M, 2T, 3T, 4T and 5T, and in girls and boys sizes XS, S, M, L and XL. There are a variety of colors and designs, including stars, dots, skulls, peace signs, cats, owls, footballs and camouflage. To see a complete list of item numbers included in this recall, visit the firm's Web site. The item number is located on a tag on the shirt's side seam and on the pants at the waist. A tag printed on the neck of the pajamas states "Circo" or "Xhilaration", "Wear snug-fitting not flame resistant" and the item number. The pajamas were also sold with a yellow hangtag that states, "For child's safety, garment should fit snugly. This garment is not flame resistant. Loose-fitting garment is more likely to catch fire." Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13093.html The recalled products were manufactured in Vietnam and Cambodia, and sold exclusively at Target stores nationwide and online at target.com from August 2012 through November 2012 for between $8 and $13. Consumers should immediately take the recalled pajamas away from children and return them to any Target for a full refund. Target may be reached at (800) 440-0680, from 7:00 a.m. to 6:00 p.m. Central Time Monday through Friday, or online at http://www.target.com/and click on Product Recalls at the bottom of the page for more information. WELLS FARGO: Wachovia Suit Settlement Class Members File Suit ------------------------------------------------------------- Jennifer Murphy; Richard D'Alessio; Chan C. Pharn; Christina Zako; Paul McDermed; Julie McDermed; Thomas Geremia; Linda Geremia; Julie A. Young; David W. Young; Michael Lerner; Kathy Lerner; Omar F. Bishr; Ruth Bishr; Jeffrey Cory; Jose Cruz; Cynthia Biggs; George Biggs; Jason Fisher; Catherine Marsh; Walter Falkowski; Mary Slade; Greg Slade; Joseph Midgette; Nathan Ranger; Sherri Goldfinch; Carrie Rosillo; John Burkett; Diana Burkett; Carlton Hinkle; and Katheryn Hinkle, Individually and on Behalf of All Others Similarly Situated v. Wells Fargo Home Mortgage; Wells Fargo Bank, N.A.; World Savings, Inc.; World Savings Bank, FSB; Wachovia Mortgage, FSB, now known as Wachovia Mortgage, a division of Wells Fargo Bank, N.A.; Wachovia Corporation; Golden West Financial Corporation; Wachovia Bank, FSB, formerly known as World Savings Bank, FSB TX; and Wachovia Mortgage Corporation, Case No. 5:12-cv-06228 (N.D. Calif., December 7, 2012) is a complaint for breach of the class action settlement agreement in the lawsuit captioned In re: Wachovia Corp. "Pick-A-Paymeni" Mortgage Marketing and Sales Practices Litigation (N.D. Cal. Case No. M:09- CV-2015-JF). The Plaintiffs also bring claims for breach of the implied covenant of good faith and fair dealing, violation of California's Unfair Competition Law, for relief under the All Writs Act and pursuant to the Court's equitable powers to enforce the class action settlement agreement that it finally approved. The Plaintiffs contend that the Defendants willfully failed to abide by the terms of the Agreement and Stipulation of Settlement of Class Action in the Wachovia Class Action, which was finally approved by an order of the Court on May 17, 2011. The Plaintiffs are members of the class in the Wachovia litigation. Wells Fargo Home Mortgage is a division of Wells Fargo Bank, N.A., and is based in South Dakota. Wells Fargo Bank is a national banking association licensed to do business and doing business in California, and is also based in South Dakota. World Savings Inc. is a California corporation that originated some of the Pick-a- Payment mortgage loans that were the subject of the Wachovia Class Action. World Savings Bank, FSB, is a federal savings bank that originated some of the Pick-a-Payment mortgage loans that were the subject of the Wachovia Class Action. Wachovia Corporation is a North Carolina corporation, and the parent corporation of Wachovia Bank and Wachovia Mortgage. Wachovia Mortgage is a division of Wells Fargo Bank. Golden West is a Delaware corporation and a subsidiary of Wachovia Corp. Wachovia Bank is a federal savings bank. The Plaintiffs are represented by: Jeffrey K. Berns, Esq. BERNS WEISS LLP 20700 Ventura Blvd., Suite 140 Woodland Hills, CA 91364 Telephone: (818) 961-2000 Facsimile: (818) 999-1500 E-mail: jberns@law111.com - and - Lee A. Weiss, Esq. BERNS WEISS LLP 626 RXR Plaza Uniondale, NY 11556 Telephone: (516) 222-2900 Facsimile: (818) 999-1500 E-mail: lweiss@bernsweiss.com WEST COVINA AUTO: FAA Preempts Prohibition Against Class Waivers ---------------------------------------------------------------- Jackie Fuchs, writing for Metropolitan News-Enterprise, reports that a woman and her father who signed a form automobile purchase agreement waived their right to initiate a class action, a district Court of Appeal ruled on Jan. 11. Div. Eight held that under the terms of the agreement, the Federal Arbitration Act preempted the California law, including the Consumer Legal Remedies Act's prohibition against class waivers. Andrea Naasz purchased a previously owned vehicle from West Covina Toyota. Her father, Israel Flores, cosigned the preprinted form contract. That agreement contained a clause allowing either party to request arbitration of disputes. It further provided that if a dispute was arbitrated, the purchaser gave up his or her right to initiate or participate in class actions. The contract provided that it would be governed by both federal and California law, and the arbitration clause specified that any arbitration would be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Vehicle Problems After the purchase, Ms. Naasz allegedly experienced a number of problems with her vehicle which the defendants were unable to repair. She and Mr. Flores filed suit, alleging individual claims as well as class claims for violations of the CLRA. After months of discovery, the dealership filed a motion to compel arbitration and stay the action, which Los Angeles Superior Court Judge Maureen Duffy-Lewis granted. Plaintiffs appealed under the "death knell" doctrine, which provides that an order effectively terminating class claims while allowing individual claims to proceed is immediately appealable. Justice Madeleine Flier, writing for the panel, agreed that the appellate court could review the order, even though an order compelling arbitration is not ordinarily appealable and may be reviewed only after the parties complete arbitration and appeal from the judgment. Given the class arbitration waiver in defendant's form contract, Justice Flier said, the order compelling arbitration effectively rang the death knell for the class claims. The panel, therefore, had jurisdiction to rule on Duffy-Lewis' order. Justice Flier noted that the sales contract contained a general choice of law provision, which stated that both federal law and California law applied to the contract. To the extent the two conflicted, the panel said, the Supremacy Clause mandated that federal law preempt state law. Case Cited In addition, Justice Flier noted, Sec. 2 of the FAA provides that the FAA preempts state laws inconsistent with its provisions and objectives, and under AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, FAA preemption extends to state laws standing "as an obstacle to the accomplishment and execution of the full purposes and objectives" of the FAA. Thus, she said, the arbitration clause was enforceable, notwithstanding a provision in the CLRA which states that "[a]ny waiver by a consumer of the provisions of [the CLRA] is contrary to public policy and shall be unenforceable and void." Justice Flier emphasized that the panel's holding did not invalidate the CLRA's antiwaiver provision altogether, only that it is preempted by the FAA. The justice rejected the plaintiffs' argument that applying preemption "would mean any number of illegal terms placed in arbitration clauses could be enforceable because the state laws making them illegal would be preempted by the FAA." They cited as examples a hypothetical provision forcing plaintiffs to hand over their first-born children at the beginning of the arbitration, or a term permitting the defendant to take a free punch at the plaintiff to commence the arbitration. Justice Flier responded: "Our holding does not lead to such absurd results . . . the defense of unconscionability to terms other than class arbitration waivers survives Concepcion . . . We cannot imagine how such terms would survive an unconscionability challenge." No Waiver The panel also refuted the plaintiffs' claims that defendant waived its right to arbitrate by engaging in discovery and pretrial motions without any mention of arbitration for months. Justice Flier said that defendant had no choice but to engage in the litigation process, since its arbitration clause was unenforceable prior to Concepion. The panel also made short work of plaintiffs' claims that the contract was unenforceable as a contract of adhesion, nothing that arbitration is a common and expected means of dispute resolution "in this day and age." In addition, Justice Flier said, the arbitration clause was in boldface and capital letters, and Ms. Naasz acknowledged that she had the opportunity to thoroughly read the contract before signing it. As a result, the clause was not unconscionable. Presiding Justice Elizabeth Grimes and Justice Laurence Rubin concurred in the opinion. Hallen Rosner, Christopher Barry and Angela Smith of Rosner, Barry & Babbitt were counsel for the plaintiffs. Robert Thompson, Charles Russell and George Koumbis of Callahan, Thompson, Sherman & Caudill represented the defendant. The case is Flores v. West Covina Auto Group, B238265. Asbestos Litigation ASBESTOS UPDATE: Joy Global Has 2,500 Pending Asbestos Cases ------------------------------------------------------------ Joy Global Inc., in its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 26, 2012, stated: "We and our subsidiaries are involved in various unresolved legal matters that arise in the normal course of operations, the most prevalent of which relate to product liability (including approximately 2,500 asbestos and silica- related cases), employment, and commercial matters." Joy Global Inc. is a manufacturer and servicer of high productivity mining equipment for the extraction of coal and other minerals and ores. The Company's equipment is used in mining regions throughout the world to mine coal, copper, iron ore, oil sands, and other minerals. ASBESTOS UPDATE: Navistar Int'l. Continues to Defend Fibro Claims ----------------------------------------------------------------- Navistar International Corporation in its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 31, 2012, stated: "Along with other vehicle manufacturers, we have been subject to an increase in the number of asbestos-related claims in recent years. In general, these claims relate to illnesses alleged to have resulted from asbestos exposure from component parts found in older vehicles, although some cases relate to the alleged presence of asbestos in our facilities. In these claims we are not the sole defendant, and the claims name as defendants numerous manufacturers and suppliers of a wide variety of products allegedly containing asbestos. We have strongly disputed these claims, and it has been our policy to defend against them vigorously. It is possible that the number of these claims will continue to grow, and that the costs for resolving asbestos related claims could become more significant in the future." Navistar International Corporation is a holding company, whose principal operating subsidiaries are Navistar, Inc. and Navistar Financial Corporation. The Company is a manufacturer of International brand commercial and military trucks, IC Bus brand buses, MaxxForce brand diesel engines, Workhorse Custom Chassis brand chassis for motor homes and step vans, and Monaco RV recreational vehicles (RV), as well as a provider of service parts for all makes of trucks and trailers. ASBESTOS UPDATE: Ecology Unit Still Faces Draft Consent Order ------------------------------------------------------------- On September 21, 2012 the Colorado Department of Public Health and Environment issued a proposed Compliance Order on Consent to the City and County of Denver and to Walsh. Walsh is a majority-owned subsidiary of Ecology and Environment, Inc. The proposed Consent Order concerns construction improvement activities of certain property owned by Denver which was the subject of asbestos remediation. Denver had entered into a contract with Walsh for Walsh to provide certain environmental consulting services (asbestos monitoring services) in connection with the asbestos containment and/or removal performed by other contractors at Denver's real property. The Consent Order, among other provisions, proposes a violation penalty of $216,000, jointly and severally to be paid by Denver and Walsh. Under Walsh's environmental consulting contract with Denver, Walsh has agreed to indemnify Denver for certain liabilities which would include the imposition of this proposed penalty. Walsh has put its professional liability carrier on notice of this claimed penalty. At this time, neither Walsh nor Denver has filed a response to the September 21, 2012 draft Consent Order. It is the position of Walsh that it has fully complied with all applicable Colorado laws, regulations and statutes in connection with its role as an environmental consultant to Denver and the claimed violations are not applicable to the activities of Walsh in connection with its environmental consulting contract with Denver. The Company believes that this administrative proceeding involving Walsh will not have an adverse material effect upon the operations of the Company. No further updates were reported in Ecology And Environment, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended October 31, 2012. Ecology and Environment, Inc., an environmental consulting firm, provides professional services to the government and private sectors worldwide. It offers a range of environmental consulting services, including critical feature/fatal flaw analyses; environmental impact assessments; feasibility and siting studies; and permitting and due diligence audits. ASBESTOS UPDATE: Esterline Still Subject to Potential Liabilities ----------------------------------------------------------------- Esterline Technologies Corporation remains subject to potential liabilities relating to certain products its manufactured containing asbestos, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 26, 2012. The Company states: "To date, our insurance has covered claims against us relating to those products. Commencing November 1, 2003, insurance coverage for asbestos claims has been unavailable. However, we continue to have some insurance coverage for exposure to asbestos contained in our products prior to that date. "As a result of the termination of the NASA Space Shuttle program, manufacturing of rocket engine insulation material containing asbestos ceased in July 2010. In December 2011, we dismantled our facility used to manufacture the asbestos-based insulation for the Space Shuttle program. We have an agreement with the customer for indemnification for certain losses we may incur as a result of asbestos claims relating to a product we previously manufactured, but we cannot assure that this indemnification agreement will fully protect us from losses arising from asbestos claims. "To the extent we are not insured or indemnified for losses from asbestos claims relating to our products, asbestos claims could adversely affect our operating results and our financial condition." Esterline Technologies Corporation is a manufacturing company serving aerospace and defense customers. The Company designs, manufactures and markets engineered products and systems. ASBESTOS UPDATE: Toro Company Still Subject to Asbestos Claims -------------------------------------------------------------- The Toro Company is subject to litigation and administrative and judicial proceedings with respect to claims involving asbestos and the discharge of hazardous substances into the environment. Some of these claims assert damages and liability for personal injury, remedial investigations or clean-up and other costs and damages. No further updates were reported in the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 31, 2012. The Toro Company designs, manufactures, and markets professional turf maintenance equipment and services, turf irrigation systems, agricultural micro-irrigation systems, landscaping equipment and lighting, and residential yard and snow removal products. ASBESTOS UPDATE: Piedmont Natural Gas Center Still Has Asbestos --------------------------------------------------------------- One of Piedmont Natural Gas Company, Inc.'s resource centers has coatings containing asbestos on some of their pipelines. "We have educated our employees on the hazards of asbestos and implemented procedures for removing these coatings from our pipelines when we must excavate and expose portions of the pipeline, which generally occur only in small increments," the Company stated in its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended October 31, 2012. Piedmont Natural Gas Company, Inc., an energy services company, engages in the distribution of natural gas to residential, commercial, industrial, and power generation customers in portions of North Carolina, South Carolina, and Tennessee. ASBESTOS UPDATE: Chase Corp. Still a Defendant in "Scott" Suit -------------------------------------------------------------- Chase Corporation is one of over 100 defendants in a lawsuit pending in Ohio which alleges personal injury from exposure to asbestos contained in certain Chase products. The case is captioned Marie Lou Scott, Executrix of the Estate of James T. Scott v. A-Best Products, et al., No. 312901 in the Court of Common Pleas for Cuyahoga County, Ohio. The plaintiff in the case issued discovery requests to Chase in August 2005, to which Chase timely responded in September 2005. The trial had initially been scheduled to begin on April 30, 2007. However, that date had been postponed and no new trial date has been set. As of November 30, 2012, there have been no new developments as this Ohio lawsuit has been inactive with respect to Chase, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended November 30, 2012. Chase Corporation, through its subsidiaries, is a global manufacturer of tapes, laminates, sealants, and coatings for high reliability applications. ASBESTOS UPDATE: Discovery Ongoing in "Jansen" Suit in Wisconsin ---------------------------------------------------------------- Chase Corporation was named as one of the defendants in a complaint filed on June 25, 2009, in a lawsuit captioned Lois Jansen, Individually and as Special Administrator of the Estate of Thomas Jansen v. Beazer East, Inc., et al., No: 09-CV-6248 in the Milwaukee County (Wisconsin) Circuit Court. The plaintiff sued a number of alleged manufacturers or distributors of asbestos- containing products, including Royston Laboratories (formerly an independent company and now owned by Chase Corporation), alleging that her husband died from workplace exposure. The other defendants have either settled or had the complaint against them dismissed. Chase has filed an answer to the claim denying the material allegations in the complaint. The parties are currently engaged in discovery and motion practice, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended November 30, 2012. Chase Corporation, through its subsidiaries, is a global manufacturer of tapes, laminates, sealants, and coatings for high reliability applications. ASBESTOS UPDATE: BlueLinx Still Potentially Liable for Claims ------------------------------------------------------------- BlueLinx Holdings Inc. related in its Form S-1 filing with the U.S. Securities and Exchange Commission that Georgia-Pacific is a defendant in suits brought in various courts around the nation by plaintiffs who allege that they have suffered personal injury as a result of exposure to products containing asbestos. These suits allege a variety of lung and other diseases based on alleged exposure to products previously manufactured by Georgia-Pacific. "Although the terms of the asset purchase agreement provide that Georgia-Pacific will indemnify us against all obligations and liabilities arising out of, relating to or otherwise in any way in respect of any product liability claims (including, without limitation, claims, obligations or liabilities relating to the presence or alleged presence of asbestos-containing materials) with respect to products purchased, sold, marketed, stored, delivered, distributed or transported by Georgia-Pacific and its affiliates, including the Division prior to the acquisition, it could be possible that circumstances may arise under which asbestos-related claims against Georgia-Pacific could cause us to incur substantial costs. "For example, in the event that Georgia-Pacific is financially unable to respond to an asbestos product liability claim, plaintiffs' lawyers may, in order to obtain recovery, attempt to sue us, in our capacity as owner of assets sold by Georgia- Pacific, despite the fact that the assets sold to us did not contain asbestos. Asbestos litigation has, over the years, proved unpredictable, as the aggressive and well-financed asbestos plaintiffs' bar has been creative, and often successful, in bringing claims based on novel legal theories and on expansive interpretations of existing legal theories. These claims have included claims against companies that did not manufacture asbestos products. As a result of these factors, a number of companies have been held liable for amounts far in excess of their perceived exposure. Although we believe, based on our understanding of the law as currently interpreted, that we should not be held liable for any of Georgia-Pacific's asbestos-related claims, and, to the contrary, that we would prevail on summary judgment on any such claims, there is nevertheless a possibility that new theories could be developed, or that the application of existing theories could be expanded, in a manner that would result in liability for us. Any such liability ultimately could be borne by us if Georgia-Pacific is unable to fulfill its indemnity obligation under the asset purchase agreement with us." BlueLinx Holdings Inc., through its subsidiary, BlueLinx Corporation, engages in the distribution of building products in North America. ASBESTOS UPDATE: Hickok Still Pursuing Dismissal of Becker Suit --------------------------------------------------------------- Hickok Incorporated is a named defendant along with numerous other companies in a suit in Wayne County Circuit Court in the State of Michigan regarding asbestos harm to the plaintiff (Becker v. Hickok Incorporated). The Company has engaged a Michigan attorney to provide representation. The Company believes the suit is without merit and is pursuing dismissal of the case. No further updates were reported in the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2012. The Company was also a named defendant along with numerous other companies in a suit in the Eighth Judicial District of the Supreme Court of the State of New York regarding asbestos harm to the plaintiff (Hake v. Hickok Incorporated). The Company was dismissed from the suit in July 2012. Hickok Incorporated, together with its subsidiaries, designs and manufactures diagnostic tools for automotive diagnostics and testing in United States. ASBESTOS UPDATE: Ct. Grants Owners Insurance' Summary Judgment Bid ------------------------------------------------------------------ The Hon. Hugh Lawson, Senior Judge at the U.S. District Court for the Middle District of Georgia, Valdosta Division, in a decision dated Dec. 11, 2012, granted the motion for summary judgment filed by Plaintiffs Owners Insurance Company and Auto-Owners Insurance Company by virtue of the Defendant's failure in answering the complaint. The Plaintiffs filed a lawsuit against Demott Tractor Co. seeking a declaration that no insurance coverage is afforded under certain policies that they issued to Demott for claims asserted against it in an asbestos-related personal injury lawsuit filed by a certain Jeffery Daniel as Executor of the Estate of Virgieline Daniel. In that case, Daniel claims that Decedent Virgieline Daniel was exposed to asbestos from products manufactured, sold, or distributed by Demott. Demott then seeks defense and indemnity for the claims asserted against it under insurance policies issued to Demott by Plaintiffs. Judge Lawson held that because Demott failed to file an answer to the complaint, the Clerk of Court entered a default against it on April 25, 2012. As a result of his default, Demott admits the Plaintiffs' allegations of fact, including the Plaintiffs' assertions about coverage. In addition, Daniel also filed a stipulation in September 2012 in which he states that that "he does not contest any coverage issues raised in this declaratory judgment action." The case is OWNERS INSURANCE COMPANY and AUTO-OWNERS INSURANCE COMPANY, Plaintiffs, v. JEFFERY DANIEL, as Executor of the Estate of VIRGIELINE DANIEL, and DEMOTT TRACTOR CO., INC., Defendants, Civil Action No. 7:12-CV-27 (HL) (M.D. Ga.). A copy of Judge Lawson's Decision is available at http://is.gd/Hs5YYsfrom Leagle.com. ASBESTOS UPDATE: NJ Court Dismisses Class Suit v. BASF, Cahill -------------------------------------------------------------- Defendants BASF Catalysts LLC, Cahill Gordon & Reindel LLP, Howard G. Sloane, Ira J. Dembrow and Scott A. Martin, Thomas D. Halket, Arthur A. Dornbusch II, and Glen Hemstock filed several motions to dismiss an amended class action complaint filed in a putative class action, which seeks nationwide relief for the alleged misconduct of BASF and its then-counsel, Cahill, in connection with thousands of asbestos exposure lawsuits filed by individuals primarily in state courts throughout the United States over a period of more than 25 years. In a Dec. 12, 2012, decision, Judge Stanley R. Chesler of the U.S. District Court for the District of New Jersey dismissed the entire Amended Complaint as barred by the Anti-Injunction Act and for failure to state a claim upon which relief may be granted. Judge Chesler held that, first, there is no indication that Plaintiffs could cure the various impediments and deficiencies preventing the claims in the Amended Complaint from surmounting the Defendants' motion to dismiss; and, second, the Amended Complaint was in fact filed in response to the Defendants' initial round of motions to dismiss in an attempt to address those challenges. Plaintiffs, in short, have already explored revising their claims and nevertheless, have failed to construct a legally sufficient pleading, Judge Chesler ruled. The case is KIMBERLEE WILLIAMS, et al., Plaintiffs, v. BASF CATALYSTS LLC, et al., Defendants, Civil Action No. 11-1754 (SRC)(D. N.J.). A copy of Judge Chesler's Decision is available at http://is.gd/WCBQNUfrom Leagle.com. ASBESTOS UPDATE: Court Says Death Ends Atty.-Client Relationship ---------------------------------------------------------------- Judge Ted Stewart of the U.S. District Court for the District of Utah, Central Division, granted a motion to strike filed by Defendant General Electric Company and denied a motion to stay filed by the law firm Brayton Purcell, LLP, in a lawsuit filed by Aaron Anderson, who alleged that he had sustained asbestos-related lung injuries as a result of his inhalation of asbestos fibers through his occupational exposure to asbestos." The Plaintiff passed away on Oct. 31, 2012. Bryan Purcell, who represents the Plaintiff, filed the motion for stay so that a personal representative can be appointed and the Complaint be amended to allege wrongful death. General Electric opposed the Motion to Stay and filed the Motion to Strike. In granting the Motion to Strike, Judge Stewart agreed with General Electric, which argued that Brayton Purcell does not represent a party in the case. Judge Stewart explained that as an agency relationship, the attorney-client relationship terminates upon the death of the client. Thus, as a result of the Plaintiff's death, Brayton Purcell does not represent any party to the action. Judge Stewart denied Brayton Purcell's Motion to Stay noting that it is no longer necessary as General Electric has suggested that, with Plaintiff's death, all discovery deadlines are moot and, should a new plaintiff be added and a new complaint filed, discovery will need to be reopened. The case is AARON ANDERSON, Plaintiff, v. EATON CORPORATION, et al., Defendants, Case No. 2:10-CV-905 TS (D. Utah). A copy of Judge Stewart's Decision dated Dec. 13, 2012, is available at http://is.gd/vkE8Tbfrom Leagle.com ASBESTOS UPDATE: NY Ct. Junks Bid to Dismiss Ex-Mechanic's Suit --------------------------------------------------------------- Judge Sherry Klein Heitler of the Supreme Court, New York County, denied the summary judgment motion filed by The Goodyear Tire & Rubber Company seeking to dismiss an asbestos-related personal injury action filed by John Chilarski who was diagnosed with mesothelioma and who died in March 2011. Prior to his death, Mr. Chilarski testified that he worked with a myriad of asbestos- containing products over the course of his career as aircraft mechanic. In denying the summary judgment motion, Judge Heitler found Goodyear's arguments to be without merit. Judge Heitler noted that Mr. Chilarski identified Goodyear as the manufacturer of the braking systems on the Boeing 747 and Douglas DC-8 aircraft while he worked for Pan American Airlines at the Idlewild International Airport and Goodyear does not dispute that Goodyear Aerospace Corporation manufactured asbestos-containing braking systems for installation on DC-4, DC-6, and Boeing 707 aircrafts. GAC was formerly a wholly owned subsidiary of Goodyear. Judge Heitler also noted that the Plaintiffs have provided unrefuted documentary evidence which demonstrates that GAC's DC-6 compatible brakes assemblies contained asbestos-containing parts. The case is HELEN CHILARSKI and MICHAEL CHILARSKI, as Personal Representative of the Estate of JOHN CHILARSKI, deceased, Plaintiffs, v. A.W. CHESTERTON COMPANY, et al., Defendants, Docket No. 190391/10, Motion Seq. 008 (N.Y.). A copy of Judge Heitler's Decision dated Dec. 12, 2012, is available at http://is.gd/wyDZaR from Leagle.com. ASBESTOS UPDATE: NY Ct. Awards $22,600 in Fees to Lockheed, et al. ------------------------------------------------------------------ Thermwell Products, Inc., which distributed products called "Frost King Rope Caulk" filed a third-party indemnification action against Defendants Martin Marietta Materials, Inc., Lockheed Martin Corporation, Nitto Denko America, Inc., Nitto Denko Automotive, Inc., and Permacel Kansas City, Inc., alleging these defendants manufactured and owned the trademark for the product. In a recommendation dated May 22, 2012, Special Referee Gammerman recommended that Martin Marietta, Nitto Denko, and Lockheed be awarded attorneys' fees in the amounts of $10,000, $7,000, and $5,600, respectively. Lockheed moved to confirm the Report while Thermwell opposed the motion, arguing that the Defendants have not shown that their costs and fees were reasonable and that they submitted invoices for costs and fees beyond those permitted by an April 5, 2012 order. The indemnification action is related to claims brought by Roberta and Stuart Friedman in which Mrs. Friedman alleged that she was exposed to asbestos from "Frost King Rope Caulk." In a decision dated Dec. 13, 2012, Judge Sherry Klein Heitler of the Supreme Court, New York County, confirmed Referee Gammerman's recommendation after finding that the recommendation is substantially supported by the record. Contrary to Thermwell's contentions, Referee Gammerman plainly accounted for Thermwell's concerns regarding the prevailing rates in asbestos litigation and that some of the requested fees were not at issue in light of prior motion practice between the parties. Upon full review of the evidence, Judge Heitler declined Thermwell's contention that the recommended fees were based upon submitted invoices for costs and fees beyond those permitted by the April 5, 2012 order. The case is THERMWELL PRODUCTS, INC., Plaintiff, v. NITTO DENKO AMERICA, INC., NITTO DENKO AUTOMOTIVE, INC., PERMACEL KANSAS CITY, INC., MARTIN MARIETTA MATERIALS, INC., LOCKHEED MARTIN CORPORATION, Defendants, Docket No. 112195/11, Motion Seq. No. 005 (N.Y.). A copy of Judge Heitler's Decision is available at http://is.gd/ubV9sIfrom Leagle.com. ASBESTOS UPDATE: AHL Dropped as Defendant in Exposure Suit ---------------------------------------------------------- Plaintiff Joseph Blando, a citizen and resident of Missouri, worked as an operating engineer in a building that was formerly owned by Business Men's Assurance Company of America. The Plaintiff alleges that, during the construction of the BMA Tower, he was subjected to sprayed limpet asbestos. The Plaintiff alleges that as a result of his exposure to the asbestos, he developed pleural thickening, a calcified granuloma, and other asbestos-related diseases. In December 2009, the plaintiff, along with his wife, filed suit against BMA, Liberty Life Insurance Company, and Harry Mosby in Missouri state court, alleging claims for premises liability, negligence, and false representations. The Plaintiff then added Athene Annuity & Life Assurance Company, as successor to BMA and Liberty, and Athene Holding Ltd., as successor to Athene annuity, as defendants. The Hon. Scott O. Wright, Senior District Judge, of the U.S. District Court for the Western District Missouri, Western Division, in a decision dated Dec. 19, 2012, granted AHL's Combined Motion to Dismiss for Lack of Personal Jurisdiction, Failure to State a Claim, and Lack of Valid Service. Judge Wright ruled that, in this case, AHL, as the parent corporation, is not subject to the Court's general jurisdiction. In this case, the Plaintiff has failed to submit any evidence suggesting AHL "controlled and dominated the affairs" of Liberty, thus the Court concluded AHL was not acting as Liberty/Athene Annuity's alter ego. Further, citing an Eighth Circuit ruling, Judge Wright held that, a parent corporation is not present in a state of one of its subsidiary simply because the subsidiary resides there. Lastly, Judge Wright noted that the Plaintiff has failed to meet his burden of proving jurisdiction by submitting any affidavits, testimony, or other documents in response to AHL's challenge to jurisdiction. Rather, the Plaintiff rests on the conclusory allegations in his brief and in his complaint to establish minimum contacts. The case is JOSEPH A. BLANDO, Plaintiff, v. BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, et al., Defendants, Case No. 12-0559-CV-W-SOW (W.D. Mo.). A copy of Judge Wright's Decision is available at http://is.gd/n2ZnNmfrom Leagle.com. ASBESTOS UPDATE: Calif. Ct. Affirms Judgment Favoring Thomas Dee ---------------------------------------------------------------- Plaintiff David J. Palomares appeals from a trial court's grant of summary judgment to defendant Thomas Dee Engineering Company and the resulting judgment. The parties raise numerous issues in the case, which involves a claim by the Plaintiff that several decades ago, he was exposed as an industrial laundry worker to asbestos that came from clothing of the Defendant, a customer of Sequoia Laundry, and that this was a substantial factor in his development of mesothelioma. In a decision dated Dec. 20, 2012, the Court of Appeals of California, First District, Division Two, affirmed the trial court's judgment holding that the Plaintiff has not cited anything in the record that allows it to draw reasonable inferences that establish a triable issue of material fact regarding causation. The Court of Appeals noted that the Plaintiff does not provide any evidence from which it can be reasonably inferred that he was exposed to asbestos-containing laundry at Sequoia that came from the Defendant during the approximately one year plaintiff worked there, or at any other time. The Defendant, the Court of Appeals further noted, is a refractory subcontractor and not an asbestos manufacturer. The case is DAVID J. PALOMARES, Plaintiff and Appellant, v. THOMAS DEE ENGINEERING COMPANY, Defendant and Respondent, No. A131745 (Calif.). A copy of the Court of Appeal's Decision is available at http://is.gd/hWD2avfrom Leagle.com. ASBESTOS UPDATE: 59 Cases Consolidated With Inmates' Exposure Suit ------------------------------------------------------------------ Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York, in an order dated Dec. 20, 2012, directed 59 actions to be consolidated for all purposes to proceed under the lead case, Butler, et al. v. DeMarco, et al., 11-CV-2602 (JS)(GRB). Shearman & Sterling LLP is appointed pro bono counsel to the Plaintiffs in 11-CV-2602. The case arises from allegations that men detained in the Suffolk County Correctional Facilities, the majority of whom have not been convicted of any crime, are subjected to inhumane conditions that pose unreasonable and substantial risks to their health. The men, according to the complaint, are forced to live in overcrowded conditions, amidst filth, overflowing sewage, and pervasive mold, rust, and vermin. The men are also at risk of exposure to asbestos from the leaking pipes, which are lined with insulation believed to contain asbestos. The leaking water has caused floor tiles in the facility to turn upward, exposing the glue underneath them, also believed to contain asbestos. The case is TOMMIE MITCHELL, Plaintiff, v. VINCENT F. DeMARCO, County Sheriff, Defendant, No. 12-CV-5789) (JS)(GRB) (E.D.N.Y.). A copy of Judge Seybert's Order is available at http://is.gd/XX7Zs6from Leagle.com. The Plaintiffs are represented by: Daniel Hector Rees LaGuardia, Esq. Edward Garth Timlin, Esq. Melissa Jane Godwin, Esq. SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022-6069 Tel: (212) 848-4000 Fax: (212) 848-7179 Email: daniel.laguardia@shearman.com edward.timlin@shearman.com melissa.godwin@shearman.com The Defendants are represented by Arlene S. Zwilling, Esq., Office of the Suffolk County Attorney, in Hauppauge, New York. The New York Civil Liberties Union is represented by Corey Stoughton, Esq. -- cstoughton@nyclu.org ASBESTOS UPDATE: Flintkote Plan Confirmed, ITCAN Objection Junked ----------------------------------------------------------------- Judge Judith Fitzgerald of the U.S. Bankruptcy Court for the District of Delaware confirmed the Amended Joint Plan of Reorganization of The Flintkote Company and Flintkote Mines Limited, supported by the Official Committee of Asbestos Personal Injury Claimants and the Future Claimants' Representative, after having found that the Plan complies with Sections 1129 and 524(g) in all respects. Judge Fitzgerald also recommended that the U.S. District Court for the District of Delaware affirm confirmation of the Plan and the Sec. 524(g) injunction. Confirmation hearings were held on October 25 and 26, 2010, and continued on September 12, 13, and 19, 2011. Post-trial briefing was completed on January 20, 2012. The Court heard closing arguments on March 28, 2012, after which it accepted supplemental briefing on the issue of whether Flintkote may formally abandon its alter ego claim in the Plan. The supplemental briefing was completed on May 15, 2012, making the matter ripe for disposition. The only unresolved objections to Plan confirmation are lodged by Imperial Tobacco Canada Limited. From 1917 until 1987, Flintkote was primarily in the business of manufacturing, processing, and distributing building materials. Between the 1930s and the 1980s, a wide variety of those materials contained asbestos. Flintkote was acquired by Genstar Corporation in 1979. In 1986, Genstar was acquired by ITCAN. Flintkote remained an indirect, wholly-owned subsidiary of ITCAN until 2003, when ITCAN transferred Flintkote's stock to a charitable trust. ITCAN argues first that it is a creditor, and thus by definition a "party in interest" with standing to object to confirmation. Secondly, ITCAN argues that even if it is not a creditor of the estate it is still a "party in interest" because the Plan impairs various rights and defenses it has with respect to both Flintkote and individual asbestos plaintiffs in the Dividend Recovery Litigation, which was filed by Flintkote against ITCAN for fraudulent conveyance, wrongful dividen, breach of fiduciary duty, recission and other related theories, arising in connection with ITCAN's alleged hostile takeover of Flintkote. Judge Fitzgerald, in a memorandum dated Dec. 21, 2012, made these rulings: (a) To the extent that ITCAN may have a claim in the future against Flintkote related to alter ego liability, that claim is speculative and cannot confer "party in interest" standing to object to plan confirmation. The the injury in fact must be "actual and imminent," and here the injury is far from imminent. (b) ITCAN has denied throughout the entire bankruptcy case that it is Flintkote's alter ego and has stated several times that even if it is found to be Flintkote's alter ego, it will not pay anything to asbestos victims because, as a Canadian company with its assets in Canada, no judgment would be enforceable against it. The mere unlikely possibility of ITCAN holding a claim against Flintkote by virtue of eventually compensating an asbestos plaintiff for Flintkote's actions on an alter ego theory is too remote to constitute an "injury in fact" for purposes of constitutional standing and/or "party in interest" standing under Sec. 1109(b). (c) Nothing in the Plan imposes tort liability on ITCAN. Regardless of whether or not the Plan is confirmed, individual asbestos victims may still bring alter ego claims against ITCAN in the tort system as Sec. 524(g) does not protect non-debtor entities unless, pursuant to Sec. 524(g)(4), those entities qualify and contribute to the funding of the trust, which ITCAN elected not to do in the case. (d) With respect to ITCAN's objections that its rights are impaired by the Plan because Flintkote shares certain insurance assets with ITCAN's subsidiary, Genstar, the TDP under the Plan is not the source of insurance depletion. A copy of Judge Fitzgerald's Memorandum is available at http://is.gd/L3XvOVfrom Leagle.com. About The Flintkote Company Headquartered in San Francisco, California, The Flintkote Company is engaged in the business of manufacturing, processing and distributing building materials. Flintkote Mines Limited is a subsidiary of Flintkote Company and is engaged in the mining of base-precious metals. The Flintkote Company filed for Chapter 11 protection (Bankr. D. Del. Case No. 04-11300) on April 30, 2004. Flintkote Mines Limited filed for Chapter 11 relief (Bankr. D. Del. Case No. 04-12440) on Aug. 25, 2004. Kevin T. Lantry, Esq., Jeffrey E. Bjork, Esq., Dennis M. Twomey, Esq., Jeremy E. Rosenthal, Esq., and Christina M. Craige, Esq., at Sidley Austin, LLP, in Los Angeles; James E. O'Neill, Esq., and Laura Davis Jones, Esq., at Pachulski Stang Ziehl & Jones LLP, in Wilmington, Del., represent the Debtors in their restructuring efforts. Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, in New York, N.Y.; Peter Van N. Lockwood, Esq., Ronald E. Reinsel, Esq., at Caplin & Drysdale, Chartered, in Washington, D.C.; and Philip E. Milch, Esq., at Campbell & Levine, LLC, in Wilmington, Del., represent the Asbestos Claimants Committee as counsel. When Flintkote Company filed for protection from its creditors, it estimated more than $100 million each in assets and debts. When Flintkote Mines Limited filed for protection from its creditors, it estimated assets of $1 million to $50 million, and debts of more than $100 million. ASBESTOS UPDATE: TIG Insurance's Bid for Setoff Declaration Junked ------------------------------------------------------------------ TIG Insurance Company appeals the Circuit Court for Washington County's grant of Appellees Allegheny Energy, Inc., Monongahela Power Company, The Potomac Edison Company, West Penn Power Company, and Allegheny Energy Supply Company, LLC's motion for partial summary judgment. TIG raised these issues: Whether the Circuit Court (I) erred by entering summary judgment declaring that Pennsylvania law applies to the interpretation and application of the terms of the insurance policies at issue; and (II), erred by failing to enter summary judgment for TIG on the grounds that TIG is entitled to a set-off against the Appellees' loss which reflects the settling insurers' proportionate shares of coverage responsibility for the loss? Allegheny, the holding company of Monongahela Power, Potomac Edison, West Penn Power and Allegheny Energy, demanded insurers to indemnify it for costs related to the settlement of thousands of asbestos-related exposure suits. The Court of Special Appeals of Maryland, in a decision dated Dec. 21, 2012, affirmed the Circuit Court's ruling agreeing with the Circuit Court that it still needs to be aware of the amount owed by TIG and the settling insurers' apportioned share of liability and not, presently, it is presently not possible to determine the pro rata shares of all settling insurers because there is no way of knowing how many settling insurers there will be when subject insurance policy is triggered or the total liability for which the settling insurers will be responsible. Thus, a declaration that TIG is entitled to a set-off is not possible for a myriad of reasons. The case is TIG INSURANCE COMPANY, v. MONONGAHELA POWER COMPANY, ET AL., No. 2842, September Term, 2010 (Md. App. Ct.). A copy of the Court of Special Appeals' Decision is available at http://is.gd/vxkGCFfrom Leagle.com. ASBESTOS UPDATE: Ct. Allows Legal Malpractice Claims v. 2 Firms --------------------------------------------------------------- Judge Joseph M. Hood of the U.S. District Court for the Eastern District of Kentucky, Central Division, Lexington, denied Motley Rice, LLC, and Provost Umphrey Law Firm, LLP's motion to dismiss the legal malpractice claims filed by Donna Bruszewski, on behalf of her husband, Thomas Bruszweski, asserting that the Defendants negligently failed to file their asbestos-related exposure suit before the applicable statute of limitations expired. Judge Hood found that the arbitration clauses found in the agreements between the Bruszweskis and Provost Umphrey and between Provost Umphrey and Motley Rice are oppressive to the Plaintiff, are directly contradictory with each other, and are unconscionable. Judge Hood also ruled that there was attorney- client relationship between the Bruszweskis, on the one hand, and Provost Umphrey and Motley Rice, on the other hand, and that the law firms are clearly responsible for filing the Bruszweskis' lawsuit and defending claims on their behalf. The case is DONNA BRUSZEWSKI, Personally and as the Executrix of the Estate of Thomas Bruszewski, Plaintiff, v. MOTLEY RICE, LLC, and PROVOST UMPHREY LAW FIRM, LLP, Defendants, No. 5:12-cv-46-JMH (E.D. Ky.). A copy of Judge Hood's Decision dated Dec. 21, 2012, is available at http://is.gd/XAzPhdfrom Leagle.com. ASBESTOS UPDATE: Tex. Ct. Affirms Ruling in Legal Malpractice Suit ------------------------------------------------------------------ Appellant Charlotte Hearn challenges a trial court's entry of a final summary judgment on her legal malpractice claims against Kathryn Snapka. In a decision dated Dec. 28, 2012, the Court of Appeals of Texas, Thirteenth District, Corpus Christi, Edinburg, affirmed the trial court's decision. Hearn, who was diagnosed with well-differentiated papillary mesothelioma, retained Snapka to represent her with respect to personal injury claims arising from her WDPM. Snapka then filed a lawsuit on behalf of Hearn against Hearn's former employer, Alcoa, alleging claims for negligence, strict liability, and premises liability. While the suit was still pending in federal court, Hearn sued Snapka for legal malpractice alleging that Snapka negligently failed to sue or otherwise pursue products liability claims against other defendants who manufacture asbestos products to which she was exposed. The Court of Appeals held that (1) the trial court did not abuse its discretion when it struck the affidavits of three persons offered by Hearn from evidence because Hearn failed to affirmatively establish the reliability of the opinions contained in each affidavit; and (2) the trial court did not err when it entered the final summary judgment because Hearn failed to raise a fact issue on the "suit-within-a-suit" requirement and the amount of damages that would have been recoverable and collectible had the other suit been properly prosecuted. The case is CHARLOTTE HEARN, Appellant, v. KATHRYN SNAPKA, Appellee, No. 13-11-00332-CV (Tex. App. Ct.). A copy of the Court of Appeals' Decision is available at http://is.gd/WajuiDfrom Leagle.com. ASBESTOS UPDATE: Appeal in Whistleblower Suit v. Ysleta ISD Junked ------------------------------------------------------------------ In a whistleblower case, the Ysleta Independent School District appeals the trial court's order denying its plea to the jurisdiction. The District contends that the trial court erred because Marcelino Franco failed to report a violation of law to an "appropriate law enforcement authority" as required by the Whistleblower Act. Franco was employed as a principal of a pre- kindergarten school when he reported asbestos hazards in his school to District officials. Slightly more than two months after reporting the hazards, Franco was suspended. Franco then sued the District pursuant to the Whistleblower Act. In an opinion dated Dec. 27, 2012, the Court of Appeals of Texas, Eighth District, El Paso, affirmed the trial court's decision. As defined by the Whistleblower Act, a report is made to an appropriate law enforcement authority if the authority is "a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law." The Court of Appeals pointed out that the evidence establishes that Franco subjectively believed that the superintendent and trustees were authorized to regulate under or enforce the Asbestos Act. In particular, Franco's deposition, reveals his subjective belief. Franco testified that he reported a violation of the Asbestos Act to the District, which he contended was a law enforcement authority. In light of the foregoing and indulging all reasonable inferences in favor of Franco, the Court of Appeals concluded that Franco produced sufficient evidence of his good faith belief that the District's superintendent and trustees were authorized to regulate under or enforce the Asbestos Act and that his belief was reasonable in light of his training and experience. The case is YSLETA INDEPENDENT SCHOOL DISTRICT, Appellant, v. MARCELINO FRANCO, Appellee, No. 08-12-00061-CV (Texas). A copy of the Court of Appeals' Decision is available at http://is.gd/rPTHEI from Leagle.com. ASBESTOS UPDATE: Court Reverses Forum Ruling v. Illinois Central ---------------------------------------------------------------- In an opinion dated Dec. 28, 2012, the Supreme Court of Illinois reversed the judgment of an appellate court and the order of the circuit court of St. Clair County denying the motion of Defendant Illinois Central Railroad Company to dismiss a personal injury lawsuit of William Fennell based on interstate forum non conveniens. The Supreme Court also remanded the case to the circuit court with directions to dismiss the action. In October 2002, the Plaintiff, with more than 80 additional named plaintiffs, brought an action under the Federal Employers' Liability Act against Illinois Central. The Plaintiffs sought recovery for personal injuries they allegedly sustained as a result of exposure to "asbestos and asbestos-containing products" while employed by the Defendant. The Illinois Supreme Court held that the circuit court failed to recognize several private and public interest factors in its analysis and thus concluded that the circuit court abused its discretion in denying the Defendant's forum non conveniens motion to dismiss. The Illinois Supreme Court pointed out that: -- The circuit court failed to recognize that the Plaintiff originally filed his action in a Mississippi circuit court, and the action was dismissed without prejudice. However, instead of refiling in his first choice of forum, the Plaintiff refiled in an Illinois court despite the record showing nothing that would suggest that the parties' ability to conduct discovery and engage in other pretrial matters was unduly hampered by proceeding in the Mississippi circuit court. -- The Plaintiff does not reside in Illinois, and the cause of action did not arise in Illinois. -- The Plaintiff resides in Hazlehurst, Mississippi, and the Defendant maintains offices in Memphis, Tennessee, and the Defendant correctly observed that the Plaintiff lives less than 25 miles from the circuit court of Copiah County, Mississippi, but is more than 530 miles from the circuit court of St. Clair County, located in Belleville, Illinois. -- With respect to the ease of access to testimonial, documentary, and other evidence, potential witnesses reside in Mississippi. Indeed, almost no one connected with Plaintiff's side of the case resides in Illinois. -- If the case were tried in St. Clair County, and the circuit court determines that viewing the premises is appropriate or necessary, it would be irrational for a jury composed of St. Clair County residents to travel to Mississippi or Louisiana to view the premises, when that viewing could be accomplished more expeditiously if this case were tried in Mississippi. The case is WALTER FENNELL, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, No. 113812 (Ill.). A copy of the Supreme Court's Decision is available at http://is.gd/Vm4AtNfrom Leagle.com. ASBESTOS UPDATE: Court Grants Successor's Summary Judgment Bid -------------------------------------------------------------- Plaintiff Lola Bouchard claims that she was exposed to asbestos brought home by her father and husband when they worked for Northwestern Glass Company at the East Marginal Way Facility in Seattle, and that these exposures to asbestos were substantial contributing factors in the development of her malignant pleural mesothelioma. SGC was named defendant as successor-in-interest to the Facility. In a decision dated Dec. 27, 2012, Judge Richard A. Jones of the U.S. District Court for the Western District of Washington, Seattle, granted SGC's motion for summary judgment holding that a reading into the agreement between SGC and the former owner of the Facility would show that SGC did not assume the liability for Ms. Bouchard's exposure to asbestos. The case is LOLA and MICHAEL BOUCHARD, Plaintiffs, v. CBS CORPORATION, et al. Defendants, Case No. C11-458RAJ (W.D. Wash.). A copy of Judge Jones' Decision is available at http://is.gd/oX0QuQfrom Leagle.com. ASBESTOS UPDATE: 9th Cir. Affirms Clean Air Act Offense Conviction ------------------------------------------------------------------ The United States Court of Appeals, Ninth Circuit, in an opinion dated Jan. 2, 2013, affirmed a district court's ruling and denied Charles Yi's appeal from his conviction and sentence, assigning error to a jury instruction, and to his custodial sentence for conspiracy to violate the Clean Air Act. The Ninth Circuit noted that the district court calculated Yi's total offense level as 31 under the Guidelines. In reaching that level, the court applied, and Yi now challenges, two enhancements: a nine-level enhancement for committing an environmental offense that "resulted in a substantial likelihood of death or serious bodily injury;" and a four-level enhancement for being "an organizer or leader of a criminal activity that involved five or more participants." The Ninth Circuit held that the district court's application of the nine-level increase for an offense resulting in a substantial likelihood of death or serious bodily injury was supported by clear and convincing evidence. The Ninth Circuit pointed out that evidence presented at trial showed that the work crew removing the Forest Glen ceilings did not wear proper respirators, were exposed to dry ceiling material, and that onsite dust far exceeded industry-recommended levels of asbestos. The Ninth Circuit added that the evidence at sentencing, aside from the actual on-site conduct, came primarily from a letter from the Environmental Protection Agency discussing chrysotile -- the form of asbestos present at Forest Glen. The Ninth Circuit also held that the district court rightfully found that Yi fit the role of an organizer or leader calling for a four-level increase. The Ninth Circuit pointed out that Yi knew the ceilings contained asbestos and that he was heavily involved in decision-making with regard to Forest Glen, particularly given the inexperience of his project managers. Further evidence showed that Yi earlier instructed one of his project managers to seek bids for asbestos abatement; Yi rejected the abatement bids; Millennium employees awaited Yi's ultimate approval prior to removal; and Yi instructed his project manager to draw up the contract for ceiling scraping. These facts support a permissible inference that Yi directed the ceilings be scraped, approving both the expenditure and the work itself, rather than simply placing his signature on a check made out to the contractor, the Ninth Circuit further pointed out. The case is UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES YI, AKA Jang Ho Yi, Defendant-Appellant, No. 11-50234 (9th Circ.). A full-text copy of the 9th Circuit's Decision is available at http://is.gd/lgmO3ufrom Leagle.com. ASBESTOS UPDATE: NY Court Retains Jurisdiction Over Successor Co. ----------------------------------------------------------------- An asbestos exposure action action was commenced in April 2011 by Arthur Herlihy and his wife Gail Herlihy to recover for personal injuries allegedly caused by Mr. Herlihy's exposure to asbestos- containing products while working for the Brooklyn Boiler Repair Company of Brooklyn, New York, from 1962 to 1991. In Mr. Herlihy's answers to interrogatories and at his deposition, he testified he was exposed to asbestos from products manufactured by Munaco NY. Munaco Packing & Rubber Co., Inc., a South Carolina corporation, moves to dismiss the complaint and all cross-claims asserted against it for lack of personal jurisdiction. Plaintiffs oppose, arguing that the Supreme Court, New York County, has jurisdiction over Munaco SC because it is the successor-in-interest to Munaco Packing and Rubber Co., Inc., a now dissolved New York corporation, which manufactured asbestos-containing products and which is alleged to have caused Mr. Herlihy's asbestos-related injuries. In a decision dated Jan. 2, 2013, Judge Sherry Klein Heitler denied the Defendant's motion after concluding that the totality of facts presented in the case strongly suggest that Munaco SC was a mere continuation of Munaco NY, the only difference between the two being a change of location. In support of her decision, Judge Heitler pointed out that: -- Munaco SC manufactured, distributed, and sold the same goods and products as Munaco NY to its same primary customer; -- Munaco SC employed six of Munaco NY's eight employees; -- utilized most of Munaco NY's equipment, including gasket presses, a cutting table, steel tables, and desks; -- Dennis Cullen, the sole owner of Munaco NY, was also the sole owner of Munaco SC until he passed away in or about 2004; -- it was Dennis Cullen, not Denton Taylor, who signed dissolution papers for Munaco NY in January of 1997, evidencing that Munaco NY was not, as defendant urges, sold to Mr. Taylor, but rather that Mr. Cullen simply continued his operation in South Carolina; and -- Munaco SC took with it to South Carolina Munaco NY's accounts receivable, accounts payable, and pension funds. The case is GAIL HERLIHY, Individually and as Executrix of the Estate of ARTHUR HERLIHY, Plaintiffs, v. A.F. SUPPLY CORP., et al., Defendants, Docket No. 190149/11, Motion Seq. No. 002 (N.Y.). A copy of Judge Heitler's Decision is available at http://is.gd/b2K7XTfrom Leagle.com. ASBESTOS UPDATE: Ohio Court Grants Inmates' Request for Discovery ----------------------------------------------------------------- In an order dated Jan. 7, 2013, Magistrate Judge Mark A. Abel of the United States District Court for the Southern District of Ohio, Eastern Division, granted plaintiffs William L. Ridenour and Tommy Lee Brown's motion to compel discovery of all non-privileged information relevant to their claims for declaratory relief and nominal, compensatory and punitive damages. The Plaintiffs have propounded interrogatories and document requests to the individual defendants in an effort to discover (1) whether the individual defendants were employed at Chillicothe correctional Institution (CCI), where both Plaintiffs were held, between May 14, 1984 and April 26, 2012 and what their respective job responsibilities were; (2) when and under what circumstances the individual defendants first became aware of the presence of asbestos at CCI; (3) what protective measures were taken to protect the health and safety of inmates and to minimize the risk of exposure to friable asbestos particles; and (4) with whom did defendants communicate, report to, instruct or direct in their personal efforts to protect the health and safety of inmates from exposure to friable asbestos particles. Plaintiffs indicate that these questions are merely examples of the actual interrogatories submitted by plaintiffs. The case is William L. Ridenour and Tommy Lee Brown, Plaintiffs, v. Ohio Department of Rehabilitation and Correction, et al., Defendants, Civil Action No. 2:10-cv-00493 (S.D. Ohio). A full- text copy of Magistrate Judge Abel's Decision is available at http://is.gd/42TcSGfrom Leagle.com. ASBESTOS UPDATE: Va. High Ct. Pens Ruling on Limitations Statute ---------------------------------------------------------------- The United States Court of Appeals for the Third Circuit entered an order of certification requesting that the Supreme Court of Virginia exercise jurisdiction pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, and answer the following question of law: Whether, under Va. Code Sec. 8.01-249(4), a plaintiff's cause of action for damages due to latent mesothelioma is deemed to accrue [I] at the time of the mesothelioma diagnosis or [II] decades earlier, when the plaintiff was diagnosed with an independent, non-malignant asbestos-related disease. In a Jan. 10, 2013 ruling by Chief Justice Cynthia D. Kinser, the Supreme Court held that when enacting Code Sec. 8.01-249(4), the General Assembly did not abrogate the common law indivisible cause of action principle and that a cause of action for personal injury based on exposure to asbestos accrues upon the first communication of a diagnosis of an asbestos-related injury or disease by a physician. The case arises from a wrongful death action filed by Phyllis Kiser, wife and executrix of the estate of Orvin Kiser, who died as a result of mesothelioma. Mr. Kiser worked at a "DuPont" plant in Waynesboro, Virginia, from 1957 to 1985, during which time he was exposed to asbestos. After being diagnosed with nonmalignant pleural thickening and asbestosis in 1988, he filed a timely suit in the U.S. District Court for the Western District of Virginia in 1990 against numerous asbestos manufacturers, sellers, and distributors, seeking damages for his employment-related exposure and resulting medical condition. In 2010, that action was voluntarily dismissed. The wrongful death action was filed against 21 defendants, none of which were parties to the personal injury action. The various defendants in the wrongful death action filed motions to dismiss, asserting that the applicable statute of limitations barred the Executrix's action. In her opinion, Justice Kinser pointed out that, in Virginia, remedying policy-related problems is the role of the General Assembly, not the courts. The indivisible cause of action rule has existed in the Commonwealth for decades, and a decision that causes of action for asbestos exposure are not subject to the rule must come from the General Assembly, not the Court, she emphasized. Accordingly, the Supreme Court answered the question in the negative with respect to whether, under Va. Code Sec. 8.01-249(4), a plaintiff's cause of action for damages due to latent mesothelioma is deemed to accrue at the time of the mesothelioma diagnosis, and in the affirmative with respect to whether, under Va. Code Sec. 8.01-249(4), a plaintiff's cause of action for damages due to latent mesothelioma is deemed to accrue decades earlier, when the plaintiff was diagnosed with an independent, non-malignant asbestos-related disease. The case is PHYLLIS H. KISER, EXECUTRIX OF THE ESTATE OF ORVIN H. KISER, SR., DECEASED v. A.W. CHESTERTON CO., ET AL., Record No. 120698 (Va.). A copy of the Decision is available at http://is.gd/50rdDxfrom Leagle.com. ASBESTOS UPDATE: Canterbury Health Boss Questions Fibro Encasement ------------------------------------------------------------------ NZ News reports that asbestos in the ceilings of more than 4,000 earthquake-damaged homes will be left encased behind plasterboard -- a situation Canterbury's leading medical adviser says is a health "landmine." The Earthquake Commission (EQC) estimates 43,000 Christchurch homes due for quake repairs could contain asbestos. In about 10 percent of cases, asbestos in ceilings has been "encased" behind plasterboard instead of being removed. Homeowners will be told if this is done in their house, but there are concerns encasement may encourage them to hide the information. Canterbury District Health Board medical officer of health Alistair Humphrey says the practice is a serious health risk. "I personally feel encasement is not a good thing to do under any circumstances," he said. "It disguises the fact that it is there. "We have an opportunity to make sure houses are safe. They should just take it all out. "It is a landmine sitting there which we won't know about." Asbestos was once used in construction and can be dangerous if it is disturbed. Health experts say it is most harmful if a person is exposed to high levels of the material for a long period. Prolonged, chronic exposure can cause various lung diseases, including cancer, but can take decades to develop. Humphrey said the encasement policy would leave "a very unfortunate legacy" for Christchurch, and he has told EQC of his concerns. "In the future, no one will know asbestos is there. It is covered over. At the moment, you can look and see straight away it is there," he said. "Ten years down the track, someone could decide to put downlights in a room. They drill into [the asbestos] and put themselves at risk. "You could have a little baby crawling around on a carpet for six months with asbestos in it. [Adverse health effects] would emerge only when they were in their 20s, and they will not know the source. It is a very unfortunate legacy." EQC home repair program manager Reid Stiven defended the policy. Asbestos ceilings were encased only when they were not damaged or deteriorating, Stiven said, and homeowners were informed if asbestos was found in a property and if it would be encased. "EQC always tests for the presence of asbestos where it is suspected," he said. Humphrey said landlords would be reluctant to put asbestos on the official information record for their home, known as a land information memorandum (LIM). "If you have a severely damaged house that has asbestos in the ceiling and they encase that, do you think landlords will put that on the LIM? If they do, it devalues their house. Nobody will put asbestos on the LIM," he said. Stiven said the encasement policy followed health guidelines. "Enclosing is a reliable method for ensuring asbestos is safely contained," he said. "We are following the relevant national guidelines and the recommended practice of Canterbury Public Health. Asbestos is only a health risk where it is damaged or deteriorating, and in those cases it is removed. "All of our EQC field staff and Fletcher EQR supervisors have been given training in the correct identification of asbestos. "If they suspect asbestos is present, then a sample is taken and sent to testing. This is completed by an independent specialist." The working group that developed the EQC asbestos policy was chaired by an independent health and safety consultant, he said. ASBESTOS UPDATE: Mesothelioma Widow Gets GBP145K From British Rail ------------------------------------------------------------------ Josh Layton of The Swindon Adertiser (UK) reports that a woman has received GBP145,000 in compensation from British Rail following the death of her husband from asbestos exposure. Sheila Simpson, of Wroughton, brought the case after a post-mortem examination showed her husband, Robin, died from mesothelioma -- less than a year after he started to feel unwell. The settlement was reached out of court, with British Rail also agreeing to pay all legal costs. Mrs. Simpson was represented by Brigitte Chandler -- brigitte.chandler@clmlaw.co.uk -- a leading industrial disease lawyer and partner with Swindon law firm, Charles Lucas & Marshall, who has represented many hundreds of railway workers over the last 30 years. Ms. Chandler said Mr. Simpson's condition was only diagnosed after his death and the case showed how long it can take for asbestos disease to develop. Mr. Simpson joined British Rail at the age of 15 and became a coach builder. He worked in a number of railway shops where he was extensively exposed to asbestos. "A number of coach builders have died from asbestos exposure at the Swindon railway works," said Ms. Chandler. "British Rail is now well aware of the extent of this problem and the fact that so many people who worked there have become ill. "Mr. Simpson would first have been exposed at British Rail in 1950 so it has typically taken 60 years for the disease to develop. "The figures are likely to continue rising over the next 10 years." Dozens of men and women are dying every year from what has been labeled the 'Swindon Disease' as the deadly legacy of workplace exposure to asbestos continues to takes its toll. The region is part of a wider timebomb which, under the worst-case scenario, could claim 2,100 lives nationally at its peak in 2016. Swindon and South West Asbestos Group is a regional charity which provides support groups and a free advice service to people suffering from asbestos disease and their families. ASBESTOS UPDATE: North Cheam Firm Cited for Fibro Law Breaches -------------------------------------------------------------- Bournemouth Echo reports that workers were exposed to asbestos as they refurbished an office block in Poole, a court was told. The 18 workers were put "at risk" as they worked at Sentinel House on the Nuffield Industrial Estate and the company they were working for has admitted three breaches of control of asbestos regulations. Dale Collins, prosecuting for the Health and Safety Executive, told Bournemouth Magistrates' Court that employers MJC Decorating and Refurbishing Ltd were given the results of a survey indicating asbestos was present. An asbestos specialist noticed "widespread" contamination where the staff were working and in July 2009 the site was closed, the court heard. Mr. Collins said one worker described how it had been "difficult to breathe" and they had not been wearing suitable safety masks. James Ageros, in mitigation, said the company owners, the couple Witold and Agnieszka Gamski, had not health and safety breaches in the history of the firm, based at North Cheam in Sutton, Surrey. Mr. Ageros said having to pay the fine would affect the company but Mr. Collins responded that the company accounts show the ownership of a GBP200,000 car "for no other reason than its prestigious." The three charges related to breaches of the identification of asbestos, the prevention or reduction of exposure to asbestos and the duty to prevent or reduce the spread of asbestos. District Judge Roger House ordered the case to be sentenced at crown court. ASBESTOS UPDATE: Abatement Cost May Derail "Moving Ohio" Project ---------------------------------------------------------------- Brian Gadd of The Lancaster Eagle Gazette reports that aging houses built before 1980 often contain cancer-causing asbestos fibers used in some insulation, paints, plasters and joint compounds. In addition to the health risk, the houses also are giving local officials a headache when it comes to paying to have the dangerous substance removed from homes slated for the wrecking ball. The cost of demolition work, particularly asbestos abatement activities, could derail plans to bring down as many as 40 area homes this year under the state's Moving Ohio Forward Demolition grant program, officials said Tuesday, Jan. 8. Muskingum County received a $445,425 grant commitment from the Ohio Attorney General's Office in 2012 and is sharing the funds with the city. Eight houses across the city have been brought down so far and County Community Development Coordinator Sheila Samson, who is overseeing the local efforts, said she has filed paperwork for grant reimbursement for the first six projects. Zanesville Chief Code Enforcement Officer Tim Smith has filed paperwork for two more. "But what we're finding is that the asbestos abatement is very expensive and we fear we will be short of our goal of 40 home demolitions," Samson said, noting the average price of demolition and abatement for the first batch of homes was $9,454 per structure. Smith said while estimates originally called for 35 to 40 demolitions, that number might be reduced to 15 to 20. The average cost to remove asbestos from aging structures he typically deals with before they are demolished is about $15,000, Smith said. One of the projects cost $21,400 because of more asbestos than expected. He has four more homes slated for demolition that are on hold because of higher-than-average costs. "When the cost is that much, that's like three or four homes we won't be able to do," Smith said. "It's severely cutting into what we'll be able to do." He also has been checking on the possibility that several of the proposed demolitions could be eligible for residential exemptions from the Ohio Environmental Protection Agency, which requires a 500-foot buffer between an asbestos removal site and other residences. "Most of our houses are within that (buffer), so we wouldn't be able to do as many," he said, noting he has yet to receive a ruling from the OEPA on the matter. Smith said it wouldn't be a problem for some targeted homes in the county because of more clearance between structures. Samson said she still hasn't secured the first release from homeowners for county properties but is hopeful the first structure out in the county will be coming down in the next couple of months. After discussions with state officials, Ohio Attorney General Mike DeWine earmarked $75 million out of the $93 million his office received from a multistate lawsuit settlement with mortgage servicing companies to help Ohio municipalities remedy damage caused by the foreclosure crisis. That includes eliminating slums and blight through targeted demolitions of vacant and dilapidated structures. ASBESTOS UPDATE: Bondex's Lung Expert Defends Bias Allegations -------------------------------------------------------------- Jon Campisi of Legal Newsline reports that highlighting the second day of an asbestos estimation trial was a testy exchange between an attorney representing the claimants and one of the debtors' witnesses regarding the nature of a specific form of asbestos, and how it relates, or doesn't relate, to a mesothelioma diagnosis. Dr. Allan Feingold, a lung specialist who originally hails from Canada, and is currently based in Miami, took the stand for the debtors -- a consortium of companies that formerly dealt in asbestos-containing products who are presently in a state of Chapter 11 bankruptcies. The companies, Bondex International Inc., Specialty Products Holding Corp., and RPM International Inc., had thousands of asbestos injury claims pending against them in the tort system prior to their respective bankruptcy petitions. The weeklong estimation trial took place in U.S. Bankruptcy Judge Judith Fitzgerald's 54th floor courtroom. Claimant attorneys attempted to pick apart the testimony of Feingold, a medical doctor and expert in epidemiology, over the causation of mesothelioma -- a type of cancer which affects the lining of lungs, is most often attributed to asbestos exposure and is almost always fatal. Chrysotile asbestos, the form of asbestos found in debtor Bondex's joint compound, which is the primary subject of the proceedings, is "much less likely" to stay in the mesothelium, or the lining of the lungs, than other forms of asbestos, such as amphibole asbestos, Feingold testified. He said that Chrysotile asbestos, in most cases, in and of itself doesn't lead to mesothelioma, or at least hardly ever leads to mesothelioma deaths. Other forms of asbestos inhalation, however, such as amphibole, typically account for the mesothelioma diagnoses that are usually seen, Feingold said from the witness stand. Feingold, who was retained by the debtors to review a sampling of the claimants who had filed asbestos injury cases, stressed that he was never given access to the actual lung samples of those claimants who had had surgeries performed by medical doctors given their respective lung cancer diagnoses. If he had actually viewed the tissues under a microscope, the doctor said, he most likely would have found that the patients had more than simply Chrysotile asbestos in their systems. Instead, Feingold said, all he had to go by was the information he was given. Out of the 2,765 mesothelioma victims who brought claims against the debtors, Feingold created a sample group of 229, and only about 25 of those people had what is known as pleural mesothelioma and had had exposure to the joint compound manufactured by Bondex, he said. The joint compound, which is at the center of the case, was namely designed for do-it-yourself use in small home renovation projects, the debtors' attorneys had previously stated. By contrast, most known mesothelioma victims are thought to have contracted the disease during their years working in commercial settings. While Feingold was adamant that Chrysotile asbestos, in and of itself, really wouldn't lead to a mesothelioma diagnosis without a patient having had been exposed to other forms of asbestos fibers, the attorneys representing the claimants, and possible future claimants, stressed that some published research shows otherwise. One claimants' attorney sought to outline Feingold's history of being paid by asbestos companies to testify in proceedings such as the one currently going on in downtown Pittsburgh as serving as an example of the doctor's alleged bias. Feingold, however, reiterated that his medical and scientific opinions were formulated over 30 years' worth of practical applicability, regardless of the fact that he was never a published academic. The claimants' attorney made mention of the other supposed experts who would be participating in the trial later on. Feingold, however, sought to dispel this contention, saying that academics who publish research could be wrong as well. "You think if someone is more famous they are more important," Feingold said from the stand. "No. The facts are important. And the facts don't fly." When the claimants' attorney referenced the jury verdicts that came out in favor of asbestos injury plaintiffs following cases that were taken all the way through trial, Feingold retorted, "I think the juries get things correct most of the time, but not always. "This is not about viewpoints," Feingold said. "This is about facts. Show me a cause and effect relationship," between Chrysotile asbestos only and a mesothelioma diagnosis. When accused of molding his opinion to align with a certain bias, Feingold shot back by saying that his viewpoints may have changed, but only with the course of changing research in the field. Feingold was not the only one on the witness stand on Tuesday, Jan. 8. Charles Mullin, an economic consultant with the Washington, D.C.- based firm Bates-White, continued his testimony, which had been cut short the prior day because of time constraints. Mullin, who had also been retained by the debtors, talked about the reason why many asbestos defendants would choose to engage in settlements with plaintiffs rather than take a case to a jury. It is much more costly for an asbestos defendant to see a case through to a jury verdict rather than to go the settlement route. The defense costs in a jury case could be upward of $300,000 on average, Mullin testified, in comparison to an average settlement of $200,000. At the end of the day, Mullin said, it's cheaper and less risky for a defendant to offer up a settlement than it is for that defendant to take a case to trial. "It's going to be cost prohibitive for them to try a case," he said. The other debtors' witness to testify on the concept of risk was Timothy Coleman, an employee of Blackstone, a New York-based global investment and advisory firm. Coleman was charged at looking at discount rates as they applied to asbestos claims. "The discount rate is all about risk," Coleman said. "This is a very long, 30-plus year type claim." Coleman's testimony went to the heart of the case playing out in Fitzgerald's courtroom. Companies that dealt in asbestos-containing products often choose Chapter 11 bankruptcy as a way of halting future injury claims against them, since businesses that go that route obtain immediate immunity from civil suit. The reason why the two parties are in court in Pittsburgh is because they differ greatly on the dollar figure estimations with regard to future asbestos claims. The claimants, which include the Official Committee of Asbestos Personal Injury Claimants and the Future Claimants' Representative, Eric D. Green, contend that the amount of enforceable, settled but unpaid asbestos claims is somewhere around $55 million, while the debtors maintain that the figure is closer to $30 million. Under questioning by attorneys for both sides, Coleman stressed that future estimations are pure guesswork. "At the end of the day . . . these are all estimations," he testified. Coleman went on to say that when it comes to dealing with the concept of risk, nothing is set in stone. "There's no question that there's risk in this world," Coleman testified. "I think there are lots of risk to the estimations." Under cross-examination by claimants' attorney John Dorsey, of the firm Young Conway, Coleman talked about how things like healthcare costs, a possible future cure for mesothelioma, and other factors, could affect the amount of money paid to asbestos claimants down the line. "Obviously the experts have a very big range of difference between them," Coleman said. "It means there are risks. "Estimates are estimates," Coleman continued. "They have risks associated with them." The proceedings were expected to continue on Wednesday, Jan. 9. Each side was afforded by the court 17-and-one-half hours by which to present their respective sides, for a total of 35 hours in the courtroom for the week. ASBESTOS UPDATE: Ohio School Cited For Exposing Kids to Fibro ------------------------------------------------------------- Andres Jauregui of The Huffington Post reports that an Ohio school is under criminal investigation after it allegedly had volunteers, including students as young as 13, remove debris from an asbestos- contaminated building over several weekends, WKYC reports. Darren Clink, who lives next to the building in question, filmed people working amid clouds of what he claims was carcinogenic dust. Some of the workers may have been students at the nearby Buckeye Education School. "The entire site was contaminated with asbestos and the people who were doing it were all children," Clink said. "The kids were loaded with it." State environmental protection agency analysis of debris from the site would confirm his suspicions, concluding that "floor tiles, pipes and duct fabric were all filled with asbestos." The building is the site of a former YWCA that the school hopes to expand into. Ohio state law requires removal of asbestos by special contractors. According to Ohio EPA literature, "all facilities are required to complete a thorough asbestos survey before renovation or demolition." In an email to WKYC, a representative of the school said that they have now "engaged the services of a certified asbestos remediation company" and are cooperating with the state EPA. School officials have not named who is responsible for organizing the volunteer effort. Once commonly used as a building and insulation material, asbestos has been linked to serious illness after long-term inhalation of dust and fibers. Its removal continues to be a pressing environmental and public health concern, particularly where older structures are concerned. In the aftermath of Hurricane Sandy last year, some experts were concerned that the extensive damage to homes and buildings along the U.S. Eastern Seaboard might increase exposure to environmental toxins, including asbestos. ASBESTOS UPDATE: 1,563 Madison Fibro Exposure Cases Filed in 2012 ----------------------------------------------------------------- Steve Horrel of The Edwardsville Intelligencer reports that the number of asbestos cases filed in Madison County last year was up by 610 from the 2011 total, according to end-of-the-year records released by the Madison County Circuit Clerk's office. In all, 1,563 asbestos cases were filed in Madison County in 2012. Class action lawsuits, on the other hand, took a tumble from the 11 filed in 2011 to 4 last year. Medical malpractice cases increased from 19 in 2011 to 26 in 2012. But in recent years it has been the rise in asbestos filings that has garnered the most publicity and angered local tort reform groups such as Illinois Lawsuit Abuse and national groups like the U.S. Chamber of Commerce. A local group calling itself The Integrity of Madison County's Court System called such attacks partisan and pointed out that only four asbestos cases have gone to trial in the last five years, and in every case jurors returned with defense verdicts. The last year brought a change to the asbestos docket. In March, Associate Judge Clarence Harrison entered an order that eliminated the court's asbestos advance docket for 2013. That followed on the heels of a recommendation by attorney Robert Schultz to eliminate a reservation system for preferred plaintiffs that pro-business groups felt made Madison County a magnet for asbestos-related lawsuits. Schultz represented 61 corporations and defense attorneys, while other attorneys represented asbestos victims. Each side argued their case before Harrison. The arguments had to do with whether to revise a Dec. 1 preliminary order, signed by Circuit Judge Barbara Crowder, that set nearly 500 trial slots. Harrison said that a standard jury week will be used for the asbestos docket, effective immediately. Cases will be heard on a motion-by-motion basis. The court may group cases for efficiency. The elderly and dying shall receive preference in trial settings, Harrison also wrote. ASBESTOS UPDATE: Claimants, Debtors Are Worlds Apart On Estimates ----------------------------------------------------------------- The legal proceeding that played out last week was because lawyers representing asbestos injury claimants and attorneys retained by the bankrupt companies are worlds apart on their respective estimations of the amount of cash available to parties who have been stricken ill because of asbestos exposure, Jon Campisi of Legal Newsline reports. Known as an "estimation hearing," the proceeding, which is being overseen by U.S. Bankruptcy Judge Judith Fitzgerald, was necessary to help resolve the differences among the sides regarding the monetary value of future claims are concerned. "The merits of the claims are not to be ignored," Gregory Gordon -- gmgordon@jonesday.com -- an attorney from the firm Jones Day who is working for the debtors, said in court. "What is the debtors' responsibilities . . . ," is the ultimate question for the court, he said. The focus on the monetary estimation is on the debtors' several share, Gordon said, while liability has to be estimated separately because there are separate debtor entities. The estimation hearing is grounded in the Chapter 11 bankruptcy petition filed in May 2010 by three companies: Bondex International, Specialty Products Holding Corp., and RPM International Inc. The companies, which specialized in the manufacture of asbestos- containing joint compound designed for do-it-yourself home renovation projects, were defendants in about 15,000 pending asbestos-related injury claims prior to their filing for bankruptcy, a process that gives companies immediate immunity from civil litigation. Out of the 15,000 lawsuits, 2,800 of them were mesothelioma claims. When a company files for bankruptcy, it must create what is known as a 524(g) trust, which is ultimately responsible for compensating present and future claimants. According to the American Bar Association, as of 2011, 56 trusts have been confirmed on behalf of asbestos defendants that declared bankruptcy, and payments from those trusts have increased exponentially. As of 2008, the ABA reported, the largest 26 trusts had paid $10.9 billion on 2.4 million claims. The current combined total assets of the trusts is estimated to be between $35 billion and $60 billion, according to the ABA. In the present case, the U.S. Bankruptcy Court for the District of Delaware approved economic consulting firm Bates-White to be the estimation expert for the debtors. Meanwhile, the Official Committee of Asbestos Personal Injury Claimants and the Future Claimants' Representative, Eric D. Green, retained their own experts to calculate what they believe will be the money owed to victims down the road. So far during the estimation hearing, both sides have been presenting expert witnesses who have been testifying on how they arrived at their respective estimations. Medical experts have also been put on the stand to address asbestos-related injuries themselves, the big one being mesothelioma, which is a type of cancer that affects the lining of the lungs called the mesothelium. The debtors in this case claim that they suffered a substantial spike in claims in the early 2000s due to a large number of bankruptcy filings by other defendants who were facing numerous lawsuits in the tort system. The same debtors claim that while still in the tort system, they had to shuck out money to pay for the several liability of other companies in judicial jurisdictions that employ the method known as joint and several liability. Basically, the debtors claim they were on the hook for others' liability, hence the decision to file for bankruptcy. The debtors claim that the form of asbestos they dealt in, known as Chrysotile asbestos, is much less toxic than amphibole asbestos, and they question why more claims were being filed against them recently by people allegedly injured by their product. The debtors assert that the do-it-yourself nature of their products and the debtors' limited market share make it statistically improbable that their products were a contributing cause of more than 50 percent of the mesothelioma cases filed across the country, according to background information on the case contained within the pre-trial order. The debtors also claim that a review of epidemiological research indicates that drywall workers don't have an increased incidence of mesothelioma, since the ailment is a "dose-responsive" disease, and in the normal use of their products, exposure would not be a "substantial" contributing factor to a plaintiff's mesothelioma diagnosis, the pre-trial order states. Allan Feingold, a medical doctor who has testified for other defendants in asbestos cases, said as much while on the stand this week. Feingold was challenged by claimants' attorneys, however, who suggested people still could contract mesothelioma from exposure to Chrysotile asbestos alone, citing the disparity in the research that is in existence. As for the future claims, Gordon, one of the lawyers working with the debtors, asserted that the debtors had less than one percent of the asbestos-containing joint compound on the market with sales of no more than $6 million annually, yet it is claimed that the debtors owe close to a billion dollars and cause half or more of annual mesothelioma claims in the United States. Common sense dictates that "this can't be right," Gordon said in court, something that was reiterated by Charles Mullin, an economic consultant doing work for the debtors. Bondex was hit with its first asbestos injury suit back in 1980, Gordon said, while Specialty Products Holding Corp. faced its first claim two years later. Between 1980 and 1999, the two companies were named in only 107 cases. "Why the avalanche of the meso cases against the debtors," Gordon asked. What changed, he surmises, is that a number of the "truly responsible" companies filed for bankruptcy and left others to take the fall. It's relatively cheap for plaintiffs' attorneys to file mass tort claims such as asbestos lawsuits, Gordon said. By contrast, however, it's very expensive for companies to defend against the claims, with about $300,000 typically needed to defend against an asbestos suit. Gordon said as the volume of claims increased, and insurance money disappeared, "the debtors had to change their approach." Namely, the debtors realized it would be cheaper to settle the claims out of court rather than to take a case to trial. During the course of the estimation hearing, the debtors mentioned Madison County, Ill., as being among the worst jurisdictions in the country as far as asbestos litigation is concerned, primarily because of the nature of the docket system in that jurisdiction. During opening arguments on Monday, Jan. 7, Natalie Ramsey -- nramsey@mmwr.com -- an attorney with Montgomery, McCracken, Walker & Rhoads, which is representing the Official Committee of Asbestos Personal Injury Claimants, disagreed with the debtors' contention that Bondex, which became a subsidiary of Specialty Products Holding Corp. in the early 1970s, was a "small player." Bondex, Ramsey said, continued to put into the stream of commerce asbestos-containing products even after a ban was put into effect, which demonstrated the company simply didn't care about those who got hurt from its products. "There were some other things going on," Ramsey said in court. Ramsey said throughout the course of the estimation trial, the court would see a "repeated theme" on the part of the debtors. "It's not as small a player as the debtors will have you believe," Ramsey said of Bondex. "The debtors have a robust history of resolving asbestos claims." Ramsey said the plan for her team is to see to it that the debtors are ultimately returned to the tort system. "Bankruptcy's not a . . . do-over for the debtors," she said. The attorney representing the Future Claimants' Representative also made an opening statement in which he stressed that "the debtors are not the victims here." "The claimants are the victims your honor," said the lawyer, Edwin J. Harron -- eharron@ycst.com -- of the firm Young, Conway, Stargatt & Taylor. Harron said testimony by his expert witnesses during the hearing will show that $1.1 billion is a "reasonable estimate" on his future claims. Meanwhile, Harron called the used methodology used by Mullin, the economic consultant retained by the debtors, to come up with the debtors' figures "radical" and "severely flawed." Ramsey, the lawyer representing the claimants' committee, had earlier moved to have Mullin's testimony stricken, although the judge allowed Mullin to move forward with his testimony. ASBESTOS UPDATE: Cleanup Need Halts Davis County Library Project ---------------------------------------------------------------- Bryon Saxton of The Standard-Examiner reports that asbestos has to be removed before an old library can come down and a parking lot go in. On Tuesday, Jan. 8, the Davis County Commission received five bids from Utah companies to abate the asbestos in the county's old headquarters library. The old library, built in 1964, is directly east of the Memorial County Courthouse at 45 E. State St., Farmington. The bids the county received for the work ranged from a high of $104,000, to an apparent low bid of $39,878 submitted by Above the Rest Abatement based in Riverton. The bids will be further reviewed before an award is made. The county had budgeted $100,000 for the asbestos abatement work, Davis County Director of Planning Barry Burton said. Burton is serving as the county's manager on the project. The asbestos removal should take place in February, Burton said, with the building set to be razed sometime in March. It is the intent of county officials to have the old building removed from the campus and a new parking lot in its place by the end of spring, officials said. Asbestos in the old library has to be removed before the county is allowed to raze the building, Davis County Commissioner John Petroff, Jr., said. Once the old library is razed, it will open up additional space for parking on the county campus. The county campus consists of the new $1.8 million Children's Justice Center, the $15.7 million Davis County Administrative Offices and the new $4.6 million Davis County Main Branch Library. ASBESTOS UPDATE: Borg-Warner Corp, 123 Others Face Meso Lawsuit --------------------------------------------------------------- Kyla Asbury of The West Virginia Record reports that an Owensboro, Ky., couple is suing 124 companies they claim are responsible for lung injuries. Clarence Robert Nelson was diagnosed with asbestosis and mesothelioma, according to a complaint filed Jan. 3 in Kanawha Circuit Court. Nelson and his wife, Isabell S. Nelson, claim the defendants are responsible for the diagnoses. The defendants failed to warn the Nelsons of the dangers of asbestos products and failed to exercise reasonable care to warn Clarence Nelson of the dangers of being exposed to asbestos- containing products, according to the suit. The Nelsons claim the defendants also failed to test the asbestos- containing products in order to ascertain the dangers involved and failed to test the other ingredients of their products to ascertain the dangers involved. As a result of the defendants' negligence, Clarence Nelson has suffered damages from medical treatment, drugs and other unknown medical measures; great pain of body and mind; embarrassment and inconvenience; loss of earning capacity; loss of enjoyment of life; and shortening of his life expectancy, according to the suit. The Nelsons are seeking a jury trial to resolve all issues involved. They are being represented by David P. Chervenick, Bruce E. Mattock and Scott S. Segal. The case has been assigned to a visiting judge. The 124 defendants named in the suit are Air & Liquid Systems Corporation; Ajax Magnethermic Corporation; Allied Glove Corporation; American Biltrite, Inc.; Ametek, Inc.; Armstrong International, Inc.; Armstrong Pumps, Inc.; Aurora Pump Company; Baltimore Aircoil Company; Borg-Warner Corporation; Brand Insulations, Inc.; Cameron International Corporation; Carver Pump Company; Cashco, Inc.; Catalytic Construction Company; CBS Corporation; Certainteed Corporation; Chevron U.S.A., Inc.; Cleaver-Brooks, Inc.; Columbia Paint Corp.; Columbus McKinnon Corporation; Cooper Industries, Inc.; Copes-Vulcan, Inc.; Crane Company, Inc.; Crown Cork & Seal USA, Inc.; CSR, Inc.; Dana Corporation; Dezurik, Inc.; Dravo Corporation; Eaton Corporation; Eichleay Corporation; F.B. Wright Company of Pittsburgh; the Fairbanks Company; Fairmont Supply Company; Flowserve U.S., Inc. and its Byron Jackson Pump Division; Flowserve U.S., Inc., f/k/a Flowserve FSD Corporation; Flowserve U.S., Inc., f/k/a Flowserve FSD Corporation, as successor to Durco International and the Duriron Company; Flowserve U.S., Inc., f/k/a Flowserve FSD Corporation, as successor to Valtek International; Fluor Constructors International a/k/a Fluor Corporation; Fluor Constructors International, Inc.; Fluor Corporation; Fluor Enterprises, Inc.; FMC Corporation; Foster Wheeler, LLC; the Gage Company; Gardner Denver, Inc.; General Electric Company; General Refractories Company; Gentex Corporation; Georgia-Pacific Corporation; the Goodyear Tire & Rubber Company; Goulds Pumps, Inc.; Greene Tweed & Co.; Grinnell, LLC; Hinchliffe & Keener, Inc.; Honeywell International, Inc.; Howden North America, Inc.; IU North America, Inc.; IMO Industries, Inc.; Inductotherm Corp.; Industrial Holdings Corporation; Industrial Rubber Products; Ingersoll-Rand Company; ITT Corporation; J.H. France Refractories Company; J-M Manufacturing Company, Inc.; Jacobs Engineering Group, Inc.; Joy Technologies, Inc.; Joy Technologies, Inc. a/k/a and as successor-in-interest to Joy Mining Machinery; Lennox Industries, Inc.; Lindberg; Louden Crane Corporation; M.S. Jacobs & Associates, Inc.; Magnetek, Inc.; McJunkin Redman Corporation; Metropolitan Life Insurance Company; Minnotte Contracting Corporation; Morgan Engineering Systems, Inc.; Mueller Steam Specialty; Nagle Pumps, Inc.; Nitro Industrial Coverings, Inc.; Owens-Illinois, Inc.; P&H Mining Equipment, Inc.; Pecora Corporation; Pneumo Abex Corporation; Power Piping Company; Premier Refractories, Inc.; Reading Crane; Riley Power, Inc.; Robinson Fans, Inc.; Rockwell Automation, Inc.; Rust Engineering & Construction, Inc.; Rust International Corp.; Safety First Industries, Inc.; the Sager Corporation; Saint-Gobain Abrasives, Inc.; Schneider Electric USA, Inc.; Seco/Warwick Corporation; Spirax Sarco, Inc.; SPX Cooling Technologies, Inc.; State Electric Supply Company; Sterling Fluid Systems (USA), LLC; Sullair Corporation; Sunbeam Products, Inc.; Sundyne Corporation; Surface Combustion; SVI Corporation; Swindell-Dressler International Company; Tasco Insulation, Inc.; Textron, Inc.; Trane U.S., Inc.; UB West Virginia, Inc.; Union Carbide Corporation; Velan Valve Corporation; Viking Pump, Inc.; Vimasco Corporation; Warren Pumps, Inc.; Washington Group International; Weil McLain Company; Welco Manufacturing Company; West Virginia Electric Supply Company; the William Powell Company; Yarway Corporation; and Zurn Industries, LLC. Kanawha Circuit Court case number: 13-C-6. ASBESTOS UPDATE: Lowell Housing Sponsors Workers' Fibro Tests ------------------------------------------------------------- Lyle Moran of The Lowell Sun reports that several months after questions were raised about the Lowell Housing Authority's possible improper handling of asbestos during a major renovation project, the agency has agreed to pay for and promote the opportunity for its maintenance employees to get tested for asbestos poisoning. LHA Executive Director Gary Wallace said Wednesday, Jan. 9, he has consented to the request put forth by the union representing the maintenance employees because he wants to allay any concerns LHA workers may have about exposure to asbestos. "It makes sense for some of the older people who might have worries," Wallace told The Sun. "We also want to put the issue to rest." Angelo Karabatsos, president of the union representing the LHA's maintenance workers, said the idea of employees receiving asbestos testing first emerged last year after the LHA decided to bring on a environmental consultant to determine how much asbestos is present at all of its major developments. The decision to hire a consultant came in the months following the City Council's call for an investigation into whether asbestos was handled improperly during the LHA's renovations at North Common Village from 2008 to 2011. The Inspector General's Office released a report in October saying there was no evidence asbestos was removed during the project, but two other state agencies determined that proper testing was not done prior to the work. Also, the LHA's consultant found asbestos in the second layer of floor tile and associated mastic of the only North Common unit it tested over the summer. Karabatsos said he put forward the testing proposal so his members who want the testing because of concerns have access to it. He is strongly encouraging his members who have been at the LHA the longest to get tested because many of the old buildings at the LHA used to be full of asbestos and some still remains. "The guys who have been there many years would be wise to get tested to put their minds at ease," Karabatsos said. "There is no doubt in my mind some of them were interacting with asbestos for years." Karabatsos praised the LHA for agreeing to set a specific date, time and place for the testing and make sure LHA employees are aware of it. Workers can also get tested for unhealthy exposure to lead, added Karabatsos. He estimates close to 50 LHA employees would be eligible to receive the testing. "The housing authority is living up to their responsibility to their workers," Karabatsos said. Both Wallace and Karabatsos said they expect the testing to be scheduled for some time in the coming weeks. The health consequences for exposure to asbestos fibers and lead paint can be very severe. Exposure to asbestos fibers can lead to tissue scarring, lung diseases and mesothelioma. Meanwhile, unhealthy exposure to lead can cause lead poisoning, which has a variety of symptoms, including a decline in mental functioning. Also Wednesday, the LHA's board of commissioners took action to prevent exposure to asbestos in one place it was recently identified: the crawl spaces of two developments where the steam pipes go underground from one building to the next. The board voted 3-0 to award Dec-Tam Corp. of North Reading a $57,600 contract to seal the pipe openings at North Common Village and the George Flanagan Development. The board members present for the meeting were Chairwoman Kristin Ross-Sitcawich, Michael Zaim and Walter "Buddy" Flynn. The consultant that is overseeing the asbestos survey project is Cardno ATC of Woburn. David Mitchell, project manager for the Cardno ATC's LHA work, told the board that the asbestos surveying of the LHA's 10 major developments is 80 percent complete. He praised the LHA for seeing it through. "You are doing a great job seeking data for every site and getting training for the staff," he said. "You are really going above and beyond what most people do." Mitchell also reported to the board that some renovated units at North Common Village had traces of asbestos in their residual mastic. Mastic is an adhesive often made of asbestos. ASBESTOS UPDATE: Swansea Firm, Contractor Cited for HSE Violations ------------------------------------------------------------------ Workers were exposed to dangerous asbestos fibers following a catalogue of errors by an engineering company and a building firm during a demolition and refurbishment project in Swansea, a court has heard. The project was badly managed, with untrained staff put in charge of the operation, and was underpinned by inadequate surveys for the presence of asbestos and poor planning throughout. Neath Magistrates' Court was told on Jan. 10 that Wall Colmonoy Ltd had contracted Oaktree Construction to renovate a building opposite its premises in Pontardawe, Swansea, in December 2010 in order to expand its operations. The engineering firm had two asbestos management surveys for the site, which, although later deemed to be inadequate, identified the presence of asbestos material and highlighted other areas, such as the ceiling voids, which were presumed to contain asbestos. Despite this, work was allowed to begin in the building, even though Trebanos-based Oaktree had been advised by the Health and Safety Executive (HSE) that a separate 'Refurbishment and Demolition Survey' was also required before any activity commenced. During the demolition works an asbestos insulation board (AIB) covering a steel column was damaged, and a Wall Colmonoy employee was told to tape plastic bags around it. Work continued in the building for several months with the AIB debris left lying on the floor until an unannounced visit was carried out by an HSE inspector. A subsequent HSE investigation found that Wall Colmonoy failed to appoint a competent Construction, Design and Management coordinator and principal contractor to plan and manage the construction work, and ignored advice from its own health and safety manager to notify HSE of the demolition phase of the project, as is required by law. Wall Colmonoy also failed to provide a proper assessment of the presence of asbestos and its condition in the building before work started. The surveys they held were poor, as a licensed asbestos removal contractor had warned in advising the company that the information they contained was inadequate. No-one involved in the management of the project had the skills, training or experience to address health and safety issues, including the risk of asbestos exposure. The company made no efforts to remove or control the risks from the asbestos materials that had been identified in the reports. The HSE investigation also found that Oaktree failed to prevent the exposure of its employees to asbestos, and failed to control its spread once it had been damaged. The company failed to provide a 'Refurbishment and Demolition Survey' and its own risk assessment was inadequate because it failed to identify the risks from asbestos. Furthermore, Oaktree did not carry out a structural assessment of the building and did not provide its staff with asbestos awareness training, despite a recommendation by the HSE in September 2010. Wall Colomony, of Alloy Industrial Estate, Pontardawe, was fined a total of GBP16,000 and ordered to pay GBP3,287 in costs after pleading guilty to breaching Sections 2(1) and 3(1) of the Health and Safety at Work etc. Act 1974. Oaktree Construction (Wales) Ltd, of Pheasant Road, Trebanos, was fined GBP8,000 with costs of GBP2,000 after pleading guilty to breaching Regulations 16 and 11(1) (a) of the of the Control of Asbestos Regulations 2006. Speaking after the hearing, HSE Inspector, Anne Marie Orrells said: "Both companies involved in this case demonstrated significant failings throughout the management of the project, which put the lives of their respective workers at risk. "Demolition and refurbishment work must be properly planned and managed by competent personnel with the right training and experience. "Proper structural and asbestos surveys must be made and a full risk assessment carried out for all the work to be undertaken. "Had a Refurbishment and Demolition survey been undertaken, and had a licensed asbestos contractor been used to removal all asbestos materials prior to the work starting, then the risk would have been eliminated. "Instead this inadequate response left workers exposed to asbestos fibers, which can cause potentially fatal lung disease. The health and safety of workers must not be left to chance." Further information on managing asbestos risks can be found on the HSE website at http://www.hse.gov.uk/asbestos The Health and Safety Executive is Britain's national regulator for workplace health and safety. It aims to reduce work-related death, injury and ill health. It does so through research, information and advice; promoting training; new or revised regulations and codes of practice; and working with local authority partners by inspection, investigation and enforcement. Section 2(1) of the Health and Safety at Work etc Act 1974 states: It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. Section 3(1) of the Health and Safety at Work etc Act 1974 states: It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. Regulation 16 of the Control of Asbestos Regulations 2006 states: Every employer shall prevent or, where this is not reasonably practicable, reduce to the lowest level reasonably practicable the spread of asbestos from any place where work under his control is carried out. Regulation 11(1) (a) of the Control of Asbestos Regulations 2006 states: Every employer shall prevent the exposure of his employees to asbestos so far as is reasonably practicable. ASBESTOS UPDATE: Chevron USA, Owens-IL Case Moved to Houston MDL ---------------------------------------------------------------- David Yates of The Southeast Texas Record reports that a suit alleging a woman was routinely exposed to asbestos due to her father's employment at area facilities was been transferred to the Multidistrict Litigation Panel in Houston. Roger Young, representing the estate of Melissa Young, filed suit against Chevron USA and Owens-Illinois on April 24 in Jefferson County District Court. Court records show a notice of transfer under Rule 13 as a tag- along case was filed on June 14. The notice states the case has been transferred to the asbestos MDL pre-trial Judge Mark Davidson in Harris County. The lawsuit alleges Melissa's father worked as welder at the Chevron refinery, where he was exposed to asbestos. He then brought the asbestos home on his work clothes, exposing his daughter. The suit alleges Chevron was negligent in exposing workers to asbestos and failing to warn them of the health dangers. The suit also faults Owens-Illinois for negligently manufacturing and selling asbestos products. Roger alleges the defendants acted with malice, entitling him to exemplary damages. Attorney Aaryn Giblin of the Beaumont law firm Provost Umphrey represents him. Judge Gary Sanderson, 6oth District Court, will preside over the litigation if the case is transferred back to Jefferson County. Case No. B192-359. ASBESTOS UPDATE: Brown U Professor Tells McGill U to Retract Study ------------------------------------------------------------------ Eric Andrew-Gee of The McGill Daily reports that the ongoing debate over McGill's role in producing flawed, industry-funded asbestos research erupted in a shouting match between McGill faculty and an American researcher at the Faculty Club on Monday, Jan. 7. The dispute centered on the research of retired McGill professor J. Corbett MacDonald, conducted with nearly a million dollars from the asbestos industry, about the health effects of asbestos extraction in Quebec. A CBC documentary last year suggested that MacDonald tailored his results to suit industry interests. In a landmark paper published in 1998 after decades of research, MacDonald concluded that the kind of asbestos primarily mined in Quebec -- chrysotile -- was "innocuous" at certain exposure levels. Under the chandeliers of the Faculty Club's Gold Room, Brown University associate professor David Egilman called on McGill to retract MacDonald's paper. Egilman, who booked the room himself, called MacDonald's paper "garbage" and said it used outdated measurement methods and relied on manipulated data. Egilman also objected to the fact that data on the location of mines containing differing levels of tremolite -- a form of asbestos universally recognized to cause cancer of the lung lining -- in the Thetford Mines area has not been made public. MacDonald's conclusions about chrysotile hinge on the existence of these high- and low-density tremolite mines. Egilman has been attacking McGill's asbestos research for over a decade; in 2003 he wrote a long study, "Exposing the 'Myth' of ABC, 'Anything But Chrysotile': A critique of the Canadian asbestos mining industry and McGill University chrysotile studies." Egilman noted that MacDonald's paper is being used by the asbestos industry in Brazil and Canada to downplay the health effects of chrysotile exposure. "I'm not here because I care that he cheated on his research. I'm here because the research is being used in a way that is counterproductive from a health perspective," Egilman said. "If McGill withdraws the paper, it's over. It's over." The Harper government has cited MacDonald's research to oppose the inclusion of chrysotile in the Rotterdam Convention, the UN's treaty on dangerous substances. The government abandoned the position last September. Based on MacDonald's research, the official position of the Brazilian government has long been that the controlled use of chrysotile is safe. Last semester, an internal investigation conducted by McGill's own Research Integrity Officer Abraham Fuks cleared MacDonald of any research misconduct. Egilman has called the review "a shameful cover-up." During his presentation, Egilman referred to Fuks as Inspector Fox and included a cartoon in his slideshow of a henhouse guarded by a grinning fox. "Fuks, by the way, is German for Fox," Egilman said. "I extremely resent that," said Eduardo Franco, Interim Chair of Oncolgy at McGill, interrupting. "Dr. Fuks is one of the most distinguished scientists we have at McGill. You could have made your point without that." "I could have, but it's funny," said Egilman. Wayne Wood, an Occupational Health lecturer at McGill, also called Egilman's presentation "flawed" and "dishonest" in an emotional exchange during the question period. He said Egilman should not have attributed the view that chrysotile was "safe" to MacDonald, as MacDonald did not use the word himself. Egilman's talk was in response to a lecture earlier that afternoon by Bruce Case, an asbestos researcher at McGill currently on sabbatical. A long time colleague and backer of MacDonald, Case defended the reputations of several asbestos researchers he feels have been unfairly maligned, MacDonald among them. Case called on the audience to "remember them as the not-always-perfect heroes they are" for pioneering the study of asbestos's health effects. At the end of Case's presentation, held at Purvis Hall, Egilman stood up at the back of the room and invited the audience to his talk. Egilman and Case have a long history of sparring over asbestos research. In 2005, while Case gave a deposition in Dallas, Texas as an expert witness for the plaintiffs in a case about chrysotile exposure -- arguing that chrysotile had not been proven to cause mesothelioma, a cancer usually associated with asbestos exposure -- Egilman entered the courtroom wearing a "flamboyant" orange t-shirt bearing a moose and a McGill "M," according to court documents. One of the defendants' lawyers accused Egilman of trying to "provoke" Case. In last year's CBC documentary about McGill's asbestos studies, Case said, "I wouldn't give Dr. Egilman the time of day . . . because he's not an honorable person." Six scientists who signed a letter to McGill in December requesting that Egilman be invited to speak alongside Case cited Case's attacks in the CBC documentary as a reason for their "concerns" with the McGill scientist's lecture. Egilman called on the press to weigh his claims against those of MacDonald's defenders, such as Case and Fuks. "One of us is an asshole," he said. ASBESTOS UPDATE: Columbia Loses Appeal Over $4MM Integrity Accord ----------------------------------------------------------------- District Judge John W. Darrah tossed out an appeal taken by Columbia Casualty Company from a Bankruptcy Court order granting C.P. Hall Co.'s motion to approve a settlement agreement with Integrity Insurance. The District Judge said there is no clear error in the Bankruptcy Court's ruling. Columbia has no direct interest in the Integrity Settlement. Columbia's sole interest with respect to the Debtor is its potential liability to the Debtor as an insurer. C.P. Hall Co. was a former distributor of Johns Manville raw asbestos. The Debtor terminated its operations in 1986. Since the late 1980s, the Debtor has been named as a defendant in thousands of underlying asbestos claims in Illinois and elsewhere. The Debtor had primary and excess liability coverage that paid for its defense and indemnity of these claims. Columbia issued the Debtor a single second-layer excess liability insurance policy in effect from Oct. 1, 1984 to Oct. 1, 1985. The Columbia insurance policy has aggregate limits of $6 million, which remains unpaid, in excess of two underlying policies with limits of at least $5 million. Since 2005, the Debtor has submitted asbestos claims to Integrity, an insurance company in liquidation in New Jersey. The Debtor has received over $25 million in payments from Integrity for covered claims and alleges that it has proven up and identified roughly $10 million in remaining coverage under the Integrity policy. But the recovery of the $10 million in claims is possible if the Debtor is successful on its appeal in New Jersey state court, contending that the liquidator for the Integrity Estate should have applied state law other than New Jersey in allocating asbestos claims. Other policyholders that are further along in the appeals process have not been successful with this argument. In light of the uncertainty of litigation, the Debtor negotiated a settlement with Integrity for $4.125 million. The case before the District Court is, COLUMBIA CASUALTY COMPANY, Appellant, v. C.P. HALL CO., Appellee, Case No. 12 C 2978 (N.D. Ill.). A copy of the District Court's Jan. 10, 2013 Memorandum Opinion and Order is available at http://is.gd/eUqsMCfrom Leagle.com. Appellate Standing Rules Bill Rochelle, the bankruptcy columnist for Bloomberg News, reports that U.S. District Judge John W. Darrah from Chicago ruled in a Jan. 10 opinion that the "direct pecuniary interest standard" governing standing to take an appeal was properly applied to decide if someone has standing to object to a settlement in bankruptcy court. The report discloses that on appeal, Judge Darrah rejected the argument that the appellate standing threshold of direct pecuniary interest was being applied improperly to proceedings in bankruptcy court. Judge Darrah said that being a party in interest isn't sufficient. Judge Darrah, the report adds, relied on a 2012 opinion from the U.S. Court of Appeals in Chicago in a case called Holly Marine Towing. Holly Marine applied the direct interest test to decide if there was standing to appeal, not standing in bankruptcy court in the first place. Judge Darrah also cited a 1996 bankruptcy court decision from North Dakota holding that the right to appear and be heard is not the same as standing. C.P. Hall Co. filed a Chapter 11 petition (Bankr. N.D. Ill. Case No. 11-26443) on June 24, 2011, listing under $1 million in both assets and debts. A copy of the petition is available at http://bankrupt.com/misc/ilnb11-26443.pdf ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *