/raid1/www/Hosts/bankrupt/CAR_Public/130816.mbx
C L A S S A C T I O N R E P O R T E R
Friday, August 16, 2013, Vol. 15, No. 162
Headlines
ALLIANT ENERGY: 7th Cir. Rules on Appeal in ERISA Class Action
AMERICAN HONDA: "Bediako" Class Action Suit Dismissal Upheld
ARBITRON INC: Asks Del. Court to Approve Securities Suit Accord
BANK OF AMERICA: Calif. High Court Flips Ruling in "Rose" Suit
BECTON DICKINSON: Paying $22MM to Settle Antitrust Lawsuits
BOSTON MEDICAL: 1st Cir. Vacates Portion of Ruling in Wage Suit
BROADWIND ENERGY: $3.9MM Accord in Shareholder Suit Has Final OK
CENTERPOINT ENERGY: Dismissal of Natural Gas Price Suit Reversed
CHICAGO, IL: Public Schools CEO Lauds Class Action Ruling
CONTRA COSTA, CA: Faces Suit Over Abusing Disabled Youths
DEER CONSUMER: Settles Securities Class Action in California
DELL INC: Mass. Supreme Court Remands "Feeney" Suit
DOLE FRESH: "Park" Suit Transferred to C.D. Calif.
DYNAVAX TECHNOLOGIES: Faces 2 Securities Lawsuits in California
EDISON INT'L: 9th Cir. Files Amended Opinion in "Tibble" Suit
ERNST & YOUNG: Class Action Waiver Enforceable, 2nd Cir. Rules
FREIGHT RAILROADS: Class Cert. Order in Antitrust Suit Vacated
FONTERRA COOP: Senior Manager Quits in Wake of Botulism Scare
GAB TELECOM: Bid for Supplemental Class Notice in FLSA Suit Okayed
GAMESTOP CORP: Judge Denies Motion to Dismiss Case
HEADWATERS INC: Faces "Edwards" Shareholder Lawsuit in Utah
HEADWATERS INC: Adtech Suit Arguments Now in Appeals Court
HEADWATERS INC: Discovery Underway in Archstone v. Eldorado Stone
HEWLETT-PACKARD CO: Judge Dismisses Securities Fraud Suit
MARRIOTT INT'L: Opposes Ex-Employees' Class Certification Bid
MARRIOTT INT'L: Court Defers Ruling on Bond's Class Cert. Bid
MERITOR INC: Former Subsidiary Still Faces Price Fixing Suits
MICROSOFT CORP: Robbins Geller Files Securities Class Action
PAIN THERAPEUTICS: Still Faces Securities Suit by KB Partners
PENGUIN GROUP: Discovery Bid Denied in Suit v. Lance Armstrong
PENNSYLVANIA: Settlement of FLSA Suit vs. Corrections Dept Okayed
PEPPERELL BRAIDING: About 5,000 Holgate Toys Playmats Recalled
PHILIP MORRIS: Motion for Class Cert. in "Wyatt" Suit Denied
POPULAR COMMUNITY: Dist. Court Remands "Valle" Class Action
PROCTER & GAMBLE: 9th Cir. Affirms Dismissal of "Edmunson" Suit
ROBERT RESOURCES: Summary Judgment Bid in "Doores" Suit Denied
SPARTAN: Recalls 3 MMP100 Model Fire Trucks in Canada
SPARTAN: Recalls 14 STAR SERIES Model Fire Trucks
STANFORD GROUP: CCO Liable for Securities Fraud, Judge Rules
STATE FARM: Response to Wingo Suit Dismissal Bid Due Aug. 19
STORM FINANCIAL: Judge Rejects Settlement Distribution Scheme
SUPERMEDIA INC: Claims Dismissed in Suit Against Retirees
TARSADIA HOTELS: Dismissal of Securities Fraud Suit Upheld
TYSON PREPARED: Wisc. Ct. Rules in Favor of Employees in Wage Suit
VOLVO TRUCKS: Recalls 3,287 VAH, VHD, VNL and VNM Model Trucks
WAL-MART STORES: 3rd Cir. Vacates Class Cert. in "Hayes" Suit
WEST PUBLISHING: Settlement Final Approval Hearing Set for Aug. 19
* Class Action Provision in India's Companies Bill a "Positive"
* FDA Issues Warning on Children's Laser Toys
* Line of Toys Among Recently Recalled Consumer Products
Asbestos Litigation
ASBESTOS UPDATE: Rapid-American Taps Fitzpatrick as FCR
ASBESTOS UPDATE: Payne's Civil Rights Actions Dismissed
ASBESTOS UPDATE: 3 Inmates' Civil Rights Actions Dismissed
ASBESTOS UPDATE: "Feinstein" Suit Can Proceed to Jury Trial
ASBESTOS UPDATE: Bird Inc.'s Bid to Dismiss "Hammer" Suit Denied
ASBESTOS UPDATE: Argonaut Wins 1st Round in ICSOP Insurance Suit
ASBESTOS UPDATE: Clean Up to Blame for NBN Delays, Says Minister
ASBESTOS UPDATE: Toxic Fibro Left at Blue Lagoon by Travellers
ASBESTOS UPDATE: Granddad Suffering From Lung Illness Files Suit
ASBESTOS UPDATE: Burry Port Residents Call for Fibro Clearing
ASBESTOS UPDATE: Mum-of-Two Fears Exposure to Deadly Dust
ASBESTOS UPDATE: Southampton Man's Death Caused by Fibro Exposure
ASBESTOS UPDATE: Litigation Strategy Led to Deals at Garlock Trial
ASBESTOS UPDATE: Deadly Dust Found in New Rochelle School Building
ASBESTOS UPDATE: Fibro Causes Death of Ex-Truck Driver
ASBESTOS UPDATE: Fibro Disrupts Kempsey Hospital Upgrade
ASBESTOS UPDATE: Lima Man Pleads Guilty to Botching Fibro Removal
ASBESTOS UPDATE: MCCAA Fibro Ceiling Removal Scheduled
ASBESTOS UPDATE: Fibro Scare at Binghamton Elementary School
ASBESTOS UPDATE: Fibro Set Back at Wendouree Archery Club
ASBESTOS UPDATE: WHO Study Shows Millions of Life-Years Lost
ASBESTOS UPDATE: 59 Corporations Face Exposure Lawsuit in Missouri
ASBESTOS UPDATE: Former Worker Sues Union Pacific for Negligence
ASBESTOS UPDATE: Mud Drilling Exposes Workers to Health Problems
ASBESTOS UPDATE: Toxic Dust Delays Indy Downtown Rejunevation Plan
ASBESTOS UPDATE: Assessment of Falmouth Hall Finds Fibro, Molds
ASBESTOS UPDATE: Construction Crew at School Worry About Fibro
ASBESTOS UPDATE: Mass. Town Offices Must Undergo Abatement
ASBESTOS UPDATE: School Caretaker's Death Linked to Toxic Dust
ASBESTOS UPDATE: Witnesses Present Divergent Figures for Garlock
ASBESTOS UPDATE: Meso Victims Center Urges Families to Call
ASBESTOS UPDATE: Piergori Begins Work to Convert Westfield Bldg.
ASBESTOS UPDATE: Firm to Raze Old JFS Building
ASBESTOS UPDATE: Toxic Fibers Could Be Released by Mining Penokees
ASBESTOS UPDATE: EPA Promises Libby Risk Assessment Next Year
ASBESTOS UPDATE: Improper Fibro Dumping Sparks Warning
ASBESTOS UPDATE: Abatement Ongoing at Woodrow Middle School
ASBESTOS UPDATE: Subcontractors May Sue Over NBN Shutdown
ASBESTOS UPDATE: Enviro Audit Reveals Fibro at Newport Reserve
ASBESTOS UPDATE: 4 Companies Named in Jefferson County Lawsuit
ASBESTOS UPDATE: Garlock Trial Winds Down, Courtroom Closed Again
ASBESTOS UPDATE: Compliance Surveys Completes Dockland Report
ASBESTOS UPDATE: $40,000 Fine for Fibro and Other Waste Offences
ASBESTOS UPDATE: Order Requiring Prepayment of Jury Fees Stayed
ASBESTOS UPDATE: Fibro Discovery After Demolition Worries Citizens
ASBESTOS UPDATE: Erie Man Files Mass Tort Claim in Pa. Court
ASBESTOS UPDATE: Victims Center Urges US Navy Veterans to Call
ASBESTOS UPDATE: Port Kembla Stack Cleared of Toxic Dust
ASBESTOS UPDATE: Exposure Spikes Prompting Home Renovator Warning
ASBESTOS UPDATE: Center Urges Construction Workers to Call
ASBESTOS UPDATE: Tamaroa Grade School Removes Deadly Dust
ASBESTOS UPDATE: Fibro Exposure Led to Man's Death, Inquest Hears
ASBESTOS UPDATE: Ex-Supervisor Sentenced for Fibro Mishandling
ASBESTOS UPDATE: Sheffield Widow Seeks Answers Over Fibro Death
ASBESTOS UPDATE: Legal Newsline Appeals Decision in Garlock Case
*********
ALLIANT ENERGY: 7th Cir. Rules on Appeal in ERISA Class Action
--------------------------------------------------------------
The United States Court of Appeals for the Seventh Circuit
affirmed, in part, and reversed, in part, a district court ruling
in RUPPERT v. ALLIANT ENERGY CASH BALANCE PENSION PLAN.
The appeal was filed by the defendant in the class action suit
brought by participants in a cash balance defined benefit pension
plan, alleging that the plan as administered violated ERISA, and
sought recovery of benefits denied the participants as a
consequence of the violation. The district judge granted summary
judgment in favor of the class -- actually classes, because the
judge divided the class into two subclasses: subclass A challenges
the projection rate used by the defendant, subclass B the
defendant's handling of the pre-mortality retirement discount.
The Seventh Circuit held that the judgment is reversed and
remanded with respect to the statute of limitations regarding
class members who took their lump sum more than six years before
the suit was filed, and also with respect to the adequacy of the
class representatives, and is otherwise affirmed.
The case is LAWRENCE G. RUPPERT and THOMAS A. LARSON, on behalf of
themselves and all others similarly situated, Plaintiffs-
Appellees, v. ALLIANT ENERGY CASH BALANCE PENSION PLAN, Defendant-
Appellant, NO. 12-3067.
A copy of the Appeals Court's August 9, 2013 Opinion is available
at http://is.gd/kZdbAhfrom Leagle.com.
AMERICAN HONDA: "Bediako" Class Action Suit Dismissal Upheld
------------------------------------------------------------
The United States Court of Appeals for the Fourth Circuit affirmed
the dismissal of the class action complaint captioned MELISSA
BEDIAKO, on her own behalf and on behalf of all others similarly
situated, Plaintiff-Appellant, v. AMERICAN HONDA FINANCE
CORPORATION, Defendant-Appellee. AMERICAN FINANCIAL SERVICES
ASSOCIATION, Amicus Supporting Appellee, NO. 12-1795.
Melissa Bediako, on behalf of a putative class, asserts that
American Honda Finance Corporation violated Maryland's Credit
Grantor Closed End Credit Provisions, Md. Code, Com. Law Section
12-1001 et seq., by providing inadequate notice of private sales
of repossessed automobiles. The district court dismissed Ms.
Bediako's complaint, concluding that her claim was time barred,
failed to allege actionable damages, and failed on the merits.
The Fourth Circuit concluded that Ms. Bediako indeed failed to
allege actionable damages.
A copy of the Appeals Court's August 1, 2013 Opinion is available
at http://is.gd/uJZfFcfrom Leagle.com.
ARGUED: Cory Lev Zajdel, Z LAW, LLC, Owings Mills, Maryland, for
Appellant.
Donald M. Falk -- dfalk@mayerbrown.com -- at MAYER BROWN LLP, Palo
Alto, California, for Appellee.
ON BRIEF: David M. Ross -- david.ross@wilsonelser.com -- at WILSON
ELSER MOSKOWITZ EDELMAN & DICKER LLP, Washington, D.C., for
Appellee.
Robert L. Wise -- rob.wise@bowmanandbrooke.com -- at BOWMAN AND
BROOKE LLP, Richmond, Virginia, for Amicus Supporting Appellee.
ARBITRON INC: Asks Del. Court to Approve Securities Suit Accord
---------------------------------------------------------------
The settlement of a securities suit against Arbitron Inc. over its
merger with Nielsen Holdings N.V. was submitted to the Court of
Chancery of the State of Delaware and is awaiting approval,
according to the company's July 24, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2013.
On January 24, 2013, a putative class action lawsuit was filed in
the Court of Chancery of the State of Delaware (the "Court")
regarding the proposed Merger.
The complaint ("Complaint") was purportedly filed on behalf of the
shareholders of the Company, and names as defendants, the Company,
each of the Company's directors, Merger Sub, and Nielsen. The
Complaint alleged, among other things, that the Company's
directors breached their fiduciary duties by failing to maximize
shareholder value in a proposed sale of the Company. The Complaint
further alleged that the Company's preliminary proxy statement
failed to provide material information and provided materially
misleading information relating to the Merger and that the Company
and Nielsen aided and abetted the alleged breaches by the
Company's directors. The plaintiff sought, among other things,
class action status, an injunction preventing the completion of
the Merger (or, if the Merger were completed, rescinding the
Merger or awarding rescissory damages), and the payment of
attorneys' fees and expenses.
On March 7, 2013, the parties to the litigation entered into a
memorandum of understanding (the "MOU") providing for a
settlement, subject to court approval, of the action on behalf of
the named plaintiff and a class of the shareholders affected by
the transaction (the "Settlement"). As part of the MOU, all of the
defendants denied all allegations of wrongdoing and denied that
the disclosures made by the Company in the Company's preliminary
proxy statement on Schedule 14A as filed on January 18, 2013 were
inadequate, but the Company agreed to provide certain additional
disclosures in its definitive proxy statement relating to the
Merger and to waive the "no-ask, no-waiver" provision in the
existing confidentiality agreements.
The Settlement will not affect the form or amount of consideration
to be paid to the Company's shareholders in the Merger. The
Settlement was submitted to the Court of Chancery on July 17,
2013. The preliminary settlement has not yet been approved. If
approved by the Court of Chancery, the Settlement will resolve all
of the allegations and claims asserted by the plaintiff and the
class against all defendants in connection with the Merger and
will further provide for the release and settlement by the class
of the Company's shareholders of all claims against all of the
defendants and their affiliates in connection with the Merger.
Counsel for the plaintiffs intends to seek a payment by the
Company of attorneys' fees and expenses in light of the
Settlement. The Company has reserved the right to oppose
plaintiffs' motion. The settlement and the releases are final
regardless of the outcome of this separate request.
BANK OF AMERICA: Calif. High Court Flips Ruling in "Rose" Suit
--------------------------------------------------------------
The Supreme Court of California reversed an appeals court judgment
in HAROLD ROSE et al., Plaintiffs and Appellants, v. BANK OF
AMERICA, N.A., Defendant and Respondent, NO. S199074.
For 10 years beginning in 1991, the federal Truth in Savings Act
(TISA; 12 U.S.C. Section 4301 et seq.) allowed civil damages to be
sought for failure to comply with its requirements. The provision
authorizing lawsuits was repealed in 1996, effective September 30,
2001. This case involves the effect of that repeal on claims
brought under the unfair competition law.
After the expiration of section 4310, Plaintiffs filed a class
action against Bank of America, alleging unlawful and unfair
business practices based on violations of TISA disclosure
requirements. Plaintiffs asked for restitution, injunctive relief,
and attorney fees. The Bank demurred, arguing that Congress had
expressly prohibited private rights of action under TISA. The
trial court sustained the demurrer with leave to amend, which
plaintiffs declined. On appeal from the ensuing judgment, the
Court of Appeal affirmed, reasoning that Congress's repeal of
former section 4310 reflected its intent to bar any private action
to enforce TISA.
The Calif. Supreme Court holds that a claim of unlawful business
practice under California's unfair competition law may be based on
violations of a federal statute, when Congress made it plain that
state laws consistent with the federal statute are not superseded.
A copy of the Supreme Court's August 1, 2013 Opinion is available
at http://is.gd/S3YaiCfrom Leagle.com.
The Rossbacher Firm, Henry H. Rossbacher --
h.rossbacher@rossbacherlaw.com -- Jeffrey Alan Goldenberg --
j.goldenberg@rossbacherlaw.com -- James S. Cahill --
j.cahill@rossbacherlaw.com -- and Talin K. Tenly --
t.tenley@rossbacherlaw.com -- for Plaintiffs and Appellants.
Adam Keats; Law Office of Richard R. Wiebe and Richard R. Wiebe
for Center for Biological Diversity, Inc., as Amicus Curiae on
behalf of Plaintiffs and Appellants.
Arbogast Bowen and David M. Arbogast -- david@arbogastbowen.com --
for Consumer Attorneys of California and the National Consumer Law
Center as Amici Curiae on behalf of Plaintiffs and Appellants.
Dennis J. Herrera, City Attorney (San Francisco), Danny Chou,
Chief of Special and Complex Litigation, Kristine Poplawski and
Erin Bernstein, Deputy City Attorneys; Carmen A. Trutanich, City
Attorney (Los Angeles) and Tina Hess, Deputy Chief Complex and
Special Litigation, for San Francisco City Attorney and Los
Angeles City Attorney as Amici Curiae on behalf of Plaintiffs and
Appellants.
Reed Smith, Margaret M. Grignon -- MaGrignon@reedsmith.com --
Scott H. Jacobs -- shjacobs@reedsmith.com -- and Zareh A.
Jaltorossian -- ZJaltorossian@ReedSmith.com -- for Defendant and
Respondent.
Horvitz & Levy, Lisa Perochet -- lperrochet@horvitzlevy.com --
Jeremy B. Rosen -- jrosen@horvitzlevy.com -- and Jason R. Litt --
jlitt@horvitzlevy.com -- for Chamber of Commerce of the United
States of America and California Chamber of Commerce as Amici
Curiae on behalf of Defendant and Respondent.
Fred J. Hiestand for the Civil Justice Association of California
as Amicus Curiae on behalf of Defendant and Respondent.
Leland Chan -- leland.chan@lmco.com -- for California Bankers
Association and American Bankers Association as Amici Curiae on
behalf of Defendant and Respondent.
BECTON DICKINSON: Paying $22MM to Settle Antitrust Lawsuits
-----------------------------------------------------------
Becton, Dickinson and Company has agreed to pay $22 million to
settle antitrust class actions brought on behalf of purchasers of
BD products, according to the company's 2013 Third Fiscal Quarter
report filed with the U.S. Securities and Exchange Commission.
On July 30, 2013, BD entered into a settlement agreement in the
following antitrust class actions brought on behalf of purchasers
of BD products:
(1) Jabo's Pharmacy, Inc., et. al. v. Becton Dickinson &
Company (U.S. District Court, Greenville, Tennessee),
filed June 3, 2005;
(2) Drug Mart Tallman, Inc., et. al. v. Becton Dickinson and
Company (U.S. District Court, Newark, New Jersey), filed
January 17, 2006;
(3) Medstar v. Becton Dickinson (U.S. District Court,
Newark, New Jersey), filed May 18, 2006; and
(4) The Hebrew Home for the Aged at Riverdale v. Becton
Dickinson and Company (U.S. District Court, Southern
District of New York), filed March 28, 2007.
Under the terms of the settlement agreement, which is subject to
preliminary and final approval by the court following notice to
potential class members, BD will pay $22 million into a settlement
fund in exchange for a release by all potential class members of
the indirect purchaser claims related to the products and acts
enumerated in the complaint, and a dismissal of the case with
prejudice. The release would not cover potential class members
which opt out of the settlement.
BOSTON MEDICAL: 1st Cir. Vacates Portion of Ruling in Wage Suit
---------------------------------------------------------------
Elizabeth Manning, Lisa Rivers, Rhonda Williams, and Reva McCarthy
brought a wage-and-hour action against Boston Medical Center
Corporation, Elaine Ullian, and James Canavan. Current and former
BMC employees, the plaintiffs allege that the defendants deprived
them of their wages through the use of timekeeping policies and
employment practices that required them to work through their meal
and rest periods, put in extra work time before and after their
regularly scheduled work shifts, and attend mandatory training
sessions. The complaint asserts causes of action under the Fair
Labor Standards Act and Massachusetts common law for recovery of
their unpaid wages. The plaintiffs also seek certification of a
collective action pursuant to FLSA Section 16(b), 29 U.S.C.
Section 216(b), and a class action pursuant to Federal Rule of
Civil Procedure 23.
This case began as two separate actions, one in federal court
raising FLSA claims, and another in the Massachusetts Commonwealth
court raising state law claims. The defendants removed the latter
action to federal court. After the two cases were joined via the
filing of a single amended complaint, the defendants moved to
dismiss all of the claims, both federal and state, and sought to
strike the class and collective action allegations. The district
court granted the defendants' motion in its entirety, and the
plaintiffs appealed.
The United States Court of Appeals for the First Circuit vacated
the district court's dismissal of the FLSA claims against BMC and
Ullian, as well as the Massachusetts common law claims for breach
of contract, promissory estoppel, money had and received, unjust
enrichment, and conversion. The First Circuit also vacated the
striking of plaintiffs' class and collective allegations. The
district court's directive that the plaintiffs in the two cases
file a single consolidated complaint and, by extension, the
district court's assumption of jurisdiction over the state law
claims is affirmed. The dismissal of the FLSA claims against
Canavan, the fraud and negligent misrepresentation claims, and the
denial of further leave to amend the complaint is also affirmed.
The case is ELIZABETH MANNING ET AL., Plaintiffs, Appellants, v.
BOSTON MEDICAL CENTER CORPORATION; ELAINE ULLIAN; JAMES CANAVAN,
Defendants, Appellees, BOSTON REGIONAL MEDICAL CENTER, INC.;
BOSTON REGIONAL MEDICAL CENTER, LLC; BOSTON MEDICAL CENTER 403B
RETIREMENT PLAN, Defendants, NOS. 12-1573, 12-1653.
A copy of the Appeals Court's August 1, 2013 Opinion is available
at http://is.gd/Hfo9U1from Leagle.com.
Guy A. Talia, with whom Patrick J. Solomon and Thomas & Solomon
LLP were on brief, for appellants.
C.J. Eaton -- ceaton@seyfarth.com -- with whom Richard L. Alfred
-- ralfred@seyfarth.com -- Kristin G. McGurn --
kmcgurn@seyfarth.com -- Jessica M. Schauer --
jmschauer@seyfarth.com -- and Seyfarth Shaw LLP were on brief, for
appellees.
BROADWIND ENERGY: $3.9MM Accord in Shareholder Suit Has Final OK
----------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, granted final approval to the
$3,915,000 settlement of a shareholder suit against Broadwind
Energy, Inc., according to the company's July 24, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
On February 11, 2011, a putative class action was filed in the
United States District Court for the Northern District of
Illinois, Eastern Division (the "Court"), against the Company and
certain of its current or former officers and directors. The
lawsuit was purportedly brought on behalf of purchasers of the
Company's common stock between March 17, 2009 and August 9, 2010.
A lead plaintiff was appointed and an amended complaint was filed
on September 13, 2011. The amended complaint named as additional
defendants certain of the Company's current and former directors,
certain Tontine entities, and Jeffrey Gendell, a principal of
Tontine. The complaint sought to allege that the defendants
violated Section 10(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 10b-5 promulgated
thereunder, and/or Section 20(a) of the Exchange Act by issuing or
causing to be issued a series of allegedly false and/or misleading
statements concerning the Company's financial results, operations,
and prospects, including with respect to the January 2010
secondary public offering of the Company's common stock (the
"January 2010 Stock Offering").
The plaintiffs alleged that the Company's statements were false
and misleading because, among other things, the Company's reported
financial results during the class period allegedly violated
generally accepted accounting principles because they failed to
reflect the impairment of goodwill and other intangible assets,
and the Company allegedly failed to disclose known trends and
other information regarding certain customer relationships at Brad
Foote. In support of their claims, the plaintiffs relied in part
upon six alleged confidential informants, all of whom are alleged
to be former employees of the Company.
On November 18, 2011, the Company filed a motion to dismiss. On
April 19, 2012, the Court granted in part and denied in part the
Company's motion. The Court dismissed all claims with prejudice
against each of the named current and former officers except for
J. Cameron Drecoll and held that the plaintiffs had failed to
state a claim for any alleged misstatements made after March 19,
2010.
In addition, the Court dismissed all claims with prejudice against
the named Tontine entities and Mr. Gendell. The Court denied the
motion with respect to certain of the claims asserted against the
Company and Mr. Drecoll. The Company filed its answer and
affirmative defenses on May 21, 2012. The plaintiffs' class
certification was filed on June 22, 2012, and the parties agreed
to a briefing schedule.
The parties participated in a mediation session on August 20,
2012, and reached agreement on a settlement of the matter in the
amount of $3,915,000 which is payable by the Company's insurance
carrier. The Court preliminarily approved the settlement on March
14, 2013 and granted final approval of the settlement on June 27,
2013.
Between February 15, 2011 and March 30, 2011, three putative
shareholder derivative lawsuits were filed in the Court against
certain of the Company's current and former officers and
directors, and certain Tontine entities, seeking to challenge
alleged breaches of fiduciary duty, waste of corporate assets, and
unjust enrichment, including in connection with the January 2010
Stock Offering.
One of the lawsuits also alleged that certain directors violated
Section 14(a) of the Exchange Act in connection with the Company's
Proxy Statement for its 2010 Annual Meeting of Stockholders. Two
of the matters pending in the Court were subsequently
consolidated, and on May 15, 2012, the Court granted the
defendants' motion to dismiss the consolidated cases and also
entered an order dismissing the third case.
The Company received a request from the Tontine defendants for
indemnification in the derivative suits and the class action
lawsuit from Tontine and/or Mr. Gendell pursuant to various
agreements related to shares owned by Tontine. The Company
maintains directors and officers liability insurance; however, the
costs of indemnification for Mr. Gendell and/or Tontine would not
be covered by any Company insurance policy.
The Company subsequently entered into an agreement with Tontine
providing, among other things, for a settlement of these
indemnification claims and related matters for a payment of
$495,000. Because of the preliminary nature of these matters, the
Company is not able to estimate a loss or range of loss, if any,
that may be incurred in connection with these matters at this
time.
CENTERPOINT ENERGY: Dismissal of Natural Gas Price Suit Reversed
----------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit
reversed the trial court's dismissal of the plaintiffs' claims
against CenterPoint Energy Services, Inc. (CES), alleging a
conspiracy to inflate Wisconsin natural gas prices in 2000-2002,
according to Centerpoint Energy Inc.'s July 24, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
A large number of lawsuits were filed against numerous gas market
participants in a number of federal and western state courts in
connection with the operation of the natural gas markets in 2000-
2002.
CenterPoint Energy's former affiliate, Reliant Resources, Inc.
(RRI), was a participant in gas trading in the California and
Western markets. These lawsuits, many of which were filed as class
actions, allege violations of state and federal antitrust laws.
Plaintiffs in these lawsuits are seeking a variety of forms of
relief, including, among others, recovery of compensatory damages
(in some cases in excess of $1 billion), a trebling of
compensatory damages, full consideration damages and attorneys'
fees.
CenterPoint Energy and/or Reliant Energy were named in
approximately 30 of these lawsuits, which were instituted between
2003 and 2009. CenterPoint Energy and its affiliates have since
been released or dismissed from all but one such case.
CenterPoint Energy Services, Inc. (CES), a subsidiary of CERC
Corp., is a defendant in a case now pending in federal court in
Nevada alleging a conspiracy to inflate Wisconsin natural gas
prices in 2000-2002.
In July 2011, the court issued an order dismissing the plaintiffs'
claims against other defendants in the case, each of whom had
demonstrated FERC jurisdictional sales for resale during the
relevant period, based on federal preemption. The plaintiffs
appealed this ruling to the United States Court of Appeals for the
Ninth Circuit, which reversed the trial court's dismissal of the
plaintiffs' claims.
The other defendants may seek further review by filing a writ of
certiorari with the U.S. Supreme Court. CenterPoint Energy
believes that CES is not a proper defendant in this case and will
continue to pursue a dismissal. CenterPoint Energy does not
expect the ultimate outcome of this matter to have a material
impact on its financial condition, results of operations or cash
flows. Additionally, CenterPoint Energy was a defendant in a
lawsuit filed in state court in Nevada that was dismissed in 2007.
In September 2012, the Nevada Supreme Court affirmed the
dismissal. In June 2013, the Supreme Court of the United States
denied plaintiffs' petition for writ of certiorari and this matter
is now concluded.
CHICAGO, IL: Public Schools CEO Lauds Class Action Ruling
---------------------------------------------------------
WRAL.com reports that the majority of the nearly 50 Chicago
elementary schools slated for closure will likely proceed after a
federal judge denied class-action status to the two main civil
lawsuits at the center of a dispute pitting parents and education
officials.
Chicago Public Schools, the nation's third largest school
district, said on Aug. 12 it welcomed the ruling by US. District
Judge John Lee, which was posted late on Aug. 9. His decision
leaves open the possibility that he could still order injunctions
stopping the closure of half a dozen schools named in the two
lawsuits. Those orders could come within the next several days.
Judge Lee all but ruled out extending any injunction to the about
50 schools the district voted in May to close, concluding the
issues facing the schools were too dissimilar to treat
simultaneously.
In a brief written statement released on Aug. 12, schools CEO
Barbara Byrd-Bennett said she was "pleased with the court's
ruling." Plaintiffs' attorney Sean Morales Doyle declined comment
other than to say the judge hasn't made a final ruling on the
injunction.
Parents of black students say the closures will force their
children to negotiate unfamiliar street gang territory,
endangering their lives. Parents of kids with disabilities say
new schools are ill-prepared to receive their children and so the
closures put them at risk, too.
The district has denied claims by some parents that race played a
role, insisting that a looming $1 billion deficit and the underuse
of many buildings -- not race -- drove decisions about which
schools to shutter.
Last month, both sides presented four days of testimony.
CONTRA COSTA, CA: Faces Suit Over Abusing Disabled Youths
---------------------------------------------------------
Philip A. Janquart at Courthouse News Service reports that Contra
Costa County locks up disabled youths for months without
education, puts them into abusive solitary confinement, and
punishes them for looking out the tiny window in their cells,
their guardians claim in a federal class action.
Plaintiffs include G.F., 14, who participates in the Girls in
Motion Program, and has been locked up in Juvenile Hall in
Martinez since she was 13; W.B., 17, who has been declared
incompetent by Juvenile Court and has been in Juvenile Hall for 15
months; and Q.G., who has been in Juvenile Hall for 2 years and 9
months.
Their guardians ad litem claim the children have been subjected to
barbaric conditions for extended periods without the education to
which they are entitled by law.
Named as defendants are Contra Costa County, its Probation
Department, its Office of Education, and four county officials:
Chief County Probation Officer Philip Kader, Juvenile Hall
Superintendent Bruce Pelle, school Superintendent Joseph Ovick,
and Director of Contra Costa County Court Schools Lynn Mackey.
The Contra Costa County Juvenile Hall is a 290-bed, maximum-
security detention facility in Martinez. It provides temporary
detention for youths waiting for hearings and for sentencing to
treatment or rehabilitation programs, according to the complaint.
It is also the last stop for youths in the Youthful Offender
Treatment Program and the Girls in Motion Program.
The systems used inside the jail are archaic and exacerbate the
disabilities of youths who are systematically denied education
that is mandated by law, according to the complaint.
"Cells in Contra Costa County Juvenile Hall are prison-like," the
complaint states. "They are extremely small without even enough
room to exercise. There is a toilet, sink and bed. The bed is a
cement block with a pad on it. The cell does not have bars but
rather a solid door with a small window in it. The window is
about as wide as a hand and long as an arm. Youth who look out
their window while in their cell are subject to discipline by
probation staff."
Despite state and federal education laws, the Probation Department
gives supervisors the power to restrict school attendance, "as a
punishment," according to the complaint.
"There is also a disciplinary measure that may be employed by the
County's Office of Education teachers, known euphemistically as
'room time,'" the complaint states. "If a teacher believes that a
student has not completed sufficient work while in the classroom
or has committed some other infraction, the teacher may request
that that student be placed on 'room time.' At the teacher's
discretion, the discipline may occur during school, in which case
the student is sent to his/her cell instead of attending school.
It may also occur when a student might normally be allowed out of
his/her cell (e.g. after dinner). Instead, the student must stay
confined in his/her cell. Regardless of when the punishment
occurs, the student is not given any school work to complete."
Conditions in solitary confinement are even worse, split into
levels called "maximum security," "security risk" and "special
program," according to the complaint.
"Much like the cells, the solitary confinement policies of Contra
Costa County Juvenile Hall are like that from an adult detention
facility," the complaint states. "There are various levels of
solitary confinement know as 'Security Programs." According to
the Probation Department, these are used as 'a disciplinary
measure for those residents who have violated major rules,
demonstrate a pattern of repetitious minor rule violations, or who
present an immediate physical threat to another person.'"
Children are put into solitary for uncertain, "highly subjective"
reasons, the guardians claim. Some "violations," including the
"patterns of repetitious rule violations," are complicated by the
security programs themselves, according to the complaint.
"Defendants knowingly place youth with disabilities, such as
mental illness, cognitive impairments and ADHD, in solitary
confinement, which leads to the deterioration of these
disabilities," the complaint states.
A lot of this is against the law, the guardians say.
"Defendants have abdicated their core responsibility of providing
education and rehabilitation, not punishment, to youth with
disabilities who are detained at the Contra Costa Juvenile Hall.
The violations of detained youth's rights and illegal deprivations
of educational and rehabilitative service at juvenile hall are
rampant and widespread, yet defends have allowed them to persist,"
the complaint states.
The plaintiffs seek an injunction, rectification of the abuses,
and damages for violations of state and federal laws, including
the Americans with Disabilities Act, the Disabilities Education
Improvement Act, the Rehabilitation Act, the California Education
Code for Special Education Requirements, and the code for General
Education Requirements.
Their lead counsel is Mary-Lee K. Smith, with Disability Rights
Advocates, of Berkeley.
DEER CONSUMER: Settles Securities Class Action in California
------------------------------------------------------------
Deer Consumer Products, Inc. on Aug. 13 disclosed that it has
successfully settled the securities class action lawsuit Rose v.
Deer Consumer Products, Inc. et al. The United States District
Court for the Central District of California granted final
approval of a settlement on August 9, 2013, which represents about
4% of plaintiffs' claimed damages.
The Lawsuit primarily relates to certain public statements
concerning the Company's financial condition in 2010 and 2009.
The Company filed a motion to dismiss the lawsuit, which was
pending before the Court at the time of the settlement of the
Lawsuit. The Company continues to deny the allegations in the
Lawsuit and settled the matter to spare itself further litigation
expense.
About Deer Consumer Products, Inc.
Deer Consumer Products, Inc. -- http://www.deerinc.com/-- is a
provider of "DEER" branded small household and kitchen products to
Chinese consumers and a vertically integrated manufacturer of
small household products for global customers.
DELL INC: Mass. Supreme Court Remands "Feeney" Suit
---------------------------------------------------
Following the United States Supreme Court's decision in AT & T
Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) (Concepcion),
the Supreme Judicial Court of Massachusetts held in Feeney v. Dell
Inc., 465 Mass. 470, 472 (2013) (Feeney II), that the Federal
Arbitration Act (FAA), 9 U.S.C. Sections 1 et seq.(2006), does not
foreclose a court "from invalidating an arbitration agreement that
includes a class action waiver where a plaintiff can demonstrate
that he or she effectively cannot pursue a claim against [a]
defendant in individual arbitration according to the terms of the
agreement, thus rendering his or her claim nonremediable." Having
concluded that the plaintiffs in Feeney II had indeed made such a
demonstration, the Mass. Supreme Court affirmed the ruling of a
judge in the Superior Court invalidating a class action waiver in
the parties' arbitration agreement. Feeney II, supra. Just eight
days after the release of its decision in Feeney II, the U.S.
Supreme Court issued an opinion in American Express Co. v. Italian
Colors Restaurant, 133 S.Ct. 2304, 2312 (2013) (Amex), holding
that a class action waiver in an arbitration agreement is
enforceable under the FAA even if a plaintiff proves that the
class waiver, combined with other onerous terms of the agreement,
effectively precludes the plaintiff from vindicating his or her
Federal statutory rights. Following the release of Amex, the
defendants in Feeney II filed a petition for rehearing on the
grounds that Amex abrogated Feeney II. The Mass. Supreme Court
stayed the issuance of the rescript in Feeney II and invited the
plaintiffs to submit a response, which they did.
The Mass. Supreme Court, therefore, concluded that following Amex,
its analysis in Feeney II no longer comports with the U.S. Supreme
Court's interpretation of the FAA.
The Mass. Supreme Court decided that the class waiver may not be
invalidated on the grounds that it effectively denies the
plaintiffs a remedy. It clarified that it takes no view on the
other issues. The decision of the judge in the Superior Court
denying the defendants' renewed motion to confirm the arbitration
award is reversed, and the case is remanded for further
proceedings consistent with the Mass. Supreme Court's opinion.
The case is John A. FEENEY & another vs. DELL INC. & others, NO.
SJC-11133.
A copy of the Mass. Supreme Court's August 1, 2013 Opinion is
available at http://is.gd/XKMS6afrom Leagle.com.
John A. Shope -- jshope@foleyhoag.com -- for the defendants.
Edward D. Rapacki for the plaintiffs.
DOLE FRESH: "Park" Suit Transferred to C.D. Calif.
--------------------------------------------------
District Judge Lucy H. Koh granted a motion to transfer to the
Central District of California the case captioned ANDREW PARK, on
Behalf of Himself and All Other Persons Similarly Situated,
Plaintiff, v. DOLE FRESH VEGETABLES, INC., Defendant, CASE NO.
13-CV-0872 LHK, (N.D. Calif.).
Andrew Park brought this putative consumer class action lawsuit
against Defendant Dole Fresh Vegetables, Inc. pursuant to
California's Unfair Competition Law, Business and Professions Code
Sections 17200, et seq., and California's Consumers Legal Remedies
Act, Civil Code Sections 1750, et seq.
The N.D. Calif. Court found that the convenience factors and
interest of justice weigh heavily in favor of transfer.
Consequently, the N.D. Calif. Court denied all outstanding motions
as moot.
A copy of the N.D. Calif. Court's August 2, 2013 and Order is
available at http://is.gd/De5KHsfrom Leagle.com.
Andrew Park, Petitioner, represented by Casey Edwards Sadler --
csadler@glancylaw.com -- at Glancy Binkow & Goldberg LLP, Marc
Lawrence Godino -- mgodino@glancylaw.com -- at Glancy Binkow &
Goldberg LLP & Michael M Goldberg -- mgoldberg@glancylaw.com -- at
Glancy Binkow and Goldberg LLP.
Dole Fresh Vegetables Inc, Respondent, represented by Charles
Andrew Danaher -- cdanaher@mckennalong.com -- at McKenna Long and
Aldridge LLP & Theona Zhordania -- tzhordania@mckennalong.com --
at McKenna Long and Aldridge LLP.
DYNAVAX TECHNOLOGIES: Faces 2 Securities Lawsuits in California
---------------------------------------------------------------
Dynavax Technologies Corporation faces two purported securities
suits in the U.S. District Court for the Northern District of
California, according to the company's July 24, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
On June 18, 2013, the first of two substantially similar
securities class action complaints was filed in the U.S. District
Court for the Northern District of California against the Company
and certain of its former executive officers.
The second was filed on June 26, 2013. The complaints, brought on
behalf of purported stockholders, allege that between April 26,
2012 and June 10, 2013, the Company and the executive officers
violated Sections 10(b) and 20(a) of the Securities Exchange Act
of 1934 and Rule 10b-5 promulgated thereunder, in connection with
statements related to our product, HEPLISAVTM, an investigational
adult hepatitis B vaccine. The complaints seek unspecified
damages, interest, attorneys' fees, and other costs.
EDISON INT'L: 9th Cir. Files Amended Opinion in "Tibble" Suit
-------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit entered
an order on August 1, 2013, amending its opinion filed March 21,
2013, and published at 711 F.3d 1061, in TIBBLE v. EDISON
INTERNATIONAL.
In this case, current and former beneficiaries sued their
employer's benefit plan administrator under the Employee
Retirement Income Security Act charging that their pension plan
had been managed imprudently and in a self-interested fashion.
The Ninth Circuit was to decide, among other issues, whether the
Act's limitations period or its safe harbor provision are
obstacles to the suit.
The opinion filed March 21, 2013, was amended to reflect, among
other things, the deletion of this text beginning on slip opinion
page 28<. At least one court has held that in cases implicating
ERISA Secton 404 fiduciary duties,> through slip opinion 31 <
difficulties with John Blair impel us to apply Firestone, and so
we do.> and the addition of eight new paragraphs.
With these amendments, the Ninth Circuit panel, composed of
Circuit Judges Alfred T. Goodwin, Diarmuid F. O'Scannlain, and
District Judge Jack Zouhary, has voted unanimously to deny the
petition for rehearing. Judge O'Scannlain has voted to deny the
petition for rehearing en banc, and Judges Goodwin and Zouhary
have so recommended.
The full court has been advised of the petition for rehearing en
banc, and no judge has requested a vote on whether to rehear the
matter en banc. Fed. R. App. P. 35. The petition for rehearing and
petition for rehearing en banc is denied.
No further petitions for panel rehearing or for rehearing en banc
will be entertained.
The case is GLENN TIBBLE; WILLIAM BAUER; WILLIAM IZRAL; HENRY
RUNOWIECKI; FREDERICK SUHADOLC; HUGH TINMAN, JR., as
representatives of a class of similarly situated persons, and on
behalf of the Plan, Plaintiffs-Appellants,
v.
EDISON INTERNATIONAL; THE EDISON INTERNATIONAL BENEFITS COMMITTEE,
FKA The Southern California Edison Benefits Committee; EDISON
INTERNATIONAL TRUST INVESTMENT COMMITTEE; SECRETARY OF THE EDISON
INTERNATIONAL BENEFITS COMMITTEE; SOUTHERN CALIFORNIA EDISON'S
VICE PRESIDENT OF HUMAN RESOURCES; MANAGER OF SOUTHERN CALIFORNIA
EDISON'S HR SERVICE CENTER, Defendants-Appellees.
GLENN TIBBLE; WILLIAM BAUER; WILLIAM IZRAL; HENRY RUNOWIECKI;
FREDERICK SUHADOLC; HUGH TINMAN, JR., as representatives of a
class of similarly situated persons, and on behalf of the Plan,
Plaintiffs-Appellees,
v.
EDISON INTERNATIONAL; THE SOUTHERN CALIFORNIA EDISON BENEFITS
COMMITTEE, incorrectly named The Edison International Benefits
Committee; EDISON INTERNATIONAL TRUST INVESTMENT COMMITTEE;
SECRETARY OF THE SOUTHERN CALIFORNIA EDISON COMPANY BENEFITS
COMMITTEE, incorrectly named Secretary of the Edison International
Benefits Committee; SOUTHERN CALIFORNIA EDISON'S VICE PRESIDENT OF
HUMAN RESOURCES; MANAGER OF SOUTHERN CALIFORNIA EDISON'S HR
SERVICE CENTER, Defendants-Appellants, NOS. 10-56406, 10-56415.
A copy of the Appeals Court's August 1, 2013 Order and Amended
Opinion is available at http://is.gd/4EIt3Mfrom Leagle.com.
Michael A. Wolff -- mwolff@uselaws.com -- at Schlichter, Bogard &
Denton, LLP, St. Louis, MO, argued the cause and filed the briefs
for the plaintiffs-appellants. With him on the briefs were Jerome
J. Schlichter -- jschlichter@uselaws.com -- Nelson G. Wolff --
nwolff@uselaws.com -- and Jason P. Kelly -- jkelly@uselaws.com --
at Schlichter, Bogard & Denton, LLP, St. Louis, MO.
Jonathan D. Hacker -- jhacker@omm.com -- at O'Melveny & Myers LLP,
Washington, DC, argued the cause and filed the briefs for the
defendants-appellees/cross-appellants. With him on the briefs were
Walter Dellinger -- wdellinger@omm.com -- Robert N. Eccles --
beccles@omm.com -- Gary S. Tell, at O'Melveny & Myers LLP,
Washington, D.C., as well as Matthew Eastus, and China Rosas,
O'Melveny & Myers LLP, Los Angeles, CA.
Elizabeth Hopkins, U.S. Department of Labor, Washington, DC,
argued the cause and filed the brief for the Secretary of Labor as
amicus curiae in support of plaintiffs-appellants. With her on the
brief were Stacey E. Elias, M. Patricia Smith, and Timothy D.
Hauser.
Jay E. Sushelsky, AARP Foundation Litigation, Washington, DC,
filed the brief for the AARP as amicus curiae in support of
plaintiffs-appellants. With him on the brief was Melvin Radowitz,
AARP, Washington, D.C.
Nicole A. Diller -- ndiller@morganlewis.com -- Alison B. Willard
-- awillard@morganlewis.com -- and Abbey M. Glenn --
aglennaglenn@morganlewis.com -- at Morgan, Lewis & Bockius LLP,
San Francisco, CA, filed the brief for the California Employment
Law Council as amicus curiae in support of defendants-
appellees/cross-appellants.
Thomas L. Cubbage III -- tcubbage@cov.com -- at Covington &
Burling LLP, Washington, DC, filed the brief for the Investment
Company Institute as amicus curiae in support of defendants-
appellees/cross-appellants. With him on the brief was S. Michael
Chittenden -- mchittenden@cov.com -- at Covington & Burling LLP,
Washington, DC.
ERNST & YOUNG: Class Action Waiver Enforceable, 2nd Cir. Rules
--------------------------------------------------------------
Brendan Pierson, writing for New York Law Journal, reports that a
former Ernst & Young employee must pursue her wage-and-hour claim
against the accounting firm through individual arbitration rather
than a class action, the U.S. Court of Appeals for the Second
Circuit has ruled in reversing a lower court judge in light of the
U.S. Supreme Court's recent decision in American Express v.
Italian Colors Restaurant, 133 S. Ct. 2304.
The circuit panel ruled on Aug. 9 in Sutherland v. Ernst & Young,
12-304-cv, that the Supreme Court had compelled it to reverse its
previous position that class action waivers are not enforceable
when they make it economically impossible for plaintiffs to
vindicate their rights.
Judge Ralph Winter, Jose Cabranes and Chester Straub joined the
unsigned opinion.
The ex-employee, Stephanie Sutherland, sued Ernst & Young in
April 2010, alleging she and other similarly situated employees
were improperly classified as exempt from overtime under the
federal Fair Labor Standards Act.
Ernst & Young moved to dismiss or stay the case, arguing that Ms.
Sutherland could not bring the lawsuit because she had signed a
provision requiring her to arbitrate all claims and waiving class
action. The company asked the court to compel individual
arbitration.
Southern District Judge Kimba Wood twice declined to dismiss the
case on those grounds. First, in March 2011, she ruled that
enforcing the class action waiver would prevent Ms. Sutherland
from vindicating her statutory rights because her legal costs
would be greater than any possible recovery.
That decision followed the Second Circuit's 2009 decision in In re
American Express Merchants' Litigation, 554 F.3d 300, which
invalidated a class action waiver for the same reason.
Later in 2011, Ernst & Young moved for reconsideration in light of
the Supreme Court's new decision in AT&T Mobility v. Concepcion,
131 S.Ct. 1740. In that case, the high court upheld a class
action waiver in an agreement between AT&T and its customers. The
court also said the Federal Arbitration Act, which was passed to
encourage arbitration, preempted any state-level policy that would
void class action waivers.
But in January 2012, Judge Wood denied the motion for
reconsideration, ruling that, in Concepcion, the plaintiffs were
not in the same position as Ms. Sutherland, who would not be able
to gain a recovery due to legal costs. Because the waiver
prevented Ms. Sutherland from realizing her statutory rights,
Judge Wood ruled, the waiver could not be enforced against her.
Ernst & Young appealed. The appeal was argued on March 20. In
June, the Supreme Court handed down Italian Colors. In that
decision, which upheld a class action waiver and reversed yet
another Second Circuit decision, the Supreme Court ruled that
courts must "rigorously enforce arbitration agreements according
to their terms" in the absence of a "contrary congressional
command."
The Supreme Court's decisions in Concepcion and Italian Colors
"inexorably lead to the conclusion that the waiver of collective
action claims is permissible in the FLSA context," the Second
Circuit panel wrote on Aug. 9, overturning its own precedents.
"Despite the obstacles facing the vindication of Sutherland's
claims, the Supreme Court's recent decision in Italian Colors . .
. compels the conclusion that Sutherland's class-action waiver is
not rendered invalid by virtue of the fact that her claim is not
economically worth pursuing individually," the panel said. "In
other words, 'the fact that it is not worth the expense involved
in proving a statutory remedy does not constitute the elimination
of the right to pursue that remedy,'" it said, quoting Italian
Colors.
Rex Heinke -- rheinke@akingump.com -- a partner at Akin Gump
Strauss Hauer & Feld, represents Ernst & Young.
Max Folkenflik -- MFolkenflik@fmlaw.net -- of Folkenflik &
McGerity represents Ms. Sutherland.
The attorneys did not return calls seeking comment.
FREIGHT RAILROADS: Class Cert. Order in Antitrust Suit Vacated
--------------------------------------------------------------
The United States Court of Appeals for the District of Columbia
Circuit vacated a district court's class certification decision in
IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION -- MDL NO.
1869, BNSF RAILWAY COMPANY, ET AL., Petitioners, NO. 12-7085.
A group of shippers who paid rate-based fuel surcharges on
shipments brought this antitrust suit accusing freight railroads
of engaging in a price-fixing conspiracy. They also sought and
obtained certification of a class including all similarly situated
shippers who paid these surcharges during the relevant period. The
freight railroads have sought, via interlocutory appeal, to undo
class certification, the crux of their argument being that
separate trials are needed to distinguish the shippers the alleged
conspiracy injured from those it did not.
The Appeals Court remanded the case to permit the district court
to reconsider its decision in light of Comcast Corp. v. Behrend.
The Supreme Court decided Comcast Corp. v. Behrend after the
district court issued its decision to certify the class in the
Antitrust Litigation. Behrend involved certification of an
antitrust class action under Rule 23(b)(3) of the Federal Rules of
Civil Procedure based on regression modeling.
A copy of the District Court's August 9, 2013 Decision is
available at http://is.gd/sP4D45from Leagle.com.
Carter G. Phillips argued the cause for petitioners. With him on
the briefs were Joseph R. Guerra, Saul P. Morgenstern, Maureen E.
Mahoney, J. Scott Ballenger, Alan M. Wiseman, Thomas A. Isaacson,
Theodore J. Boutrous, Jr., John M. Nannes, Tara L. Reinhart,
Tyrone R. Childress, David G. Meyer, Veronica S. Lewis, Kent A.
Gardiner, Kathryn D. Kirmayer, Andrew S. Tulumello, Samuel L.
Sipe, Jr., and Linda Stein.
Theodore J. Boutrous, Jr., Andrew S. Tulumello, and Veronica S.
Lewis were on the briefs for petitioner BNSF Railway Company.
Richard J. Favretto, Michael E. Lackey, Jr., and G. Paul Moates
entered appearances.
Mark T. Stancil, Robin S. Conrad, and Sheldon Gilbert were on the
briefs for amicus curiae Chamber of Commerce of the United States
of America in support of petitioners.
Stephen R. Neuwirth argued the cause for respondents. With him on
the brief were William B. Adams, Michael D. Hausfeld, and Michael
P. Lehmann.
FONTERRA COOP: Senior Manager Quits in Wake of Botulism Scare
-------------------------------------------------------------
The Associated Press reports that a senior manager at New Zealand
dairy giant Fonterra resigned on Aug. 14 in the wake of a botulism
scare.
Fonterra said Gary Romano had already left the company. In his
role as managing director of New Zealand Milk Products, Mr. Romano
oversaw the tainted product line that sparked a global recall.
Fonterra announced this month that hundreds of tons of infant
formula could be tainted after tests found bacteria in whey
protein concentrate that can cause botulism. Fonterra said last
week that a recall of the products had been successful, with no
reported cases of people contracting the disease.
Mr. Romano was part of a team of managers that reported directly
to Fonterra Chief Executive Theo Spierings. Mr. Romano fronted
questions about the scare in New Zealand last week while
Mr. Spierings headed to China to do damage control in a crucial
market.
Fonterra, the world's largest dairy exporter, declined to
elaborate on Aug. 14 on Mr. Romano's reasons for leaving. The
company said Mr. Spierings would, for now, take over Romano's
responsibilities.
New Zealand is launching several probes into the contamination.
Fonterra will conduct its own internal investigation, a group of
government officials will determine if the company should face any
charges, and politicians plan to launch their own inquiry.
New Zealand relies on dairy exports to power its economy and the
recall has dented the reputation of its products in key markets
including China.
Several countries have announced halts on imports of certain New
Zealand dairy products.
GAB TELECOM: Bid for Supplemental Class Notice in FLSA Suit Okayed
------------------------------------------------------------------
In LEE v. GAB TELECOM, INC., District Judge Gershwin A. Drain
granted the plaintiffs' motion for supplemental class notice;
denied the plaintiffs' motion for sanctions and the defendant's
motions to prohibit opt-ins from participating and for removal of
postings; granted in part and denied in part the defendant's
motion to compel responses; and found the defendant's motion to
extend discovery and to quash and limit discovery and the
plaintiff's motion to permit late-filed opt-in notices moot.
The plaintiffs filed the action pursuant to the Fair Labor
Standards Act, 29 U.S.C. Section 201 et seq., claiming that GAB
Telecom, Inc., violated the FLSA by classifying the Plaintiffs as
exempt under the Act in order to deny the Plaintiffs the statutory
overtime wages required by the FLSA. The Defendant maintains that
the overtime provisions of the FLSA do not apply to the Plaintiffs
because they were employed as independent contractors rather than
hourly employees and are exempt from the overtime requirements.
The case is HORACE LEE, DESHON TAYLOR, and all other similarly
situated, Plaintiffs, v. GAB TELECOM, INC., Defendant, CASE NO.
12-CV-14104, (E.D. Mich.).
A copy of the District Court's August 8, 2013 Order is available
at http://is.gd/k4bbYffrom Leagle.com.
Horace Lee, Plaintiff, represented by David M. Blanchard, Nacht,
Roumel, Salvatore, Blanchard & Walker, P.C., Elizabeth Ann Tully,
Lichten and Liss-Riordan, P.C., Harold Lichten, Lichten & Liss-
Riordan PC & Edward A. Macey, Nacht, Roumel, Salvatore, Blanchard
& Walker, P.C..
Deshon Taylor, Plaintiff, represented by David M. Blanchard,
Nacht, Roumel, Salvatore, Blanchard & Walker, P.C., Elizabeth Ann
Tully, Lichten and Liss-Riordan, P.C., Harold Lichten, Lichten &
Liss-Riordan PC & Edward A. Macey, Nacht, Roumel, Salvatore,
Blanchard & Walker, P.C..
Terris Walker, Plaintiff, represented by David M. Blanchard,
Nacht, Roumel, Salvatore, Blanchard & Walker, P.C., Edward A.
Macey, Nacht, Roumel, Salvatore, Blanchard & Walker, P.C.,
Elizabeth Ann Tully, Lichten and Liss-Riordan, P.C. & Harold
Lichten, Lichten & Liss-Riordan PC.
Dexter Johnson, Plaintiff, represented by David M. Blanchard,
Nacht, Roumel, Salvatore, Blanchard & Walker, P.C., Edward A.
Macey, Nacht, Roumel, Salvatore, Blanchard & Walker, P.C.,
Elizabeth Ann Tully, Lichten and Liss-Riordan, P.C. & Harold
Lichten, Lichten & Liss-Riordan PC.
James Neff, Plaintiff, represented by Edward A. Macey, Nacht,
Roumel, Salvatore, Blanchard & Walker, P.C., Elizabeth Ann Tully,
Lichten and Liss-Riordan, P.C. & Harold Lichten, Lichten & Liss-
Riordan PC.
Leslie Wardell, Plaintiff, represented by Edward A. Macey, Nacht,
Roumel, Salvatore, Blanchard & Walker, P.C., Elizabeth Ann Tully,
Lichten and Liss-Riordan, P.C. & Harold Lichten, Lichten & Liss-
Riordan PC.
GAB Telecom, Incorporated, Defendant, represented by John E.
Gannon -- jgannon@lambertleser.com -- at Lambert, Leser, Isackson,
Cook & Giunta.
GAMESTOP CORP: Judge Denies Motion to Dismiss Case
--------------------------------------------------
Rose Bouboushian at Courthouse News Service reports that GameStop
must face claims that it tricked customers into wasting money on
used games that did not include allegedly "integral" downloadable
content, a federal judge ruled.
John Farley filed a putative class action against the Grapevine,
Texas-based video game retailer in Burlington County, N.J., last
year. Gamestop later removed the case to federal court, and Jamar
McGhee and Hakana Ozdincer joined the class in November.
The plaintiffs claim they bought pre-owned video games from
GameStop between May 2010 and January 2011, expecting to receive
all of the content included with new games, including downloadable
content (DLC) such as "extra game characters, levels, maps,
screens, weapons, adventure scenarios," and the ability to play
online.
But because this content - which the complaint describes as an
integral feature of the games - can be downloaded only by using a
single-use serial code that the manufacturer provides on new game
boxes, pre-owned games do not include a useable code.
McGhee and Ozdincer said they therefore each had to pay $15 for
DLC after purchasing a used game for $45, totaling more than the
cost of a new video game that includes the content.
GameStop moved to dismiss for lack of standing and failure to
state a claim, but U.S. District Judge Robert Kugler denied the
motion Wednesday, Aug. 7, 2013.
"Plaintiffs clearly have standing to sue," the unpublished opinion
states. "Defendants unsuccessfully argue that plaintiffs may have
purchased pre-owned video games that did not include DLC in order
to save money. However, this argument targets the merits of
plaintiffs' claims rather than plaintiffs' standing to assert the
claims. Defendants also contend that plaintiff Farley did not
purchase DLC and therefore did not spend more than he would have
for a new video game that included DLC. This argument is similarly
unsuccessful. A plaintiff need not spend money to correct
defendant's errors to demonstrate a benefit-of-the-bargain loss
under the [New Jersey Consumer Fraud Act] CFA."
McGhee and the others can also pursue claims that GameStop
intentionally lied to them.
"Plaintiffs allege that defendants were aware of material
information, that DLC was not included with the purchase of pre-
owned games, but did not reveal this fact to plaintiffs," Kugler
wrote. "Plaintiffs further allege that defendants knew that a
large percentage of pre-owned video game purchasers would want DLC
and made statements such as: 'our used game trade program creates
value for customers' and 'You saved [dollar amount] buying Used!'
to induce purchasers to buy pre-owned. Under these allegations,
plaintiffs have plausibly stated a knowing omission."
GameStop's alleged misconduct may have caused the gamers'
ascertainable loss, according to the 10-page opinion.
"Plaintiffs allege they purchased pre-owned video games from
defendants because they believed, based on defendants' unlawful
conduct, that DLC was included," Kugler wrote. "As a result,
plaintiffs received less than they expected. Plaintiffs have
sufficiently alleged a causal nexus between the alleged act of
consumer fraud and the damages sustained."
The unjust enrichment claim also survived.
"Plaintiffs alleged that because the pre-owned video games were
missing DLC, they did not 'work in the same manner as a new copy
of the same game' because 'significant aspects of the original
game . . . were not included,'" Kugler wrote. "Plaintiffs
essentially charge defendants with knowingly selling a defective
product. Therefore, plaintiffs adequately pled unjust
enrichment."
HEADWATERS INC: Faces "Edwards" Shareholder Lawsuit in Utah
-----------------------------------------------------------
Headwaters Incorporated faces a lawsuit filed by a purported
stockholder in the United States District Court for the District
of Utah, according to the company's July 24, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
In May 2013, James W. Edwards, purportedly a stockholder of
Headwaters Incorporated, filed a complaint in the United States
District Court for the District of Utah against current and former
members of the Board of Directors of the Company and against
Headwaters Incorporated.
The complaint alleges that the Board breached its fiduciary duties
and wasted corporate assets in connection with the Compensation
Committee's grant of certain stock appreciation rights to the
Company's Chief Executive Officer in November 2011 under the 2010
Incentive Plan (Plan). The complaint alleges that the 2011 grant
exceeded Plan limits and that the 2013 Proxy Statement in
connection with the Company's 2013 Annual Meeting of Stockholders
contained false and misleading information concerning the 2011
grant. The complaint seeks an order rescinding the 2011 grant,
unspecified damages and other remedies, plus interest, attorney
fees, and costs. The complaint is brought derivatively on behalf
of Headwaters Incorporated and as a purported class action on
behalf of all shareholders of record as of December 31, 2012.
Because resolution of the litigation is uncertain, legal counsel
and management cannot express an opinion as to the ultimate
amount, if any, of Headwaters' liability.
HEADWATERS INC: Adtech Suit Arguments Now in Appeals Court
----------------------------------------------------------
The arguments over monetary awards in a suit filed by Adtech, Inc.
shareholders against Headwaters Inc. is now before the United
States Court of Appeals for the Sixth Circuit, according to
Headwaters' July 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
In 1998, Headwaters entered into a technology purchase agreement
with James G. Davidson and Adtech, Inc. The transaction
transferred certain patent and royalty rights to Headwaters
related to a synthetic fuel technology invented by Davidson.
In 2002, Headwaters received a summons and complaint from the
United States District Court for the Western District of Tennessee
filed by former stockholders of Adtech alleging, among other
things, fraud, conspiracy, constructive trust, conversion, patent
infringement and interference with contract arising out of the
1998 technology purchase agreement entered into between Davidson
and Adtech on the one hand, and Headwaters on the other.
All claims against Headwaters were dismissed in pretrial
proceedings except claims of conspiracy and constructive trust.
The District Court certified a class comprised of substantially
all purported stockholders of Adtech, Inc. The plaintiffs sought
compensatory damages from Headwaters in the approximate amount of
$43.0 million plus prejudgment interest and punitive damages.
In June 2009, a jury reached a verdict in a trial in the amount of
$8.7 million for the eight named plaintiffs representing a portion
of the class members. In September 2010, a jury reached a verdict
after a trial for the remaining 46 members of the class in the
amount of $7.3 million. In April 2011, the trial court entered an
order for a constructive trust in the amount of approximately
$16.0 million (the same amount as the sum of the previous jury
verdicts), and entered judgment against Headwaters in the total
approximate amount of $16.0 million, in accordance with the
verdicts and order on constructive trust.
Headwaters filed a supersedeas bond and a notice of appeal from
the judgment to the United States Court of Appeals for the Federal
Circuit. Plaintiffs also filed notice of an appeal. The Federal
Circuit transferred the case to the United States Court of Appeals
for the Sixth Circuit on the basis of jurisdiction. A panel of the
Sixth Circuit held oral arguments in March 2013 but no decision
has been announced. Because the resolution of the litigation is
uncertain, legal counsel and management cannot express an opinion
as to the ultimate amount, if any, of Headwaters' liability.
HEADWATERS INC: Discovery Underway in Archstone v. Eldorado Stone
-----------------------------------------------------------------
Discovery is underway in a damage claim filed by Archstone against
Eldorado Stone, LLC, including $7.0 million for class action
defense fees, plus prejudgment interest and attorney's fees,
according to Headwaters Inc.'s July 24, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2013.
Archstone owns an apartment complex in Westbury, New York.
Archstone alleges that moisture penetrated the building envelope
and damaged moisture sensitive parts of the buildings which began
to rot and grow mold. In 2008, Archstone evicted its tenants and
began repairing the 21 apartment buildings.
Also in 2008, Archstone filed a complaint in the Nassau County
Supreme Court of the State of New York against the prime
contractor and its performance bond surety, the designer, and
Eldorado Stone, LLC which supplied architectural stone that was
installed by others during construction. The prime contractor then
sued over a dozen subcontractors who in turn sued others.
Most parties filed cross-claims for contribution and indemnity
against Eldorado Stone and others. Archstone claims as damages
approximately $36.0 million in repair costs, $19.0 million in lost
lease payments and rent abatement, $7.0 million paid to tenants
who sued Archstone, and $7.0 million for class action defense
fees, plus prejudgment interest and attorney's fees.
Eldorado Stone answered denying liability and tendered the matter
to its insurers who are paying for the defense of the case.
Eldorado Stone sought summary judgment on three of Archstone's
four claims. After an interlocutory appeal, the three claims were
dismissed. Archstone is seeking further review.
The remaining Archstone claim of common law indemnification
applies to damages paid to the tenants and associated attorney's
fees. Meanwhile, discovery is underway. Because the resolution of
the action is uncertain, legal counsel and management cannot
express an opinion concerning the likely outcome of this matter,
the liability of Eldorado Stone, if any, or the insurers'
obligation to indemnify Eldorado Stone against loss, if any.
HEWLETT-PACKARD CO: Judge Dismisses Securities Fraud Suit
---------------------------------------------------------
Jan Wolfe, writing for The Litigation Daily, reports that in 2008,
Hewlett-Packard Co. issued a new code of ethics for its employees.
Two years later, the HP CEO who approved the ethics code,
Mark Hurd, resigned amid allegations that he falsified expense
reports in order to cover up a romantic relationship. The irony
wasn't lost on plaintiffs lawyers at Kirby McInerney and
Glancy Binkow & Goldberg, who argued in a 2012 complaint that HP
committed securities fraud by touting its high ethical standards
to investors without affirmatively disclosing Mr. Hurd's
transgressions.
Those claims fell flat on Aug. 9, when U.S. District Judge Jon
Tigar in San Francisco issued a 20-page decision dismissing the
case without prejudice. Siding with HP's defense lawyers at
Morgan, Lewis & Bockius, Judge Tigar concluded that HP's public
statements about its ethics, including the code of ethics itself,
were neither false nor materially misleading.
HP named Mr. Hurd its CEO in 2005. A year later, he also took
over as chairman. He replaced Patricia Dunn, who resigned under
the weight of HP's 2006 spying scandal. During his four-year
tenure, Mr. Hurd tried to rebuild the company's reputation through
new compliance programs. In 2008 and again in 2010, HP circulated
a code of ethics to employees that required them to promise to be
"open, honest, and direct" and to "maintain accurate business
records."
According to the plaintiffs, Mr. Hurd couldn't be bothered to obey
his own rules. In the fall of 2007, the company hired a marketing
consultant named Jodie Fisher. A former soft-core porn actress,
Fisher had just participated in a reality TV dating series on NBC
called Age of Love, in which "cougars" like her competed for the
affection of a younger man. Ms. Fisher's job at HP was an unusual
one. As CNNMoney reported, she attended Mr. Hurd's meet-and-
greets with HP clients and helped him brush aside smaller
customers so that he could focus on the big spenders.
In 2010, Ms. Fisher hired famed lawyer Gloria Allred and accused
Mr. Hurd of sexual harassment. He resigned later that year. The
harassment claims were never substantiated, but an internal
investigation performed by Covington & Burling turned up evidence
that Mr. Hurd used company resources to wine and dine Ms. Fisher
and then tried to hide the relationship from HP's board.
Mr. Hurd's departure sparked several shareholder derivative
actions. After a Morgan Lewis team led by Marc Sonnenfeld
defeated those cases, and with the statute of limitations about to
expire, Kirby and Glancy tried their luck with the securities
fraud case.
Their complaint, brought on behalf of everyone who bought HP stock
between November 2007 and August 2010, alleged that HP made false
and misleading statements by issuing an ethics code that Mr. Hurd
was busy flaunting. According to the plaintiffs, the code was
intended to be read not only by employees, but also by the
investing public. "[I]n light of Hurd's endorsement of these
tenets, there was an implication that Hurd was in fact in
compliance with them," the complaint alleged.
The complaint also focused on the following statement, which HP
put in regulatory filings: "The loss of executives or key
employees could have a significant impact on our operations."
According to Kirby and Glancy, that passage "created a duty to
disclose" Mr. Hurd's misconduct.
Judge Tigar rejected both arguments in the Aug. 9 decision. The
statements in HP's code amounted to "inactionable puffery," he
ruled. "Adoption of the Plaintiff's argument here would . . .
render every code of ethics materially misleading whenever an
executive commits an ethical violation following a scandal," the
judge concluded.
HP lead counsel Marc Sonnenfeld -- msonnenfeld@morganlewis.com --
of Morgan Lewis declined to comment. The Litigation Daily didn't
immediately hear back from plaintiffs counsel Ira Press --
ipress@kmllp.com -- of Kirby McInerney.
MARRIOTT INT'L: Opposes Ex-Employees' Class Certification Bid
-------------------------------------------------------------
A June hearing was held on the opposition of Marriott
International, Inc. to a motion for class certification filed by
its former employees, according to the company's July 24, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
On January 19, 2010, several former Marriott employees (the
"plaintiffs") filed a putative class action complaint against us
and the Stock Plan (the "defendants"), alleging that certain
equity awards of deferred bonus stock granted to the plaintiffs
and other current and former employees for fiscal years 1963
through 1989 are subject to vesting requirements under the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that are in certain circumstances more rapid than those
set forth in the awards.
The plaintiffs seek damages, class attorneys' fees and interest,
with no amounts specified. The action is proceeding in the United
States District Court for the District of Maryland (Greenbelt
Division) and Dennis Walter Bond Sr. and Michael P. Steigman are
the current named plaintiffs. The parties completed limited
discovery concerning the issues of statute of limitations and
class certification.
The company opposed Plaintiffs' motion for class certification in
October 2012, and filed a motion for summary judgment on the issue
of statute of limitations in December 2012. A hearing on both
issues was held on June 7, 2013, after which the company submitted
a post-hearing supplemental brief and plaintiffs responded.
MARRIOTT INT'L: Court Defers Ruling on Bond's Class Cert. Bid
-------------------------------------------------------------
In BOND v. MARRIOTT INTERNATIONAL, INC., District Judge Roger W.
Titus denied the defendants' motion for summary judgment; granted
the plaintiffs' cross-motion for summary judgment, and deferred
for 90 days its decision on the plaintiffs' motion for class
certification.
The case is DENNIS WALTER BOND, SR., et al., Plaintiffs, v.
MARRIOTT INTERNATIONAL, INC., et al., Defendants, CASE NO.
10-CV-1256-RWT, (D. Md.).
A copy of the District Court's August 9, 2013 Memorandum Opinion
is available at http://is.gd/CVxWi2from Leagle.com.
Dennis Walter Bond, Sr., Plaintiff, represented by George A Zelcs
-- GZelcs@koreintillery.com -- at Korein Tillery LLC, Michael E
Klenov -- MKlenov@KoreinTillery.com -- at Korein Tillery LLC,
Michael M Winter, Korein Tillery LLC, Steven Arthur Katz --
SKatz@koreintillery.com -- at Korein Tillery LLC, Timothy Francis
Maloney -- tmaloney@jgllaw.com -- at Joseph Greenwald and Laake PA
& William Herbert Bode, Bode and Grenier LLP.
Michael P Steigman, Plaintiff, represented by Michael E Klenov --
MKlenov@KoreinTillery.com -- at Korein Tillery LLC & William
Herbert Bode -- wbode@bode.com -- at Bode and Grenier LLP.
Marriott International, Inc., Defendant, represented by Benjamin
David Schuman, DLA Piper LLP US, Charles P Scheeler, DLA Piper US
LLP, Ian Cameron Taylor, DLA Piper US LLP & Mark Muedeking, DLA
Piper LLP US.
Marriott International, Inc. Stock and Cash Incentive Plan,
Defendant, represented by Benjamin David Schuman --
ben.schuman@dlapiper.com -- at DLA Piper LLP US, Charles P
Scheeler -- charles.scheeler@dlapiper -- at DLA Piper US LLP, Ian
Cameron Taylor -- ian.taylor@dlapiper.com -- at DLA Piper US LLP &
Mark Muedeking -- mark.muedeking@dlapiper.com -- at DLA Piper LLP
US.
Host Hotels & Resorts, Inc., Movant, represented by Elizabeth Anne
Reidy, Nystrom Beckman and Paris LLP & Gary S Thompson, Reed Smith
LLP.
Host Hotels & Resorts 1009 Comprehensive Stock and Cash Incentive
Plan, Movant, represented by Elizabeth Anne Reidy --
ereidy@nbparis.com -- at Nystrom Beckman and Paris LLP & Gary S
Thompson -- vthompson@reedsmith.com -- at Reed Smith LLP.
MERITOR INC: Former Subsidiary Still Faces Price Fixing Suits
-------------------------------------------------------------
A prior subsidiary of Meritor, Inc. continues to face fix pricing
suits filed in Canada by direct purchasers of filters, according
to the company's July 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
On March 31, 2008, S&E Quick Lube, a filter distributor, filed
suit in U.S. District Court for the District of Connecticut
alleging that several filter manufacturers and their affiliated
corporate entities, including a prior subsidiary of the company,
engaged in a conspiracy to fix prices, rig bids and allocate U.S.
customers for aftermarket automotive filters.
This suit was a purported class action on behalf of direct
purchasers of filters from the defendants. Several parallel
purported class actions, including on behalf of indirect
purchasers of filters, were filed by other plaintiffs in a variety
of jurisdictions in the United States and Canada. The U.S. cases
were consolidated into a multi-district litigation proceeding in
Federal court for the Northern District of Illinois.
On April 16, 2009, the Attorney General of the State of Florida
filed a complaint with the U.S. District Court for the Northern
District of Illinois based on these same allegations. In April
2012, the company settled with indirect purchasers for $3.1
million. In August 2012, the company entered into a settlement
agreement for the remaining claims with the U.S. direct purchasers
for $8.3 million. The settlement payment was made during the first
quarter of fiscal year 2013.
Following this settlement, the only remaining plaintiffs in the
litigation are those who filed their actions in Canada. The
company believes any liability associated with the claims of such
plaintiffs will be immaterial.
MICROSOFT CORP: Robbins Geller Files Securities Class Action
------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Aug. 12 disclosed that a class
action has been commenced in the United States District Court for
the District of Massachusetts on behalf of purchasers of Microsoft
Corporation common stock during the period between April 18, 2013
and July 18, 2013.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from August 12, 2013. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiff's counsel, Samuel H.
Rudman or David A. Rosenfeld of Robbins Geller at 800/449-4900 or
619/231-1058, or via e-mail at djr@rgrdlaw.com
If you are a member of this class, you can view a copy of the
complaint as filed or join this class action online at
http://www.rgrdlaw.com/cases/microsoft/
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to
do nothing and remain an absent class member.
The complaint charges Microsoft and certain of its officers with
violations of the Securities Exchange Act of 1934. Microsoft is
the world's largest software company, primarily as a result of its
near-monopoly on Windows personal computer ("PC") operating system
software and its Microsoft Office collection of productivity
programs.
The complaint alleges that, during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's financial performance and its tablet computer, the
Surface RT. Specifically, defendants misrepresented and failed to
make public the following adverse facts: (i) that the Company's
Surface RT product was experiencing poor customer demand and
lackluster sales; (ii) that the Company's Surface RT inventory
experienced a material decline in value during the quarter ended
March 31, 2013; (iii) that the Company's financial statements for
the quarter ended March 31, 2013 were materially false and
misleading and violated Generally Accepted Accounting Principles
and Microsoft's publicly disclosed policy of accounting for
inventories; (iv) that the Company's Form 10-Q for its third
quarter of 2013 failed to disclose then presently known trends,
events or uncertainties associated with the Surface RT product
that were reasonably likely to have a material effect on
Microsoft's future operating results; and (v) that based on the
foregoing, defendants lacked a reasonable basis for their positive
statements about the Company's Surface RT product during the Class
Period.
On July 18, 2013, Microsoft issued a press release announcing its
financial results for the fiscal 2013 fourth quarter and year end,
the periods ended June 30, 2013. For the quarter, the Company
reported revenue of $19.9 billion and net income of $4.97 billion,
or $0.59 per share. The Company's results for the quarter were
adversely impacted by a $900 million inventory charge, or an
amount equal to $.07 per share, related to Surface RT "inventory
adjustments." On this news, Microsoft common stock suffered its
biggest price decline in more than four years, plunging $4.04 per
share, or 11.4%, on very heavy trading volume to close at $31.40
per share.
Plaintiffs seek to recover damages on behalf of all purchasers of
Microsoft common stock during the Class Period. The plaintiffs
are represented by Robbins Geller, which has expertise in
prosecuting investor class actions and extensive experience in
actions involving financial fraud.
Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and
international institutional investors in contingency-based
securities and corporate litigation. With nearly 200 lawyers in
nine offices, the firm represents hundreds of public and multi-
employer pension funds with combined assets under management in
excess of $2 trillion. The firm has obtained many of the largest
recoveries and has been ranked number one in the number of
shareholder class action recoveries in MSCI's Top SCAS 50 every
year since 2003.
PAIN THERAPEUTICS: Still Faces Securities Suit by KB Partners
-------------------------------------------------------------
Pain Therapeutics, Inc. continues to face the suit "KB
Partners I, L.P., Individually and On Behalf of All Others
Similarly Situated v. Pain Therapeutics, Inc., Remi Barbier, Nadav
Friedmann and Peter S. Roddy," according to Pain's July 24, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
On December 2, 2011, a purported class action was filed against
the company and its executive officers in the U.S. District Court
for the Western District of Texas. This complaint alleges, among
other things, violations of Section 10(b), Rule 10b-5, and Section
20(a) of the Exchange Act arising out of allegedly untrue or
misleading statements of material facts made by the company
regarding REMOXY's development and regulatory status during the
purported class period, February 3, 2011 through June 23, 2011.
The complaint states that monetary damages are being sought, but
no amounts are specified.
PENGUIN GROUP: Discovery Bid Denied in Suit v. Lance Armstrong
--------------------------------------------------------------
In ROB STUTZMAN, et al., Plaintiffs, v. LANCE ARMSTRONG, et al.,
Defendants, NO. 2:13-CV-0116-MCE-KJN,(E.D. Calif.), Magistrate
Judge Kendall J. Newman denied, without prejudice, plaintiffs'
motion to compel discovery from defendants Lance Armstrong;
Penguin Group (USA) Inc., G.P. Putnam's Sons, and The Berkley
Publishing Group; and Random House, Inc., Broadway Books, and
Crown Publishing Group.
"While plaintiffs are understandably impatient to start discovery,
they have not made any showing of significant prejudice that would
result from a temporary stay of discovery. By contrast, defendants
risk incurring substantial cost, expense, and burden in engaging
in the proposed discovery, which may be futile if the district
judge finds that plaintiffs fail to state viable claims," ruled
Judge Newman.
A copy of the District Court's August 2, 2013 Order is available
at http://is.gd/9sGaeDfrom Leagle.com.
PENNSYLVANIA: Settlement of FLSA Suit vs. Corrections Dept Okayed
-----------------------------------------------------------------
Chief District Judge Yvette Kane approved a settlement agreement
resolving the case captioned JAY T. DINO, et al., Plaintiffs, v.
COMMONWEALTH OF PENNSYLVANIA, et al. Defendants, NO. 1:08-CV-
01493, (M.D. Penn.).
Jay T. Dino and 26 other named plaintiffs initiated this action by
filing a complaint against the Commonwealth of Pennsylvania,
Department of Corrections, and then-Secretary of Corrections,
Jeffrey A. Beard, under the collective action provisions of the
Fair Labor Standards Act (FLSA), 29 U.S.C. Section 207.
The Court held that the parties' proposed settlement agreement is
fair and reasonable and does not frustrate the implementation of
the FLSA in the workplace.
Among other things, the settlement provides that Defendant
Commonwealth will pay Class Members, Named Plaintiffs, Class
Leaders and Plaintiffs' Counsel a Total Settlement Payment of
$500,000. This is an amount agreed to among the parties to
compromise, settle and satisfy the disputed claims of Named
Plaintiffs and the Opt-in Plaintiffs for all amounts potentially
recoverable in an FLSA collective action. These payments are in
settlement of all amounts sought in this litigation and break down
as follows:
-- 247 members in the conditionally certified class who will
be compensated on a per capita basis in the amount of
$1,270.45 per plaintiff, for a total of $313,800.
-- 27 Named Plaintiffs, who will be compensated in the amount
of $500 per named plaintiff, for a total of $13,500;
-- 6 Class Leaders, who will be compensated in the amount of
$3,000 per Class Leader, for a total of $18,000;
-- $4,700 for litigation costs;
-- $150,000 for attorneys' fees, subject to approval by the
Court.
The Court also approved the parties' joint motion for an order
dismissing the action with prejudice.
The Court directed the Clerk of Court to close the case, subject
to the right of Plaintiffs' counsel to file his fee petition and
subject to either party's right to request Court intervention to
address issues related to implementation of the agreement for a
period of sixty calendar days following the date of the order.
A copy of the District Court's August 8, 2013 Memorandum is
available at http://is.gd/iUpyr5from Leagle.com.
Plaintiffs Jay T. Dino, Plaintiffs Michael J. Proce, Robert N.
Booterbaugh, Rodney Carberry, Donald Conrad, Terry L. Cook, Edward
Evans, Kathy Flowers, Chad E. Grassmyer, L. Merritt Hammond, Neil
R. Hoffman, Daniel E. Hooper, Kenneth C. Klaus, Jr., Robert
Kreider, Martin Kuzar, James Moore, Jeffrey Pryal, Vickie
Richards, William J. Ryan, James E. Simms, Jr., Christopher
Simoncini, Lester R. Smith, Les E. Stull, Albert M. Tarantella,
III, Michael J. Tsikalas, Richard L. Via, John J. Wickiser,
Vincent J. McClosky, Sr., George Funk, Noel Booth, Francis William
Rice, Frederick C. Shoop, Michael J. DeLucy, Keith Karanzas, Steve
Klineschmit, Lewis D. Litchard, Marlyn E. Schultz, Jr., Bradley R.
Meyers, Paul S. Sasway, John Martin, Bryan Boyer, Adrian P.
Hummel, Todd E. Leedom, Richard M. Hiltner, Robert H. Wilson,
William J. Rhoades, Rodney C. Walker, Tyrone Reddick, Frank E.
Baker, II, James F. Faust, III, Dominic J. Cecere, Jr., Robert D.
Crum, Dennis E. Wilt, Gregory W. Barnett, Joseph J. Saracemo, Jr.,
Edwin F. Wilt, Harry R. Younkin, James J. Popson, Joseph M.
Kremposky, Michelle L. Madison, Charles J. Andrews, John P.
Corran, Richard M. Elders, Anthony F. Eggleston, Leonard V.
Groblewski, Pamela J. Rohrer, David J. Smithbower, John H.
Reading, Scott McKenzie, Robert Long, Stephen Campbell, Robert B.
Fronk, Jeffrey S. Marcia, Daniel E. Waddell, Steven L. Whitesel,
Jack Greenfield, Daniel J. Baird, Joseph F. Ross, Jr., Walter W.
Grundel, Gregory D. Chiles, Santiago T. DeLeon, Charles F. McCoy,
Timothy E. Johnston, Dennis J. Knapp, John A. Raur, Laura R.
Bordonaro, William McConnell, Edward B. Morrison, John Craver,
Thomas Maurice Fultz, Timothy J. Lucas, Rodney L. Chambers, Norman
M. McNeal, David M. Shufesky, Jeremiah Robertson, Kenneth D.
Ransom, Cameron L. Kendrick, Walter P. Yackel, David P. Mitchell,
George J. Demchak, George J. Piskorik, Theodore W. Robinson, III,
Robert D. Gilbert, Richard D. Webreck, Kimberly L. Sittig, Robert
Procopio, Thomas Y. Serbin, David A. Hebner, Samuel J. Rymarowicz,
Daniel M. Daley, Andre D. Jones, Charles A. Judge, Randy Hayward,
Lee E. Colston, I, Timothy Jordan, John L. Bertolino, Larry T.
Moore, John P. LaFramboise, Scott A. Weidig, Robert Zedock, David
Lee, Mark L. Snyder, Eric T. Johnson, Jerry L. Price, Matthew
Krone, John H. Lozar, Jeffrey S. Knode, William P. Miller, Burley
L. Clark, Michael K. Gaudreau, James E. Vognetz, James Eveland,
Christopher J. Conti, Melissa Drago, Douglas A. Swift, Victor M.
Torres, Jr., Albert L. Caldwell, Michael L. Bush, Walter J.
Gleason, Timothy Seymore, Kirk K. Bearjar, Curtis M. Wright,
Eugene S. Kurten, Joseph A. Lukaslewski, Joel Kohler, Ronald J.
Andraychak, Jamie Harmon, Joseph V. Furman, Ryan A. Dunchack,
Lawrence J. Berry, Marci Baskerfield, Jill Cook, Ronald Henry,
John Beers, Vincent A. Lapinski, Gregory L. Wilkes, Scot A.
Sampsell, Margaret C. Bensel, Norman E. Folk, Michael S. Tracs,
Thorton T. Felder, Bryan P. Gardner, Randy Irwin, Theodore T.
Davis, Daniel S. Martynuska, Gale C. Thorton, Bradley M. Booher,
Larry W. Hoffman, Jeffery L. David, Kevin R. McElwain, Randy S.
Evans, John P. Everding, Nathan Goss, III, Kevin J. Racko, John
Rivello, David K. Wescott, David E. GreGoire, Robert M. Fox, Carl
F. Grove, Jr., Brian Anstead, Micky R. Dininno, James P. Knauff,
Joseph P. Lencovich, III, George Vodzak, Howard B. Sutton,
Clarence W. Blakey, Maria A. Williams, Sara A. Moser, Berkley D.
Bossard, Jr., Patrick James, Paul Horvath, Larry J. Moore, Jesse
Anthony James, Michael J. Barto, Henry S. Smith, Jr., Michael
Agostinelli, Ernest J. Mongelluzzo, James A. Giles, Jeff Tony,
Scott A. Lander, Richard A. Doyka, Robert C. Bakes, Matthew Reese,
Mark A. Knupp, Leesa M. Neece, Alfred S. Taylor, Jr., Bradley J.
Sheeder, Kevin Stevens, Timothy I. Robertson, Tracey L. Dixon,
Christopher R. Machold, Karl E. Vanaerhust, Frederick Latini,
Richard D. Boone, Randall S. Kuhn, Stephen V. Catalano, Brian D.
Hoerner, Steven G. Datenko, Robert J. Williams, Jr., Francis S.
Pinozzola, Edward P. Paloskoy, Jr., Mark Thomas, Jeffrey L.
Confer, John L. Kaufman, Scott Harr, Scott E. Slippy, Robert L.
Mowon, Joseph H. Whitton, Scott K. McCormick, Caleb J. Wilt, Roy
F. Maneck, Jr., James Lipscomb, Herbert E. Probst, III, Robert J.
Palko, Ronald C. Bronsburg, Darren J. Dilkson, Donald Smith,
Andrew P. Grove, Timothy M. Lang, Scott T. Woodring, Martin L.
Vojacek, Jr., Thomas Sultenberger, Todd T. Carini, Lawrence E.
Kurek, Brian S. Nilson, and Walter J. Antonishen, are represented
by Frank P. Clark -- fpc@clark-krevskylaw.com -- at Clark &
Krevsky, LLC.
Commonwealth of Pennsylvania, Department of Corrections,
Defendant, represented by Brian D. Pedrow --
pedrow@ballardspahr.com -- at Ballard Spahr Andrews & Ingersoll,
LLP & William K. Kennedy -- kennedyw@ballardspahr.com -- Ballard
Spahr LLP.
Jeffrey A. Beard, PH.D., Defendant, represented by Brian D.
Pedrow, Ballard Spahr Andrews & Ingersoll, LLP & William K.
Kennedy, Ballard Spahr LLP.
PEPPERELL BRAIDING: About 5,000 Holgate Toys Playmats Recalled
--------------------------------------------------------------
Lisa Arneill, writing for Growing Your Baby, reports that the U.S.
Consumer Product Safety Commission, in cooperation with the
Holgate Toy Division, of Pepperell Braiding Co Inc., have
announced a voluntary recall of about 5,000 Holgate Toys Playmats
because the wheels on the wooden vehicles can detach, posing a
choking hazard to young children.
Holgate Toys has received one report of the wheels detaching from
the body of a vehicle. No injuries have been reported.
The Wegmans Playmat Set includes a 24-inch by 30-inch cotton
canvas playmat and four toy wooden vehicles. The toy vehicles
include a blue car, a red "Wegmans" delivery van, a green
"Wegmans" farm tractor and a yellow "School Bus." The sets were
sold in a yellow box measuring about 12-inches by 12-inches with
"Wegmans Playmat Set," an age label circle with "2+" and "Made in
the USA" printed on the front of the box. UPC Code 0 7789028735 4
is printed on the back of the box.
The toys were sold exclusively at Wegmans Food Stores nationwide
from October 2012 through June 2013 for about $25.
Holgate Toys toll-free at (855) 344-7488 from 8:00 a.m. to 5:00
p.m. ET Monday through Friday or online at www.holgatetoy.com and
click on "Product Recall" for more information.
PHILIP MORRIS: Motion for Class Cert. in "Wyatt" Suit Denied
------------------------------------------------------------
District Judge Lynn Adelman denied class certification in the case
captioned CHARLES WYATT, individually and on behalf of a class of
others similarly situated, Plaintiff, v. PHILIP MORRIS USA, INC.
and ALTRIA GROUP, INC., Defendants, CASE NO. 09-C-0597,(E.D.
Wisc.).
Charles Wyatt seeks to represent a class composed of all Wisconsin
residents who purchased light cigarettes manufactured by Philip
Morris USA, Inc., between June 16, 2003 and the present.
The parties' motions for leave to submit supplemental materials
are granted.
Philip Morris' motion to strike is denied as moot, as the Court
did not rely on the disputed materials in the course of deciding
the motion for class certification.
A copy of the District Court's August 8, 2013 Decision and Order
is available at http://is.gd/ot8Cfyfrom Leagle.com.
Ljiljana Nikolic, Plaintiff, represented by Erich P Schork --
e.schork@barnowlaw.com -- at Barnow and Associates PC, Ben Barnow
-- b.barnow@barnowlaw.com -- at Barnow and Associates PC, Brian K
Herrington -- bherrington@barrettlawgroup.com -- at Don Barrett
PA, Burton H Finkelstein -- bfinkelstein@finkelsteinthompson.com
-- at Finkelstein Thompson LLP, David McMullan, Jr, at Don Barrett
PA, David J Syrios -- dsyrios@ademilaw.com -- at Ademi & O'Reilly
LLP, Don Barrett, Don Barrett PA, Guri Ademi --
gademi@ademilaw.com -- at Ademi & O'Reilly LLP, Larry D Drury,
Larry D Drury Ltd & Shpetim Ademi -- sademi@ademilaw.com -- at
Ademi & O'Reilly LLP.
Kevin E Konkel, Plaintiff, represented by Erich P Schork, Barnow
and Associates PC, Ben Barnow, Barnow and Associates PC, Brian K
Herrington, Don Barrett PA, Burton H Finkelstein, Finkelstein
Thompson LLP, David J Syrios, Ademi & O'Reilly LLP, Don Barrett,
Don Barrett PA, Guri Ademi, Ademi & O'Reilly LLP, Larry D Drury,
Larry D Drury Ltd & Shpetim Ademi, Ademi & O'Reilly LLP.
Charles Wyatt, Plaintiff, represented by Ben Barnow, Barnow and
Associates PC, Brian K Herrington, Don Barrett PA, Erich P Schork,
Barnow and Associates PC & John D Blythin -- jblythin@ademilaw.com
-- at Ademi & O'Reilly LLP.
Philip Morris USA Inc, Defendant, represented by David B Bartel --
david.bartel@quarles.com -- at Quarles & Brady LLP, David E Kouba
-- david.kouba@aporter.com -- at Arnold & Porter LLP, John C
Massaro -- john.massaro@aporter.com -- at Arnold & Porter LLP,
Patrick S Nolan -- pnolan@quarles.com -- at Quarles & Brady LLP &
Philip H Curtis -- Philip.Curtis@aporter.com -- at Arnold & Porter
LLP.
Altria Group Inc, Defendant, represented by Anthony S Baish --
abaish@gklaw.com -- at Godfrey & Kahn SC, Patrick S Nolan --
pnolan@quarles.com -- at Quarles & Brady LLP & William H Levit, Jr
-- wlevit@gklaw.com -- at Godfrey & Kahn SC.
POPULAR COMMUNITY: Dist. Court Remands "Valle" Class Action
-----------------------------------------------------------
District Judge Louis L. Stanton granted a motion to remand in the
case captioned JOSEFINA VALLE and WILFREDO VALLE, individually and
on behalf of all others similarly situated, Plaintiffs, v. POPULAR
COMMUNITY BANK f/k/a Banco Popular North America, Defendant, NO.
12 CIV. 9315 (LLS), (S.D. N.Y.).
The plaintiffs, New York citizens and joint holders of a deposit
account with New York-chartered Popular Community Bank, moved to
remand their putative class action complaint alleging that Popular
charged excessive account overdraft fees in violation of New York
law.
Popular has removed the action from the Supreme Court of the State
of New York, County of New York, Commercial Division, on the
assertion that its operations in states other than New York merit
the exercise of federal diversity jurisdiction under the Class
Action Fairness Act of 2005, 28 U.S.C. Section 1332(d), and that
federal banking laws regulating its alleged misconduct create
federal question jurisdiction.
"The Court declines to exercise diversity jurisdiction under CAFA,
and none of the plaintiffs' claims arise under federal law," says
Judge Stanton. "The motion to remand is therefore granted."
A copy of the District Court's August 6, 2013 Opinion and Order
is available at http://is.gd/JMLrLEfrom Leagle.com.
Josefina Valle, Plaintiff, represented by Joseph Peter Guglielmo,
Scott Scott, L.L.P. & Joseph Seth Tusa, Tusa P.C..
Wilfredo Valle, Plaintiff, represented by Joseph Peter Guglielmo,
Scott Scott, L.L.P. & Joseph Seth Tusa, Tusa P.C..
Popular Community Bank, Defendant, represented by Andrew E.
Nieland -- andrew.nieland@bfkn.com -- at Barack Ferrazzano
Kirschbaum & Nagelberg LLP & Jonathan Daniel Lupkin, Rakower
Lupkin PLLC.
PROCTER & GAMBLE: 9th Cir. Affirms Dismissal of "Edmunson" Suit
---------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit affirmed
the dismissal of the case captioned RYAN EDMUNDSON, on behalf of
himself, all others similarly situated and the general public,
Plaintiff-Appellant, v. THE PROCTER & GAMBLE COMPANY, Defendant-
Appellee, NO. 11-56664.
Plaintiff-Appellant Ryan Edmundson filed a putative class action
against the Procter & Gamble Company, which manufactures, markets,
and sells "Fusion Power" and "Fusion Manual" shaving handles and
razor cartridges. Edmundson alleged that P&G engaged in false
advertising for these products in violation of California's Unfair
Competition Law, Cal. Bus. & Prof. Code Section 17200-10, and
Consumer Legal Remedies Act, Cal. Civ. Code Section 1770. The
district court dismissed Edmundson's action for failure to state a
claim.
A copy of the District Court's August 9, 2013 Memorandum is
available at http://is.gd/OwyTFpfrom Leagle.com.
ROBERT RESOURCES: Summary Judgment Bid in "Doores" Suit Denied
--------------------------------------------------------------
District Judge Susie Morgan denied, without prejudice, a motion
for summary judgment in SAMUEL DOORES, et al., Plaintiffs, v.
ROBERT RESOURCES, LLC, SECTION "E". Defendant, CIVIL ACTION NO.
12-1499, (E.D. La.).
The Plaintiffs' motion to strike portions of two affidavits
attached to the Defendants' motion for Summary Judgment is also
dismissed as moot.
This case is a putative class action involving a group of
plaintiffs who purchased groceries from the Defendant, an operator
of a chain of local grocery stores. The Plaintiffs claim the
Defendant failed to truncate the expiration dates for the
Plaintiffs' respective credit cards when it issued receipts for
those transactions. Because they say other individuals have had
this same experience, they sought to have this case certified as a
class action under Federal Rule of Civil Procedure 23. The
Plaintiffs claim the defendant's failure to truncate the
expiration dates amounted to a violation of the "Receipt
Provision" of the Fair and Accurate Credit Transactions Act. The
Plaintiffs do not claim to have suffered actual damage as a result
of the Defendant's violation. Instead, the Plaintiffs claim that
the Defendant's willful violation entitles them to statutory and
punitive damages under 15 U.S.C. Section 1681n.
A copy of the District Court's August 8, 2013 Order and Reasons
is available at http://is.gd/7gKiJefrom Leagle.com.
Samuel Doores, Plaintiff, represented by Russ M. Herman --
rherman@hhklawfirm.com -- at Herman, Herman & Katz, LLC, Andrew
David Bizer -- andrew@bizerlaw.com -- at Bizer Law Firm, LLC, M.
Ryan Casey, Ku & Mussman, PA, Soren Erik Gisleson --
sgisleson@hhklawfirm.com -- at Herman, Herman & Katz, LLC &
Stephen J. Herman -- sherman@hhklawfirm.com -- at Herman, Herman &
Katz, LLC.
Benjamin McCullough, Plaintiff, represented by Russ M. Herman,
Herman, Herman & Katz, LLC & Andrew David Bizer, Bizer Law Firm,
LLC.
Benjamin McCullough, Plaintiff, represented by M. Ryan Casey --
ryan@kumussman.com -- at Ku & Mussman, PA.
Benjamin McCullough, Plaintiff, represented by Soren Erik
Gisleson, Herman, Herman & Katz, LLC & Stephen J. Herman, Herman,
Herman & Katz, LLC.
Alynda Segarra, Plaintiff, represented by Russ M. Herman, Herman,
Herman & Katz, LLC, Andrew David Bizer, Bizer Law Firm, LLC, M.
Ryan Casey, Ku & Mussman, PA, Soren Erik Gisleson, Herman, Herman
& Katz, LLC & Stephen J. Herman, Herman, Herman & Katz, LLC.
Robert Resources, LLC, Defendant, represented by Leslie A. Lanusse
-- leslie.lanusse@arlaw.com -- at Adams & Reese, LLP, Gregory
Fortier Rouchell -- gregory.rouchell@arlaw.com -- at Adams &
Reese, LLP, Katie F. Wollfarth -- katie.francioni@arlaw.com -- at
Adams & Reese, LLP & William Bernard Gaudet --
william.gaudet@arlaw.com -- at Adams & Reese, LLP.
SPARTAN: Recalls 3 MMP100 Model Fire Trucks in Canada
-----------------------------------------------------
Starting date: August 9, 2013
Type of communication: Recall
Subcategory: Truck - Med. & H.D.
Notification type: Safety Mfr
System: Other
Units affected: 3
Source of recall: Transport Canada
Identification number: 2013276
TC ID number: 2013276
Manufacturer recall number: ERV13-001
Affected products:
Make Model Model year(s) affected
---- ----- ----------------------
SPARTAN MMP100 (MID MOUNT PLATFORM - 100FT) 2008
SPARTAN RMP100 (REAR MOUNT PLATFORM - 100FT) 2005, 2008
On certain fire trucks, the adhesive used to secure the rotation
interlock magnets may degrade over time, allowing the aerial to
rotate even if the outriggers are not fully deployed. This could
cause the vehicle to become unstable and roll over, which may
result in property damage and/or personal injury.
Dealers will securely fasten the rotation interlock magnets.
SPARTAN: Recalls 14 STAR SERIES Model Fire Trucks
-------------------------------------------------
Starting date: August 9, 2013
Type of communication: Recall
Subcategory: Truck - Med. & H.D.
Notification type: Safety Mfr
System: Other
Units affected: 14
Source of recall: Transport Canada
Identification number: 2013278
TC ID number: 2013278
Affected products: SPARTAN STAR SERIES - 2008, 2009, 2011, 2012,
2013 models
On certain fire trucks, pins which hold the ladder in place may
loosen over time. This could allow the ladder arm to deploy
without warning. As such, the ladder could strike another vehicle
or a bystander, causing property damage and/or personal injury.
Dealers will secure the ladder pins by installing spacers and
locking nuts.
STANFORD GROUP: CCO Liable for Securities Fraud, Judge Rules
------------------------------------------------------------
Sue Reisinger, writing for Corporate Counsel, reports that an
administrative law judge has found Bernerd Young, who served as
chief compliance officer for convicted Ponzi schemer Allen
Stanford's now-defunct brokerage, liable for securities fraud.
The judge's order bars Mr. Young from working in the securities
industry.
"Mr. Young is very disappointed in the results, but he is
extremely grateful for the support he's gotten from the compliance
industry since the ruling came down," his attorney, J. Randle
Henderson of Houston, told CorpCounsel.com.
Mr. Henderson also said in a statement that Mr. Young is "deeply
troubled by the [order's] disturbing implications for the
securities compliance industry and the newer and more draconian
standards that compliance officers may be facing."
His statement added, "The decision demonstrates the real danger to
compliance officers relying upon advice of independent outside
counsel, fully licensed and qualified accounting firms and the
audited financial opinions they issue, and the sovereign financial
regulatory agencies of foreign countries."
Mr. Young, and two other executives found liable with him, had
denied any wrongdoing and said they didn't know Stanford was
running a Ponzi scheme.
But attorney David Reece, leading a legal team from the Securities
and Exchange Commission's division of enforcement, argued that
Mr. Young and the others ignored numerous red flags, approved
false and misleading training materials for financial advisors,
and misrepresented information about the company's portfolio,
including about its content, insurance coverage for fraud, and
level of risk.
In the August 2 ruling, Judge Carol Fox Foelak called their
conduct "egregious" for making material misrepresentations and
omissions that enabled Stanford to bilk investors out of millions
of dollars. Stanford was sentenced over a year ago to 110 years
in prison.
Her order states that when Mr. Young and the others were made
aware of allegations of corruption, "rather than investigate the
possible truthfulness of these charges they decided that [the
company] should attack with talking points."
Besides the employment bar, the judge ordered the three men to
cease and desist from committing securities fraud, pay enhanced
fines of $260,000 each, and disgorge profits made from the scheme.
In Young's case, that amounted to $592,000 plus interest.
The SEC never alleged that the three executives knew about
Stanford's Ponzi scheme. In fact, the other two executives
actually lost money by investing in the scheme. But it said they
failed to ensure that marketing materials and other disclosures
were adequate for investors.
The three argued unsuccessfully that the SEC failed to prove they
committed fraud.
According to SEC documents, Mr. Young was employed at the National
Association of Securities Dealers (now the Financial Industry
Regulatory Authority) as its district director in the Dallas
office when he was terminated in May 2003. He worked as a
consultant until he was hired at Stanford's brokerage in mid-2006.
Since Stanford's company crashed four years ago, Mr. Young has
been "a principal at a consulting firm in the Houston area that
consults with broker dealers and insurance companies," according
to his lawyer.
The order reads that Mr. Young "is barred from association with
any broker, dealer, investment adviser, municipal securities
dealer, municipal advisor, transfer agent, or nationally
recognized statistical rating organization and is prohibited,
permanently, from serving or acting as an employee, officer,
director, member of an advisory board, investment adviser or
depositor of, or principal underwriter for, a registered
investment company or affiliated person of such investment
adviser, depositor, or principal underwriter."
But his lawyer, Mr. Henderson, said Mr. Young can still consult,
and that Young's clients have been supportive of him.
The judge's ruling becomes final within 21 days unless Mr. Young
decides to ask the SEC to review the holding. Mr. Henderson said
his client has not yet decided whether to seek review.
STATE FARM: Response to Wingo Suit Dismissal Bid Due Aug. 19
------------------------------------------------------------
In WINGO v. STATE FARM FIRE AND CASUALTY COMPANY, Chief District
Judge Fernando J. Gaitan, Jr., denied the plaintiff's motion for
voluntary dismissal.
On April 10, 2013, the Court entered an order granting the
plaintiff's motion for extension of time in which to respond to
the defendant's Motion to Dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. The Court directed that the
response would be due 14 days after the Court ruled upon both the
plaintiff's motion to dismiss and the plaintiff's motion to
remand. The Court has now ruled both of those motions.
Accordingly, the Court held that the plaintiff's response to the
defendant's Rule 12(b)(6) Motion to Dismiss is due on or before
August 19, 2013.
The case is JARED WINGO, on behalf of himself and all others
similarly situated, Plaintiff, v. STATE FARM FIRE AND CASUALTY
COMPANY, Defendant, NO. 13-3097-CV-S-FJG, (W.D. Mo.).
A copy of the District Court's August 8, 2013 Order is available
at http://is.gd/ERm5PYfrom Leagle.com.
Jared Wingo, Plaintiff, represented by David L. Steelman --
dsteelman@steelmanandgaunt.com -- at Steelman, Gaunt & Horsefield
& Thomas H. Hearne, Hearne & Pivac.
State Farm Fire and Casualty Company, Defendant, represented by
Heidi Dalenberg -- hdalenberg@schiffhardin.com -- at Schiff Hardin
LLP, Joseph A Cancila, Jr -- jcancila@schiffhardin.com -- at
Schiff Hardin LLP, Monte P. Clithero, Taylor, Stafford, Clithero,
FitzGerald & Harris, LLP & Lance Roskens, Taylor, Stafford,
Clithero, FitzGerald & Harris, LLP.
STORM FINANCIAL: Judge Rejects Settlement Distribution Scheme
-------------------------------------------------------------
Tom Brennan, writing for The Asian Lawyer, reports that an
Australian federal appeals court has rejected a proposed
distribution scheme for a $75.3 million class action award to
investors in failed Australian financial advisory company Storm
Financial Ltd.
The settlement had been reached between the more than 1,000-member
class and Macquarie Bank Ltd., which issued loans for investments
in Storm Financial before it collapsed in 2009, last March. A
federal judge in Brisbane approved the deal in May but it was
subsequently challenged by the Australian Securities and
Investment Commission.
The distribution of the award had been set up so that those
plaintiffs -- around a third of the class -- who were represented
by law firm Levitt Robinson and had helped pay its fees, would
receive a larger portion of the payout than the other class
members. But a three-judge panel from the Federal Court of
Australia struck down that arrangement, saying it was not fair and
reasonable to all class members.
In the decision they issued on Aug. 12, the judges pointed out
that, while the merits of the claims of all group members were
relevant and identical, the awards to member who had helped fund
the case would amount to 42% of claimed losses, while the rest
would receive just around just 18%. The panel noted that this was
vastly out of proportion to the contribution of the "funders,"
some of whom had contributed less than $500.
The court noted that Levitt Robinson had made no mention of the
larger payout to funders until at least two years into the
litigation. Moreover, some members of the group being represented
by Levitt Robinson had not contributed to the funding until
immediately before the settlement was approved and for nominal
amounts.
"It was not fair or reasonable because none of the group members
who were not clients of Levitt Robinson were afforded the same
opportunity to participate at such a late stage for as little as
$500," the judges wrote. "Why should those 13 Levitt Robinson
clients be afforded that opportunity at the expense of the
Unrepresented Group Members? The answer is they should not."
The judges also took issue with how the premium had been
calculated. The funders were supposed to receive 35% of the total
$75.3 million award simply for paying the costs of litigation, or
$26.4 million, citing a percentage often used by commercial
litigation funders. However, unlike commercial litigation
funders, the plaintiffs in the case had done so without any
expectation that they would make a profit.
Commercial litigation funders formulate their fees based on a
number of facts, as well, the judges said, including to the nature
of the proceedings, the risk of the specific litigation, and
competition between funders for the right to fund the litigation,
among others. But in the present case, the judges said, the
evidence adduced was insufficient in the circumstances to support
the imposition of a premium of 35%.
"For those reasons," the judges said, "the decision of the primary
judge to approve the settlement and, in particular, the Settlement
Distribution Scheme was, in our view, erroneous. It cannot be
said that the distribution of the Settlement Pool was fair and
reasonable to all group members."
At the same time, the court emphasized group members do have the
right to fund their litigation, and include a premium for doing
so, as long as the terms and conditions are defined at the outset
of the case. Such an action is compensation for the risk involved
in initiating litigation, the judges said.
"The Court accepts that this form of litigation funding is an
important alternative to commercial litigation funders and should,
to the extent possible, be encouraged," the judges said.
"However, from the outset it must be established and managed
fairly to those who decide to fund the litigation and those who,
for whatever reason, choose not to."
Ronald Merkel QC -- ronmerkel@vicbar.com.au -- and Guy Donnellan
-- gdonnellan@wentworthchambers.com.au -- and Levitt Robinson
appeared for the respondents. John Sheehan SC --
john.sheahan@5wentworth.com -- Adam Pomeranke --
ampomerenke@qldbar.asn.au -- and Allens advised Macquarie.
Michael Colbran -- mcolbran@vicbar.com.au Lisa Nichols, and Sam
Wubbeling appeared for ASIC.
SUPERMEDIA INC: Claims Dismissed in Suit Against Retirees
---------------------------------------------------------
Senior District Judge Joe Fish granted motions to dismiss claims
and counterclaims filed by plaintiffs and defendants in
SUPERMEDIA, INC., ET AL., Plaintiffs, v. CAROL FOY, ET AL,
Defendants, CIVIL ACTION NO. 3:12-CV-2034-G, (N.D. Tex.).
This is a suit for declaratory judgment under the Employee
Retirement Income Security Act of 1974, 29 U.S.C. Sections 1001 et
seq. The plaintiffs, SuperMedia Inc., SuperMedia LLC, SuperMedia
Services Inc., SuperMedia Sales Inc., SuperMedia Employee Benefits
Committee, and Idearc Inceptor LTD, are various corporate entities
operating in the business of providing media solutions.
On June 25, 2012, SuperMedia enacted amendments to its retiree
health and welfare benefits plans. Because SuperMedia was aware
that these amendments might cause significant contention between
it and the affected retirees, it filed this suit on June 26, 2012,
seeking a declaratory judgment announcing the legality of these
amendments. The defendants are among those retirees potentially
affected by the amendments.
Before the court were (1) the motion of the Moving Defendants
Bell, Foy, Ketzer, Kraft, Lane, Leynes, Russo, Shapses, and
Sullivan to dismiss the Plaintiffs' claims against them, and (2)
the Plaintiffs' motion to dismiss the counterclaims of the
Defendants Mentzer, Noe, Ohnstad, Palmer, and Zenus.
The court concluded that the Mentzer defendants have not alleged
enough facts for the court to plausibly infer SuperMedia's intent
to discriminate against and discipline them. The Plaintiffs'
motion to dismiss the Mentzer defendants' ERISA Section 510
counterclaim is, therefore, granted.
The Moving Defendants' motion to dismiss for lack of personal
jurisdiction is also granted.
A copy of the District Court's August 7, 2013 Memorandum Opinion
and Order is available at http://is.gd/iMlETlfrom Leagle.com.
Supermedia Inc, Plaintiff, represented by Richard S Krumholz --
rkrumholz@fulbright.com -- at Fulbright & Jaworski, Abby Newman
Ruth -- aruth@fulbright.com -- at Fulbright & Jaworski LLP, Justin
Sean Coddington -- jcoddington@fulbright.com -- at Fulbright &
Jaworski LLP, Mark Stephen Miller --
mark.miller@nortonrosefulbright.com -- at Fulbright & Jaworski
LLP, Rachel Louise Williams --
rachel.williams@nortonrosefulbright.com -- at Fulbright & Jaworski
LLP & Scott P Drake -- scott.drake@nortonrosefulbright.com -- at
Fulbright & Jaworski.
Supermedia LLC, Plaintiff, represented by Richard S Krumholz,
Fulbright & Jaworski, Abby Newman Ruth, Fulbright & Jaworski LLP,
Justin Sean Coddington, Fulbright & Jaworski LLP, Mark Stephen
Miller, Fulbright & Jaworski LLP, Rachel Louise Williams,
Fulbright & Jaworski LLP & Scott P Drake, Fulbright & Jaworski.
SuperMedia Services Inc, Plaintiff, represented by Richard S
Krumholz, Fulbright & Jaworski, Abby Newman Ruth, Fulbright &
Jaworski LLP, Justin Sean Coddington, Fulbright & Jaworski LLP,
Mark Stephen Miller, Fulbright & Jaworski LLP, Rachel Louise
Williams, Fulbright & Jaworski LLP & Scott P Drake, Fulbright &
Jaworski.
SuperMedia Sales Inc, Plaintiff, represented by Richard S
Krumholz, Fulbright & Jaworski, Abby Newman Ruth, Fulbright &
Jaworski LLP, Justin Sean Coddington, Fulbright & Jaworski LLP,
Mark Stephen Miller, Fulbright & Jaworski LLP, Rachel Louise
Williams, Fulbright & Jaworski LLP & Scott P Drake, Fulbright &
Jaworski.
SuperMedia Employee Benefits Committee, Plaintiff, represented by
Richard S Krumholz, Fulbright & Jaworski, Abby Newman Ruth,
Fulbright & Jaworski LLP, Justin Sean Coddington, Fulbright &
Jaworski LLP, Mark Stephen Miller, Fulbright & Jaworski LLP,
Rachel Louise Williams, Fulbright & Jaworski LLP & Scott P Drake,
Fulbright & Jaworski.
Idearc Inceptor LTD, Plaintiff, represented by Richard S Krumholz,
Fulbright & Jaworski, Abby Newman Ruth, Fulbright & Jaworski LLP,
Justin Sean Coddington, Fulbright & Jaworski LLP, Mark Stephen
Miller, Fulbright & Jaworski LLP, Rachel Louise Williams,
Fulbright & Jaworski LLP & Scott P Drake, Fulbright & Jaworski.
Robert Mentzer, Defendant, represented by Curtis L Kennedy --
CurtisLKennedy@aol.com -- at Law Office of Curtis L Kennedy &
Robert E Goodman, Jr, Kilgore & Kilgore PLLC.
Sandra Noe, Defendant, represented by Curtis L Kennedy, Law Office
of Curtis L Kennedy & Robert E Goodman, Jr, Kilgore & Kilgore
PLLC.
Carl Ohnstad, Defendant, represented by Curtis L Kennedy, Law
Office of Curtis L Kennedy & Robert E Goodman, Jr, Kilgore &
Kilgore PLLC.
Claire Palmer, Defendant, represented by Curtis L Kennedy, Law
Office of Curtis L Kennedy & Robert E Goodman, Jr, Kilgore &
Kilgore PLLC.
Bernard Zenus, Defendant, represented by Curtis L Kennedy, Law
Office of Curtis L Kennedy & Robert E Goodman, Jr, Kilgore &
Kilgore PLLC.
TARSADIA HOTELS: Dismissal of Securities Fraud Suit Upheld
----------------------------------------------------------
Annie Youderian at Courthouse News Service reports that investors
who bought condominiums in the Hard Rock Hotel San Diego lost
their bid Tuesday Aug. 13, 2013, to revive a securities fraud
class action against the hotel's owners and operators.
The 9th Circuit upheld the dismissal of a lawsuit accusing
Tarsadia Hotels, 5th Rock LLC and others of fraudulently offering
securities disguised as real-estate transactions.
Buyers claimed they were forced to sign an overly restrictive
rental management agreement with Tarsadia after buying condos in
the 12-story hotel in San Diego's historic Gaslamp Quarter. The
hotel controlled the keys to the condos, they claimed, and let
buyers use them for only 28 days a year. Whether investors made
money on the condos wholly depended on the efforts of hotel
developer Tarsadia and operator 5th Rock LLC, buyers claimed.
They acknowledged having signed the purchase contracts and
zanagement agreements eight to 15 months apart, but said the two
documents effectively formed an investment contract "as a matter
of practical and economic reality."
This "unregistered, public offering of a security" violated
federal law, they claimed.
A federal judge dismissed the complaint for failure to allege that
the condos constituted a security, and the 9th Circuit agreed.
"Plaintiffs' allegations are not sufficient to show that a
security was sold when the condominiums were transferred," Judge
Ronald Gould wrote for the three-judge panel in Pasadena, Calif.
The panel similarly rejected the buyers' "economic reality"
argument, saying "the two transactions were distinct."
"Moreover, plaintiffs' economic-reality argument rests on the
implicit assumption that the only viable use for the condominiums
was as an investment property, but there is no plausible reason
why there cannot be a viable market for owner-occupied hotel-
condominiums for use as short-term vacation homes," Gould noted.
The plaintiffs' common-law fraud claims also fail, Gould said,
because they too "depend on the sale of a security."
The panel added that the lower court did not abuse its discretion
by denying the condo buyers leave to amend.
"Indeed, the district court gave plaintiffs specific instructions
on how to amend the complaint, and plaintiffs did not comply,"
Gould explained.
Other defendants in the underlying lawsuit were: MPK One LLC,
manager of 5th Rock; real-estate brokerage Playground Destination
Properties; Gaslamp Holdings LLC, which owns the hotel land;
Professional Mortgage Partners Inc.; and Tarsadia executives
Tushar Patel, B.U. Patel and Greg Casserly.
TYSON PREPARED: Wisc. Ct. Rules in Favor of Employees in Wage Suit
------------------------------------------------------------------
Tyson Prepared Foods, Inc., operates a meat processing plant in
Jefferson, Wisconsin. Six hourly employees who work in the plant
filed this wage claim action, as a class action, against Tyson
under Chapter 109 of the Wisconsin Statutes. The employees allege
that they are entitled to compensation for time they spend at the
plant putting on and taking off sanitary and protective equipment
and clothing as required by Tyson and also time spent walking to
and from work stations after donning and before doffing these
items. The circuit court granted summary judgment to Tyson on all
the employees' claims on the ground that, under the pertinent
Department of Workforce Development administrative code
provisions, donning and doffing this gear is not compensable
because it is not "integral" and "indispensable" to principal work
activities of the employees. The employees appeal.
The Court of Appeals of Wisconsin, District IV, agrees with the
employees that, under the plain terms of the DWD code, the donning
and doffing constitute "preparatory and concluding" activities
that are "an integral part of a principal activity," and therefore
the donning and doffing time is compensable, putting aside the
merits of any potential "de minimis" argument that might be
available to Tyson on remand.
Accordingly, the Wisconsin Appeals Court reverses the order
granting summary judgment to Tyson and remands for further
proceedings.
The case is JIM WEISSMAN, KEITH GRIEP, RANDY GARRETT, GREGORY
PETERS, SHANNON FITZPATRICK AND JAMES GENEMAN, PLAINTIFFS-
APPELLANTS, v. TYSON PREPARED FOODS, INC., DEFENDANT-RESPONDENT,
APPEAL NO. 2012AP2196.
A copy of the Appeals Court's August 1, 2013 Opinion is available
at http://is.gd/cZzacUfrom Leagle.com.
VOLVO TRUCKS: Recalls 3,287 VAH, VHD, VNL and VNM Model Trucks
--------------------------------------------------------------
Starting date: August 9, 2013
Type of communication: Recall
Subcategory: Truck - Med. & H.D.
Notification type: Safety Mfr
System: Visual System
Units affected: 3287
Source of recall: Transport Canada
Identification number: 2013275
TC ID number: 2013275
Manufacturer recall number: RVXX1304
Affected products:
Make Model Model year(s) affected
---- ----- ----------------------
VOLVO VNL 2011, 2012
VOLVO VNM 2011, 2012
VOLVO VHD 2011, 2012
VOLVO VAH 2011, 2012
On certain vehicles, the windshield wipers may fail. Loss of
windshield wiping capability, should it occur during a rainy/snowy
day, may compromise the driver's ability to see the road and its
users, which could result in a crash causing property damage
and/or personal injury.
Dealers will replace the wiper motor.
WAL-MART STORES: 3rd Cir. Vacates Class Cert. in "Hayes" Suit
-------------------------------------------------------------
The United States Court of Appeals for the Third Circuit vacated a
trial court's class certification order in WILLIAM HAYES, v. WAL-
MART STORES, INC., doing business as SAM'S CLUB; ABC CORPORATIONS
I-V (fictitious names) Wal-Mart Stores, Inc., doing business as
SAM'S CLUB, Appellant, NO. 12-2522.
Mr. Hayes brought the putative class action against Wal-Mart,
asserting claims for violation of the New Jersey Consumer Fraud
Act, breach of contract, and unjust enrichment in connection with
Wal-Mart's sale of extended warranty plans through Sam's Club
retail stores. Wal-Mart contests the trial court's order granting
Mr. Hayes' motion for class certification and filed an
interlocutory appeal under Fed. R. Civ. P. 23(f).
Post certification, the Third Circuit decided Marcus v. BMW of
North America, LLC, 687 F.3d 583 (3d Cir. 2012), which thoroughly
explored Fed. R. Civ. P. 23's class definition, ascertainability,
and numerosity requirements.
"On the existing record, this class does not survive the
ascertainability and numerosity requirements as articulated by
Marcus," rules the Third Circuit. "But because plaintiff did not
have an opportunity to address these requirements in the trial
court, we will vacate the certification order and remand for
further proceedings consistent with this opinion."
A copy of the Appeals Court's August 2, 2013 Opinion is available
at http://is.gd/3o5DZgfrom Leagle.com.
Charles B. Casper, Esq. -- ccasper@mmwr.com -- John G. Papianou,
Esq. -- jpapianou@mmwr.com -- [ARGUED], Paul H. Zoubek, Esq. --
pzoubek@mmwr.com -- at Montgomery, McCracken, Walker & Rhoads, 123
South Broad Street, 28th Floor, Philadelphia, PA 19109, Counsel
for Appellant.
Daniel Lapinski, Esq. -- dlapinski@wilentz.com -- [ARGUED],
Wilentz, Goldman & Spitzer, 90 Woodbridge Center Drive, 8th Floor,
Woodbridge, NJ 07095.
James C. Shah, Esq. -- jshah@sfmslaw.com -- at Shepherd,
Finikelman, Miller & Shah, 475 White Horse Pike, Collingswood, NJ
08107, Counsel for Appellee.
WEST PUBLISHING: Settlement Final Approval Hearing Set for Aug. 19
------------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that objectors to two settlements involving antitrust claims
against the makers of the BAR/BRI bar review preparatory course
materials have moved to recover their attorney fees, claiming they
were instrumental in unraveling the original deals in favor of new
agreements that better benefit class members.
In one settlement, for $9.5 million, attorney George Richard
Baker, who represents six objectors, seeks $578,750 in fees for
his "remarkably vital role" in raising red flags over an earlier
deal that involved coupons; the coupons were later were replaced
with cash.
Mr. Baker, a solo practitioner with offices in San Francisco and
Birmingham, Ala., also has objected to $1.9 million in fees sought
by Harris & Ruble of Los Angeles, class counsel in the case.
Mr. Baker did not return a call for comment and David Zelenski --
DZelenski@harrisandruble.com -- of Harris & Ruble declined to
comment. A final approval hearing is scheduled for August 19.
Meanwhile, a law firm for five objectors who successfully
challenged class counsel's fees in an earlier $49 million
settlement is expected to file an opening brief this month before
the U.S. Court of Appeals for the Ninth Circuit challenging
$236,000 in attorney fees and $1,700 costs awarded on January 14.
Kendrick & Nutley of Pasadena, Calif., claims its lawyers are
entitled to nearly $1.8 million.
The class actions both allege that law school students paid too
much for BAR/BRI bar review materials after West Publishing Corp.
and Kaplan Inc. conspired to establish a monopoly in violation of
the Sherman Act, the federal antitrust law. The $49 million
settlement resolved claims involving purchases made during the
nine years after August 1, 1997. That case, filed in 2005,
involved a class of 300,000 students who claimed they were
overcharged by about $1,000 for the course.
The $9.5 million settlement resolves similar claims by an
estimated 180,000 people who purchased the BAR/BRI exam materials
from August 1, 2006, through March 21, 2011.
Both cases are before U.S. District Judge Manuel Real in Los
Angeles.
In the more recent case, filed on February 6, 2008, Judge Real
dismissed the action, but plaintiffs appealed to the Ninth
Circuit, which sent the case back after both sides reached a
settlement. The original deal would have provided $5.29 million
in cash, paid for by West, plus coupons worth $150 a piece toward
the purchase of future courses, provided by Kaplan.
Judge Real, citing his concerns about the coupons, denied final
approval of that deal in 2011. He then dismissed the case.
The Ninth Circuit reversed dismissal, and the parties reached the
revised settlement, which added more than $4.2 million to the cash
fund and eliminated the coupon portion. In that deal, which Judge
Real preliminarily approved on April 19, Harris & Ruble seeks $1.9
million in attorney fees and nearly $50,000 in expenses.
"The $4.215 million increase to the cash value of the settlement
is the result of Class Counsel's strenuous advocacy over a year of
private and Ninth Circuit supervised mediation," Mr. Zelenski
wrote in a May 6 motion for attorney fees. "In this regard, at no
point since the denial of final approval of the prior settlement
did any party -- including the objectors -- take any formal action
whatsoever on behalf of Plaintiffs or the putative Class, whether
before this Court, before the Ninth Circuit, or during the resumed
mediation."
But Mr. Baker, the objectors' counsel, replied in a July 29 filing
that Harris & Ruble deserved no more than $380,000 in fees because
it lawyers conducted no written discovery or depositions.
Moreover, he wrote, the firm's billing invoices included work it
did for seven objectors to the separate $49 million settlement.
"Strict scrutiny of the billing and expense records submitted by
Class Counsel is in order considering an apparent conflict between
the class and Class Counsel by virtue of Class Counsels' petition
for fees and expenses," wrote Mr. Baker, who is seeking $578,750
in attorney fees and $6,000 in incentive awards for his clients,
who served a "remarkably vital role" in revising the earlier deal.
Harris & Ruble, in an August 5 objection, claim Mr. Baker's
clients were not responsible for the revised deal. He added that
Mr. Baker's firm worked fewer than 70 hours on the case and his
clients, whose concerns about the coupons mirrored that of more
than 200 other objectors, lack standing to object since they
hadn't submitted claims by the July 8 deadline.
Harris & Ruble also is seeking $4,000 for each of the five named
representatives in the case -- much less than the incentive awards
worth $10,000 to $75,000 that the Ninth Circuit cut out of the $49
million settlement. Kendrick & Nutley was one of two firms that
received about $8,000 in fees for its work in eliminating the
incentive awards from the deal.
On August 10 of last year, the Ninth Circuit upheld Judge Real's
decision to reduce attorney fees to McGuireWoods, class counsel in
the older case, from $12 million to $500,000, citing the firm's
"egregious" ethical violation in failing to disclose to class
members the incentive awards, which were based on the settlement's
value. Kendrick & Nutley's current fee request relates to that
reduction.
* Class Action Provision in India's Companies Bill a "Positive"
---------------------------------------------------------------
Rajesh Kumar, writing for Livemint, reports that the Companies
Bill passed by India's Parliament last week has a provision for
class action. Under this, shareholders and depositors of a
company will now be able to claim damages if they suffer due to
the management's wrong and unlawful action, which is not in the
interest of the stakeholders. In 2009, after Ramalinga Raju,
founder of Satyam Computers Services Ltd, confessed that he
misstated company accounts for years and the cash reserves shown
in the books actually did not exist, the stock was in a freefall.
Satyam shareholders in the US filed a lawsuit against the company,
claimed damages and got compensated. However, the Indian
shareholders had no such provision in the law and could not claim
compensation even in a clear case of fraud. But stakeholders in
India will now have this option and will be able to hold the
company and its officers accountable.
What's proposed
According to the new Companies Bill, if investors or depositors
are of the view that the management or the company is conducting
affairs that go against the interest of shareholders and
depositors, they can collectively file an application before a
tribunal. As per the Bill, a National Company Law Tribunal and
Appellate Tribunal will be set up to deal with such cases.
The law also provides an option for shareholders and depositors to
file an application and seek orders to restrain a company from
moves such as acting against the memorandum of the company and to
restrain it from acting against the resolutions passed by
shareholders.
Shareholders will be able to seek damages and compensation from
the company and its directors for wrongdoing and unlawful acts.
Compensation can also be claimed from the auditors and the audit
firm in case of mis-statement of facts or unlawful acts.
Conditions for appealing
Like in the Companies Act, 1956, there are conditions for
appealing here too. An appeal can be filed against a company only
if the appealing group constitutes at least 100 shareholders or
holds a certain percentage of the company's paid-up capital. Also,
not more than one application will be admitted for the same cause.
What's there for the defaulters
If a company fails to obey the orders of the tribunal, a penalty
would be imposed and the defaulting officer may also face
imprisonment. Interestingly, the Bill also states that if the
complaint is found to be "frivolous or vexatious", the applicant
will be liable to pay the other party. The idea is to ensure that
only genuine applications are filed.
The provision of class action is being seen as a major positive.
This will help investors by making companies and its officials
more accountable.
* FDA Issues Warning on Children's Laser Toys
---------------------------------------------
Mandy Velez, writing for The Huffington Post, reports that the
Food and Drug Administration released a statement on laser toy
safety, concluding that the concentrated light in laser beams
deteriorates eyesight -- and can even cause blindness. In
particular, children's laser toys concerned the FDA as anyone that
comes into contact with the light, directly or indirectly, is at
risk.
"Toys with lasers are of particular interest to the FDA because
it's often children who are injured by these products," the
statement says.
Dan Hewett, health promotion officer at FDA's Center for Devices
and Radiological Health, notes that, "because advertisers promote
them as playthings, parents and kids alike may believe they're
safe to use."
Toys that made the FDA's warning list include:
-- Lasers mounted on toy guns that can be used for "aiming"
-- Spinning tops that project laser beams while they spin
-- Hand-held lasers used during play as "lightsabers"
-- Lasers intended for entertainment that create optical
effects in an open room
Although the report says that laser beams don't create
instantaneous pain, they do cause permanent eye damage and burns
over time, even after one-time use.
When buying a laser product, the FDA advises looking for a
statement saying that the product complies with 21 CFR (the Code
of Federal Regulations) Subchapter J on the label.
"If you buy a laser toy or pointer and you don't see this
information in the labeling, it's best not to make any assumptions
about its safety," Mr. Hewett says.
When using the laser toys, the FDA advises not to shine the light
directly at anyone (including animals), but especially someone who
is driving or playing a sport.
* Line of Toys Among Recently Recalled Consumer Products
--------------------------------------------------------
The Associated Press reports that a line of toys that pose a
choking hazard and knife sets with defective sheaths are among
recently recalled consumer products. Others include youth beds
and bicycles.
Here's a more detailed look:
TOYS
DETAILS: Light-up toy frogs and ducks sold exclusively at Cost
Plus World Market between July 2012 and December 2012. The frog
comes in green and the ducks come in yellow, pink, and clear.
There is a round tag attached to the product with the UPC number
2424 5159.
WHY: The metal conductor pin on the bottom of the toys can come
out, posing a choking hazard.
INCIDENTS: None reported.
HOW MANY: About 30,000.
FOR MORE: Call Toysmith at 800-356-0474 or visit www.toysmith.com
and click on Safety on the left side of the page for more
information.
KNIFE AND SHEATH SETS
DETAILS: Gerber Uppercut fixed blade knife and sheath set. All
sets include a black nylon sheath with an engraved Gerber sword
and shield logo printed on the front and "GERBER" engraved on the
snap clip on the back. The Uppercut sets that were sold in a box
have model number 30-000650 printed on the box. Sets sold in
blister pack packaging have model number 31-001727 printed on the
packaging. They were sold from March 2013 through June 2013.
WHY: The Uppercut sheath does not hold the knife securely,
allowing the knife to come out of the sheath unexpectedly, posing
a laceration hazard.
INCIDENTS: One report of a laceration to a consumer that required
medical attention, but no stitches.
HOW MANY: About 2,900.
FOR MORE: Call Gerber Legendary Blades 800-289-4560 or visit
www.gerbergear.com and click on "Product Notifications" at the
bottom of the page for more information.
YOUTH BEDS
DETAILS: Sleepharmony metal youth beds in pink with model number
MB-YPT-R1, which can be found on the box and the instruction sheet
that came with the bed. The manufacture date code is located on a
yellow label affixed to the inside of the metal side rail and
appears as MFG: year/month/day: "MFG: 2013/01/25." The recalled
beds were made between December 2011 and May 2013 and sold from
February 2012 through June 2013.
WHY: The surface paint on the pink-colored youth beds contains
levels of lead that exceed the limits allowed by law.
INCIDENTS: No information available.
HOW MANY: About 1,850.
FOR MORE: Call Glideaway at 800-428-5222, ext. 265 or visit
www.glideaway.com/recall/for more information.
TABLETOP TORCHES
DETAILS: Tabletop torches sold exclusively at Big Lots stores from
March 2013 through June 2013. The torches have a wick and burn
liquid citronella fuel. "Table Top Torch distributed by Big Lots,
Inc." and item #DC12-21111 (large torch) or Item #DC10-20160
(small torch) is printed on a yellow label on the bottom of the
large torch and on a hang tag on the small torch.
WHY: Once lit, the glass citronella table torches can flare up and
emit burning lamp oil onto consumers and property, posing fire and
burn hazards.
INCIDENTS: 20 reports of liquid fuel erupting from the torches
with high flames, including two serious injuries with second and
third degree burns and seven with minor burns. One of the serious
burn injuries involved burns to the legs and abdomen and a second
victim received burns all over the body while attempting to
extinguish the flames. All of the incidents involved property
damage.
HOW MANY: About 30,000.
FOR MORE: Call Big Lots at 866-244-5687 or visit www.biglots.com
and click on "Recalls" at the bottom for more information.
BICYCLES
DETAILS: Giant Bicycle Inc.'s XtC Bicycles and Seatposts. The
recall includes 2013 model year Giant XtC Advanced SL 29er 0 and
29er 1 series bicycles and 27.2 mm carbon fiber seatposts sold
separately. The SL 29er 0 model bicycle is white, black and blue.
The SL 29er 1 model is white, black and red. The letters "XTC"
appear on the down tube of the frame on both bicycles. The name
"Giant" and "Contact SLR" appear on the 27.2 mm carbon fiber
seatposts. They were sold from November 2012 and May 2013.
WHY: The bicycle seatposts on the affected bicycles and the after-
market seatposts can crack, posing a fall hazard.
INCIDENTS: Giant Bicycles received five reports of the bicycle
seatposts breaking. No injuries have been reported.
HOW MANY: Information not available.
FOR MORE: Call Giant Bicycle at 866-458-2555 or visit www.giant-
bicycles.com-en-us/ and click on Recall Information at the bottom
of the page for more information.
PLAYMAT SETS
DETAILS: Holgate Toys playmat sets sold exclusively at Wegmans
Food Stores from October 2012 through June 2013. The set includes
a 24-inch by 30-inch cotton canvas playmat and four toy wooden
vehicles. The toy vehicles include a blue car, a red "Wegmans"
delivery van, a green "Wegmans" farm tractor, and a yellow "School
Bus." The sets were sold in a yellow box measuring about 12-
inches by 12-inches with "Wegmans Playmat Set," an age label
circle with "2+" and "Made in the USA" printed on the front of the
box. UPC Code 0 7789028735 4 is printed on the back of the box.
WHY: The wheels on the wooden vehicles can detach, posing a
choking hazard to young children.
INCIDENTS: One report of the wheels detaching from the body of a
vehicle. No injuries have been reported.
HOW MANY: About 5,000.
FOR MORE: Call Holgate Toys at 855-344-7488 or visit
www.holgatetoy.com and click on "Product Recall" for more
information.
Asbestos Litigation
ASBESTOS UPDATE: Rapid-American Taps Fitzpatrick as FCR
-------------------------------------------------------
Rapid-American Corp. asks the U.S. Bankruptcy Court for permission
to appoint Lawrence Fitzpatrick as the Future Claimants'
Representative.
The Future Claimants' Representative will have standing under
section 1109(b) of the Bankruptcy Code to be heard as a party-in-
interest in all matters relating to the Debtor's chapter 11 case,
including, but not limited to, participation in the claims
objection, estimation and plan-negotiation processes, and shall
have such powers and duties of a committee as set forth in 11
U.S.C. Sec. 1103 as are appropriate for a Future Claimants'
Representative.
Mr. Fitzpatrick will be compensated at his hourly rate of $420,
subject to periodic adjustment, plus reimbursement of reasonable
expenses.
Hearing on the Debtor's Motion will be held Aug. 20, 2013 at 10:00
a.m. (prevailing Eastern Time).
Attorneys for the Debtor can be reached at:
Chrystal A. Puleo, Esq.
Paul M. Singer, Esq.
REED SMITH LLP
599 Lexington Avenue, 22nd Floor
New York, NY 10022
Tel: (212) 521-5400
Fax: (212) 521-5450
E-mail: cpuleo@reedsmith.com
psinger@reedsmith.com
About Rapid-American Corp.
Rapid-American Corp. filed for bankruptcy protection in Manhattan
(Bankr. S.D.N.Y. Case No. 13-10687) on March 8, 2013, to deal with
debt related to asbestos personal-injury claims.
New York-based Rapid-American was formerly a holding company with
subsidiaries primarily engaged in retail sales and consumer
products and was never engaged in an asbestos business of any
kind. Through a series of merger transactions going back more
than 45 years, Rapid has nevertheless incurred successor liability
for personal injury claims arising from plaintiffs' exposure to
asbestos-containing products sold by The Philip Carey
Manufacturing Company -- Old Carey -- as that entity existed prior
to June 1, 1967.
Attorneys at Reed Smith LLP serve as counsel to the Debtor.
The Debtor disclosed assets in excess of $4,446,261 and unknown
liabilities.
The Official Committee of Unsecured Creditors retained Caplin &
Drysdale, Chartered, as counsel.
ASBESTOS UPDATE: Payne's Civil Rights Actions Dismissed
-------------------------------------------------------
Chief Magistrate Judge Lisa Puno Lenihan of the U.S. District
Court for the Western District of Pennsylvania dismissed without
prejudice an inmate's pro se civil rights actions alleging that
defendants violated his federal constitutional rights while he was
detained at the Fayette County Prison. In his complaint, the
inmate alleged that his cell had a large fan situated directly
next to a heating pipe that was covered with asbestos. He claims
that the fan blew asbestos fibers in his face.
The Defendants in the two complaints moved to dismiss the
Complaint on the basis that they lack personal involvement in the
alleged wrongdoing and they cannot be liable based on a theory of
supervisory liability. Chief Magistrate Judge agreed and held
that the Plaintiff has failed to allege any personal involvement
on the Defendants' part of which could state a plausible claim for
relief.
The first case is DONALD PAYNE, JR., Plaintiff, v. SHERIFF GARY
BROWNFIELD, Chairman of the Fayette County Board of Inspectors,
Defendant, CIVIL ACTION NO. 12-1584 (W.D. Pa.). A full-text copy
of the Chief Magistrate Judge's Memorandum Opinion dated Aug. 12,
2013, is available at http://is.gd/BGp4RVfrom Leagle.com
The second case is DONALD PAYNE, JR., Plaintiff, v. MICHAEL J.
ZAVADA, D/W Security and BRIAN MILLER, Warden, Defendants, CIVIL
ACTION NO. 12-1206 (W.D. Pa.). A full-text copy of the Chief
Magistrate Judge's Memorandum Opinion dated Aug. 12, 2013, is
available at http://is.gd/AzNkRxfrom Leagle.com
SHERIFF GARY BROWNFIELD, MICHAEL J. ZAVADA, and BRIAN S. MILLER,
Defendants, are represented by Marie Milie Jones, Esq., and
Michael R. Lettrich, Esq., at JonesPassodelis PLLC.
ASBESTOS UPDATE: 3 Inmates' Civil Rights Actions Dismissed
----------------------------------------------------------
Judge J. Phil Gilbert issued three separate memoranda and orders
dismissing pro se civil rights actions filed by three inmates who
were incarcerated at the Vienna Correctional Center. All three
complaints allege, among other things, that the inmates were
exposed to asbestos during their incarceration.
In the first case captioned DECARLOS SCOTT, # M-34683, Plaintiff,
v. VIENNA CORRECTIONAL CENTER, Defendant, CASE NO. 13-CV-681-JPG
(S.D. Ill.), Judge Gilbert ruled that the only named Defendant,
"Vienna Correctional Center," is not an entity subject to being
sued in a civil rights claim and is not a "person" within the
meaning of the Civil Rights Act. A full-text copy of Judge
Gilbert's Decision, dated Aug. 6, 2013, is available for free at
http://is.gd/swzrr9from Leagle.com
In the second case captioned ANDREW BROWN, # K-58246, Plaintiff,
v. VIENNA CORRECTIONAL CENTER and STATEVILLE RNC, Defendants, CASE
NO. 13-CV-667-JPG (S.D. Ill.), Judge Gilbert reiterated his ruling
in Scott that Vienna Correctional is not properly subject to being
sued in a civil rights action, and so is Stateville RNC. A full-
text copy of Judge Gilbert's Decision dated Aug. 7, 2013, is
available for free at http://is.gd/I5WS0Tfrom Leagle.com
In the third case captioned DENNIS LEWIS, # B-58535, Plaintiff, v.
VIENNA CORRECTIONAL CENTER, Defendant, CASE NO. 13-CV-00696-JPG
(S.D. Ill.), Judge Gilbert found that the complaint fails to state
any cognizable claim and must be dismissed. A full-text copy of
Judge Gilbert's Decision dated Aug. 9, 2013, is available at
http://is.gd/CQEjFAfrom Leagle.com.
ASBESTOS UPDATE: "Feinstein" Suit Can Proceed to Jury Trial
-----------------------------------------------------------
In this asbestos personal injury action, defendant Ingersoll Rand
Company moves for summary judgment dismissing the complaint and
all cross-claims against it on the ground that there is no
evidence to show that plaintiffs' decedent Edward Feinstein was
actually exposed to asbestos fibers released from a product
manufactured, sold, supplied, or distributed by Ingersoll.
In a decision and order dated Aug. 5, 2013, Judge Sherry Klein
Heitler of the Supreme Court, New York County, denied the motion,
holding that Mr. Feinstein's deposition testimony in which he
identifies the Defendant's pumps and valves as a source of his
asbestos exposure is sufficient to meet the Plaintiffs' burden and
overcome summary judgment. At most, the Defendant's arguments
regarding Mr. Feinstein's inability to remember the specific
characteristics of the Ingersoll products he encountered goes to
the weight to be accorded to his testimony by the trier of fact,
Judge Heitler added.
The case is BRIAN FEINSTEIN, Individually and as Trustee of the
EDWARD FEINSTEIN LIVING TRUST, Plaintiffs, v. ARMSTRONG
INTERNATIONAL, INC., et al., Defendants, DOCKET NO. 190195/12,
MOTION SEQ. 005 (N.Y. Sup.). A full-text copy of Judge Heitler's
Decision is available at http://is.gd/r771safrom Leagle.com
ASBESTOS UPDATE: Bird Inc.'s Bid to Dismiss "Hammer" Suit Denied
----------------------------------------------------------------
Judge Sherry Klein Heitler of the Supreme Court, New York County,
entered a decision and order dated July 29, 2013, denying
defendant Bird Incorporated's motion for summary judgment
dismissing and asbestos personal injury action against it on the
ground that there is no evidence to show that plaintiff Rolf
Hammer was exposed to asbestos from a product manufactured, sold
or supplied by Bird.
Judge Heitler found that there was no documentary evidence
provided to support Bird's conclusion that its products did not
contain asbestos. Moreover, Judge Heitler said Mr. Hammer clearly
identified his exposure to Bird products at his de benne esse
deposition. Accordingly, Judge Heitler concluded that the
Plaintiffs' submissions raise material questions of fact as to Mr.
Hammer's alleged exposure to asbestos from Bird products
sufficient to preclude summary judgment.
The case is MARGARET HAMMER and ROLF HAMMER Plaintiffs, v. ALGOMA,
et al., Defendant(s), DOCKET NO. 190363/12, MOTION SEQ. NO. 002
(N.Y. Sup.). A full-text copy of Judge Heitler's Decision is
available at http://is.gd/iv0Ecofrom Leagle.com.
ASBESTOS UPDATE: Argonaut Wins 1st Round in ICSOP Insurance Suit
----------------------------------------------------------------
Plaintiff Insurance Company of the State of Pennsylvania sues to
enforce the terms of a reinsurance contract against defendant
Argonaut Insurance Company. In the reinsurance contract, Argonaut
agreed to reinsure ICSOP for a portion of an excess insurance
policy ICSOP had issued to Kaiser, which manufactured products
containing asbestos many years prior to the instant litigation.
From 1953 through 1987, Kaiser purchased primary, umbrella, and
excess insurance policy coverage from a number of insurance
companies.
Following discovery limited to Argonaut's affirmative defense of
late notice, the parties cross-moved for summary judgment on this
defense.
In an opinion and order dated Aug. 6, 2013, Judge Denise Cote of
the U.S. District Court for the Southern District of New York
granted in part Argonaut's motion.
Judge Cote identified California law as the law which will govern
this defense. According to Judge Cote, there is no material issue
of fact which precludes a finding that ICSOP breached its
contractual obligation to provide timely notice to Argonaut. The
obligation to provide notice arose no later than 2002, but ICSOP
did not provide notice until 2009. A trial will be held to
determine whether Argonaut can demonstrate that it suffered actual
and substantial prejudice from the breach, and whether ICSOP's
gross negligence or bad faith excuses Argonaut from demonstrating
prejudice.
The case is THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA,
Plaintiff, v. ARGONAUT INSURANCE COMPANY, Defendant, NO. 12 CIV.
6494 (DLC) (S.D.N.Y.). A full-text copy of Judge Cote's Decision
dated Aug. 6, 2013, is available at http://is.gd/IAByHQfrom
Leagle.com
Andrew S. Amer, Esq. -- aamer@stblaw.com -- and Rae C. Adams, Esq.
-- radams@stblaw.com -- at Simpson Thacher & Bartlett LLP, New
York, New York, for Plaintiff.
Sean Thomas Keely, Esq. -- sean.keely@hoganlovells.com -- Benjamin
J.O. Lewis, Esq. -- ben.lewis@hoganlovells.com -- and Pooja
Boisture, Esq. -- pooja.boisture@hoganlovells.com -- at Hogan
Lovells U.S. LLP, in New York, for Defendant.
ASBESTOS UPDATE: Clean Up to Blame for NBN Delays, Says Minister
----------------------------------------------------------------
Jonathan Swan, writing for Brisbane Times, reported that delays in
building the national broadband network can be blamed on work
stoppages to clean up asbestos, Broadband Minister Anthony
Albanese said.
According to the report, referring to leaked NBN Co forecasts
published in Australian Financial Review -- which suggest NBN Co
will connect about 250,000 fewer homes and businesses by June 2014
than it promised in its most recent corporate plan -- Mr Albanese
insisted the NBN was still on track to meet long-term targets.
"That report relies upon some draft information from NBN Co," Mr
Albanese told ABC radio. "What that same report says is that the
targets of 2021 completion will still be met."
Telstra recently stopped work at a number of NBN sites, after
workers found asbestos in some of the company's pits. This had
caused a "short-term delay", Mr Albanese said.
"There'll be a very short-term delay because right now as we speak
. . . in a number of places the rollout has stopped because of the
asbestos issue being dealt with," he said.
"It's important when it comes to asbestos that nothing is put
before the health of workers and the health of communities."
NBN Co, the company building the network, could make up ground and
meet its rollout targets without adding to the cost of the $37.4
billion project, Mr Albanese said.
Opposition broadband spokesman Malcolm Turnbull told Fairfax radio
that the delays were only the latest example of a troubled
construction process.
Mr Turnbull pointed to recent reports that NBN contractors were
holding out for higher fees on new contracts, which has led to
speculation that costs, as well as timelines, could blow out.
Further exacerbating NBN Co's problems was news that a major
contractor, Syntheo (a joint venture between Lend Lease and
Service Stream), would withdraw from the project once current
works were complete. It is understood the company has struggled to
turn a profit on its NBN work.
"The project is way behind," Mr Turnbull said. "There are a lot of
problems with this project."
An NBN Co spokesman said of the leaked rollout figure: "It's not a
number we recognise".
He declined to say whether the report was an accurate reflection
of NBN Co's projections.
ASBESTOS UPDATE: Toxic Fibro Left at Blue Lagoon by Travellers
--------------------------------------------------------------
Mal Tattersall, writing for MKWeb.com, reported that travelers
dumped potentially deadly asbestos at a Milton Keynes beauty spot
before council officials could evict them.
According to the report, workmen clearing the site at the Blue
Lagoon nature reserve at Water Eaton found sheets of the stuff
among piles of other rubbish.
It is thought the travellers had been paid in cash to dispose of
it 'safely' from a building site in London, the report said. But
they just threw the sheets on the back of a truck and drove it 50
miles up the motorway to Milton Keynes.
Now council chiefs plan to chase up the travellers in a bid to
claw back the GBP2,000 it cost up to clear up the mess they left
behind.
Councillor Peter Geary, cabinet member for communities, said:
"Fortunately this turned out not to be the most deadly form of
asbestos.
"But if children had jumped on the sheets and broken them, then
the spores could have caused some problems."
The travellers in about 10 caravans were only at the Blue Lagoon
site for a few days. But MKWeb published exclusive photos of the
piles of rubbish they left behind.
We told how workmen wearing big protective gloves to clear it had
to hold their noses against the appalling stench.
Fly-tipping -- much of it thought to be done by a small number of
anti-social travellers -- has increased dramatically over recent
months.
More traveller families have been moving into the city after a
crackdown on them in the neighbouring Central Bedfordshire area.
But Cllr Geary warned that the council would not allow illegal
encampments and fly-tipping. "We take a very robust attitude," he
said.
"We know who the people are behind much of the mess. We will
either make them clear it up themselves or we will do it and then
bill them for it. But the council taxpayers should not have to
pay."
The Blue Lagoon was developed into a nature reserve about 20 years
ago and is a popular picnic site with Milton Keynes families.
The 18metre deep lake is well stocked for anglers with pike,
crayfish, tench and carp.
Kingfishers, herons, great crested glebes and 16 different kinds
of dragonflies can all be seen there.
ASBESTOS UPDATE: Granddad Suffering From Lung Illness Files Suit
----------------------------------------------------------------
Nick Horner, writing for Sutton Coldfield Observer, reported that
a devastated grandfather from Erdington suffering from a chronic
lung condition caused by asbestos exposure at work is appealing
for help with his legal bid to gain justice against his former
employers.
According to the report, Herman Batchelor from Upper Witton has
launched his legal claim after being diagnosed with the incurable
respiratory disease, asbestosis, in 2010, which is caused by
inhaling asbestos dust that scars the lungs and has left him with
shortness of breath and extreme tiredness.
The 77-year-old affectionately known as Skip is looking to contact
former shop-fitting colleagues at Cadwallader Ltd, based in Perry
Barr, where he worked from 1961 to 1966 and A Edmonds & Co
Limited, in Constitution Hill, near the Jewellery Quarter where he
worked from 1967 to 1969, the report said.
"It's difficult not to be angry knowing that I have a chronic
illness caused by something I was exposed to at work that I had no
control over," Mr Batchelor, who has five children and 12
grandchildren, said. "I have a large family and love to spend time
with them, especially the little ones, but I have had to slow down
a lot as I get tired very easily."
When working for Cadwallader Mr Batchelor used to work in shops up
and down the country stripping the asbestos ceilings and pipework
lagging, the report related.
During his time with A Edmonds & Co he did a lot of shop fitting
for banks, jewellers and building societies throughout the
Birmingham area.
"I remember specifically removing asbestos ceilings and pipework
lagging while re-fitting shops for Cadwallader and A Edmonds &
Co," he said. "I was never warned of the dangers of inhaling
asbestos dust or provided with any protective equipment.
"In early 2010 I noticed I was suffering from shortness of breath
and was much more tired that I used to be. I visited my doctor who
carried out tests and when I was told the diagnosis of asbestosis
it was very hard to come to terms with."
He has instructed law firm Irwin Mitchell to pursue his claim and
expert asbestos lawyer Rajni Bharj said: "Mr Batchelor has been
left devastated by his diagnosis of asbestosis and is desperate to
see justice for the debilitating illness he must now live with for
the rest of his life.
"Whilst working as a shop fitter f he worked in extremely dusty
environments which he recalls contained asbestos dust. It was
impossible for him to not to breathe this in, especially since he
was not provided with any masks or other protective equipment.
"Employers knew the risks of using asbestos but sadly did not do
enough to protect workers from the harmful dust and fibres and too
many people are now suffering from asbestos-related diseases
decades later.
"We now hope that anyone who has any information regarding the
working practices and presence of asbestos at either company
during the time periods listed comes forward to assist with our
enquiries."
Anyone who thinks they can help is asked to contact Rajni Bharj at
Irwin Mitchell on 0121 214 6584 or email
Rajni.Bharj@irwinmitchell.com
ASBESTOS UPDATE: Burry Port Residents Call for Fibro Clearing
-------------------------------------------------------------
Llanelli Star reported that Burry Port residents have called for
asbestos to be cleared from the beach.
According to the report, Mike Washer, who lives on Ashburnham
Road, said he feared the substance -- found on roof tiles from the
former Carmarthen Bay power station -- could be dangerous. But
Carmarthenshire Council has hit back at the claims, accusing Mr
Washer of trying to create a "scare story" over the debris.
Speaking at the latest Burry Port Pact meeting, Mr Washer said the
council had insisted the asbestos had been cleaned up from the
site, which was formerly the location of the power station, the
report related.
"The report I've had from Carmarthenshire Council says it's
asbestos cement," Mr Washer said.
"They are saying it's not dangerous and the asbestos is alright as
long as nobody cuts it with an angle grinder.
"If it's dangerous in that aspect then it's dangerous altogether.
"I've had a letter saying it's been cleared. I just came from
there and it's still there. If it's been cleared, why is it still
there?"
Speaking after the meeting, Mr Washer said the substance needed to
be removed as soon as possible -- with the summer holidays now
here.
"It shouldn't be there. It's ridiculous," he added.
But responding to the comments, a council spokesman said the
material posed no risk.
He said: "Michael Washer has being trying to create a scare story
over a low grade old and weathered asbestos material that poses no
risk.
"He has raised this with the Pembrey and Burry Port Town Council
and other organisations despite having been told there is no
public risk.
"Parts of the tiles were first exposed by storm tides which have
been eroding this part of the coast over many years.
"The area where the material was first found was cordoned off but
consultants on investigating advised this was unnecessary as the
bits found, no more than two buckets full, posed no risk."
He said the tiles had been part of the power station's roof, and
were buried when it was demolished more than 20 years ago.
"All risk contaminated material was removed by the Central
Electricity Generating Board at that time," said the spokesman.
"The area concerned east of Burry Port Harbour is regularly
inspected and any of the material, if found, is collected and
disposed of."
ASBESTOS UPDATE: Mum-of-Two Fears Exposure to Deadly Dust
---------------------------------------------------------
Kate Wilson, writing for Stroud News, reported that a mother-of-
two had to wait 18 months for Stroud District Council to fix the
damp in her property despite there being a risk of exposure to
asbestos.
According to the report, Lisa-Marie Bevan, who has lived in
Coldwell Lane, King's Stanley since October 2009, discovered a
leak in the roof and subsequent damage to the ceiling in August
2011, however it was not until May this year that SDC arranged to
fix the damage.
Due to ceiling damage, Miss Bevan was also concerned that her
family could have been exposed to asbestos during the 18 months,
the report said.
"When I first moved into the property I was told by the council
that there was some asbestos in the ceiling but unless it was
damaged it was at a safe level," said Miss Bevan, who has a six-
year old daughter, Ashleigh-May, and a two-year-old son, Ayden.
"This obviously all changed when the ceiling in my hallway started
to crumble away because of the damp."
However, Stroud District Council has said the asbestos in the
textured ceiling coating was classed as 'very low risk'.
"We were left in that damp for 18 months and in that time my
daughter Ashleigh-May has been diagnosed with asthma and now needs
to use and inhaler every day as well as needing steroid shots,"
said Miss Bevan.
"I just cannot believe nothing was done sooner to fix the damage
to my home."
A spokesman for Stroud District Council said: "Regrettably it did
take us much longer than we would have liked to go out to fix Miss
Bevan's roof and unfortunately when we did it wasn't
straightforward.
"Our initial attempts to fix the holes in the roof were
unsuccessful so we ended up replacing the entire roof covering.
"Miss Bevan was concerned about damage to the asbestos in the
ceiling plaster following the water damage but we advised her that
that there was no cause for concern as the textured ceiling
coating is classed as very low risk. This type of textured finish
is commonplace in tens of thousands of homes across the country."
ASBESTOS UPDATE: Southampton Man's Death Caused by Fibro Exposure
-----------------------------------------------------------------
Southern Daily Echo reported that a former ship-building manager
from Hampshire died after being exposed to asbestos during his
career, an inquest heard.
According to the report, David Cooper, 67, died at his house in
Butts Road, Sholing, in April.
Despite having suffered from various medical problems during the
last two years of his life, the pathologist told Southampton
Coroner's Court that the pensioner's death was unconnected to
these and was a direct result of mesothelioma -- an aggressive
form of cancer caused by exposure to asbestos, the report related.
The post mortem revealed that Mr Cooper had a tumour in the lining
of his lung, which had spread to his liver, the report further
related.
Southampton coroner Keith Wiseman recorded a verdict of death from
industrial disease, the report added.
ASBESTOS UPDATE: Litigation Strategy Led to Deals at Garlock Trial
------------------------------------------------------------------
T.K. Kim, writing for Legal Newsline, reported that a California
lawyer specializing in asbestos claims took the witness stand and
offered a differing narrative behind Garlock Sealing Technologies
litigation strategy than that of witnesses who testified for the
gasket manufacturing company in the company's ongoing bankruptcy
trial.
According to the report, David McClain, a partner with the firm
Kazan, McClain Satterly Lyons Greenwood & Oberman, said that legal
strategies the company once relied on to help them win trials
became ineffective as the litigation landscape changed when other
asbestos companies began filing for bankruptcy -- something that
former Garlock asbestos lawyers testifying for the company agreed
with.
McClain, however, attributed the changing landscape that drove
Garlock's settlement costs up to changes in the law rendering most
of the defenses the company previously had ineffectual, the report
related. In California, evolving case law led to a much lower
threshold to cross for plaintiffs wanting to sue manufacturers of
asbestos products, he said, and not just because there was a
shrinking pool of defendant companies. All plaintiffs had to show
in his state was that the company's gaskets increased the risk of
developing mesothelioma, he said, which was relatively easy to do.
That alone was enough incentive for Garlock to avoid trials.
Richard Magee, the senior vice president for EnPro, Garlock's
parent company, who previously oversaw much of Garlock's asbestos
tort litigation had already testified that Garlock decided to
settle the bulk of its claims as a cost-saving measure. Magee
testified he thought the company could have won the majority of
these claims if they went to trial but decided against it because
it would have been cheaper to settle. He said the company only
went to trial with claimants who wanted more money than the group
settlements the company agreed to.
The bankruptcy trial, which began two weeks ago at the U.S.
Bankruptcy Court for the Western District of North Carolina and is
expected to last three weeks, will determine the estimated
liability of the company for current and future asbestos claims.
One of the central questions that will help establish how much
Garlock will owe the claimants revolves around whether Garlock
products, many removed decades ago, and no other sources of
asbestos, led to cases of mesothelioma.
After McClain's testimony, attorneys representing the plaintiffs
called famed asbestos lawyer Joe Rice, a man the Wall Street
Journal once referred to as an "asbestos-bar lion." On direct
examination, Rice said that Garlock's proposed plan for
instituting a trust to compensate pending and future mesothelioma
claimants was "basically forcing everyone to take $1,000 or go
home."
Headquartered in Palmyra, New York, Garlock Sealing Technologies
LLC is a unit of EnPro Industries, Inc. (NYSE: NPO). For more
than a century, Garlock has been helping customers efficiently
seal the toughest process fluids in the most demanding
applications.
On June 5, 2010, Garlock filed a voluntary Chapter 11 petition
(Bankr. W.D.N.C. Case No. 10-31607) in Charlotte, North Carolina,
to establish a trust to resolve all current and future asbestos
claims against Garlock under Section 524(g) of the U.S. Bankruptcy
Code. The Debtor estimated $500 million to $1 billion in assets
and up to $500 million in debts as of the Petition Date.
Affiliates The Anchor Packing Company and Garrison Litigation
Management Group, Ltd., also filed for bankruptcy.
Albert F. Durham, Esq., at Rayburn Cooper & Durham, P.A.,
represents the Debtor in their Chapter 11 effort. Garland S.
Cassada, Esq., at Robinson Bradshaw & Hinson, serves as counsel
for asbestos matters.
The Official Committee of Asbestos Personal Injury Claimants in
the Chapter 11 cases is represented by Travis W. Moon, Esq., at
Hamilton Moon Stephens Steele & Martin, PLLC, in Charlotte, NC,
Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, in New
York, and Trevor W. Swett III, Esq., Leslie M. Kelleher, Esq., and
Jeanna Rickards Koski, Esq., in Washington, D.C. 20005.
Joseph W. Grier, III, the Court-appointed legal representative for
future asbestos claimants, has retained A. Cotten Wright, Esq., at
Grier Furr & Crisp, PA, and Richard H. Wyron, Esq., and Jonathan
P. Guy, Esq., at Orrick, Herrington & Sutcliffe LLP, as his co-
counsel.
About 124,000 asbestos claims are pending against Garlock in state
and federal courts across the country. The Company says majority
of pending asbestos actions against it is stale and dormant --
almost 110,000 or 88% were filed more than four years ago and more
than 44,000 or 35% were filed more than 10 years ago.
Garlock said in the Disclosure Statement that all asbestos claims
must be paid in full. Full payment enables the plan to allow
continued ownership by parent EnPro Industries Inc.
The Plan will create a trust to fund payment to present and future
asbestos claimants. For currently existing claims, the trust will
have insurance proceeds plus cash from Garlock together with a
promise from EnPro to provide up to $30 million over time. For
future claims, the trust will receive $60 million from Garlock
plus a secured promise by Garlock to supply an additional
$140 million. The promise will be secured by 51% of Garlock's
stock.
ASBESTOS UPDATE: Deadly Dust Found in New Rochelle School Building
------------------------------------------------------------------
Suzanne Samin, writing for New Rochelle Daily Voice, reported that
asbestos has been found in the floor tiles of George M. Davis
Elementary School, the New Rochelle School District announced.
According to the report, in a statement on its website, the
district confirmed that "the floor tile, which is non-friable and
non-fibrous, did contain Chrysotile, a form of asbestos."
The district explained that a contractor, who was removing old
carpet and tile in principal Michael Galland's office from July 16
to 17, expressed concern about the possibility of asbestos, and
work was halted, the report related.
It resumed at Davis Elementary School in the office on July 20,
using "asbestos abatement procedures."
Air-quality testing conducted in the building came back at normal
range.
The district said it reviewed the work done at the school with
knowledgeable staff. Based on the information from those meetings,
samples of the removed floor tiles from the office on July 16 were
sent for analysis on Aug. 2.
On Aug. 5, positive results came in from the New York State
Department of Labor Asbestos Control Bureau.
The statement said the district's Medical Director, Dr. Adrienne
Weiss-Harrison, discussed the results with Environmental Health
staff at the Westchester County Department of Health. They
informed Dr. Weiss that they do not consider this incident to have
resulted in an exposure to asbestos.
"Therefore, no adverse health consequences are expected," it said.
Paul Costiglio, the district's communication and media specialist,
told The Daily Voice that a robotic call went out to the entire
Davis community twice, and letters to staff and the parents of
students who were in the building at the time are going out via
first class mail.
Principal Michael Galland and the district declined further
comment.
The Environmental Protection Agency estimates there are asbestos-
containing materials in most of the nation's primary, secondary
and charter schools.
A pamphlet for parents on the agency's website reads: "Asbestos is
most commonly used in schools as insulation and in building
materials. It has also been used in floor and ceiling tile, cement
asbestos pipe, corrugated paper pipe wrap, acoustical and
decorative insulation, pipe and boiler insulation, and spray-
applied fireproofing"
ASBESTOS UPDATE: Fibro Causes Death of Ex-Truck Driver
------------------------------------------------------
Diss Express reported that a Wortham man died because he was
exposed to asbestos during his career as a lorry driver, an
inquest has heard.
According to the report, Roland Ray, 76, of Rectory Road, died on
June 10 at the West Suffolk Hospital at Bury St Edmunds.
The retired delivery driver had been admitted to hospital four
days earlier and was moved into intensive care on the day before
he died, the report said.
The inquest at Bury St Edmunds Coroners' Court heard how Mr Ray
had worked as a driver for a builders' merchant for 38 years,
delivering and collecting goods, the report related.
Suffolk Coroner Dr Peter Dean said reports, including one written
by Mr Ray himself for a possible legal claim, indicated that he
had often been exposed to asbestos dust while handling sheets of
the material in his work, the report said.
On occasions, Mr Ray had collected materials containing asbestos
from manufacturers and delivered them directly to customers, the
report further related.
The day before he died, Mr Ray suffered respiratory failure and
was moved to intensive care but medical staff at West Suffolk
Hospital were unable to save him.
A post-mortem examination concluded that death had been due to
respiratory failure, pneumonia and mesothelioma -- a condition
linked to exposure to asbestos.
Dr Dean, said: "It is clear from the documentation that he had had
contact with asbestos during the course of his employment and that
he died as a result of mesothelioma."
The Coroner concluded the inquest by recording a verdict that Mr
Ray's death was due to an industrial disease.
ASBESTOS UPDATE: Fibro Disrupts Kempsey Hospital Upgrade
--------------------------------------------------------
Thom Klein, writing for The Macleay Argus, reported that
contractors have removed truckloads of soil from an asbestos-
contaminated zone at Kempsey District Hospital.
According to the report, early works for the $80 million upgrade
have been in progress ahead of development application approval
for the construction of new buildings at the West Kempsey site.
Workers found asbestos buried at the site, prompting its removal
and the start of remediation of the area, the report said.
Mid North Coast Local Health District chief executive Stewart
Dowrick reassured the community there had been no threat to public
health, the report related.
"The removal of the soil is being carried out by the licensed
contractor," he said.
"Monitoring will continue throughout the remediation process and
to date, no airborne asbestos particles have been detected at the
site."
Remediation work is expected to take two weeks, and will be funded
from the existing upgrade budget.
"During the removal process personal protective equipment will be
worn by the contractors within the demolition zone and air
monitoring will be undertaken," Mr Dowrick said.
MNC LHD has notified NSW Environmental Protection Authority (EPA),
Workcover and Kempsey Shire Council of the discovery of the
asbestos.
Meanwhile, Andrew Stoner has welcomed the submission of a DA to
the NSW Department of Planning and Infrastructure.
"The submittal of the State significant Development Application
means the next steps can soon be taken for this important project
for the Kempsey district," the Deputy Premier and Oxley MP said.
"The main construction works are scheduled to commence in early
2014 and will include a new hospital building towards the middle
of the existing site, refurbishment of vacated and existing spaces
and connections between new and existing facilities.
"The scope of the redevelopment includes service priorities such
as a new main entrance and front of house services, and a new and
expanded emergency department.
"A new emergency medical unit and medical day stay unit will mean
patients get the very best care."
ASBESTOS UPDATE: Lima Man Pleads Guilty to Botching Fibro Removal
-----------------------------------------------------------------
ABC 22 reported that Lamont P. Pryor, 47, of Lima, Ohio pleaded
guilty in U.S. District Court to violating the Clean Air Act in
connection with his company's handling of asbestos during the
demolition of the former Piqua Medical Center in 2008.
"The dangers of improperly handled asbestos are well-known and
well documented," U.S. Attorney Carter M. Stewart said, the report
related. "Knowingly failing to handle the material properly is a
crime and must be punished."
According to court documents, Pryor and his company, Avalon
Commonwealth Inc., removed scrap metal from the hospital as part
of the demolition process, the report said. The scrap metal was
removed and sold, but the rest of the demolition debris, including
friable asbestos, was piled in areas around the hospital, exposed
to the wind and elements.
According to prosecutors, Pryor knew he was not supposed to leave
the friable asbestos outside the hospital, exposed to the
elements, but instead was supposed to take the asbestos to a
proper waste disposal facility.
Stewart said a representative of the Regional Air Pollution
Control Agency, the local air pollution control agency, inspected
the site in December 2008, saw the damaged asbestos and asked that
demolition be halted while the investigation took place.
"This defendant put his workers and the residents of a Piqua
neighborhood at risk of asbestos exposure just to cut corners,"
Attorney General Mike DeWine said. "We cannot tolerate a knowing
choice to violate the law and risk the health of Ohio families,
and our Environmental Enforcement Unit will continue to
investigate criminal environmental activity within the state."
Randall Ashe, Special Agent in Charge of EPA's criminal
enforcement program in Ohio, said there is no safe level of
exposure to asbestos
"Despite knowing that the Piqua Hospital contained friable
asbestos, the defendant failed to notify authorities before
demolition as required by law nor did he employ qualified workers
to remove it legally and safely," Ashe said. "As a result,
asbestos was broken up and piled in areas around the hospital,
threatening the environment and jeopardizing the safety of the
general public.
Pryor pleaded guilty to three counts of violating the asbestos
removal provisions of the Clean Air Act. The plea agreement
includes an agreed-to sentence of 13 months in prison. The court
will review the terms of the agreement before determining whether
or not to accept all the terms, including the sentence.
ASBESTOS UPDATE: MCCAA Fibro Ceiling Removal Scheduled
------------------------------------------------------
The Malta Independent reported that the asbestos ceiling adjacent
to the Consumer Affairs Authority building will be removed while
employees will be on leave, taking training outside the building
or on tele-working.
According to the report, speaking at a press conference on a
different subject, held at the MCCAA building, chairman Marcel
Pizzuto said all precautions are being taken and the offices will
be well inspected during works and once these are completed,
before employees re-enter the building.
It was explained that a Mizzi Estates contractor has drawn up a
protocol of works and this was approved by the Occupational Health
and Safety Authority, the report said. Buildings adjacent to that
of the MCCAA where the air quality may be affected were also
considered.
Works are planned to take one week during which regular air
testing will take place and OHSA officers will be on site, the
report related. The ceiling is to be sprayed before it is
dismantled and placed in a container for immediate shipping.
While works are ongoing, experts must assess the situation before
giving the go-ahead for works to continue the next day. This
weekend, all offices will be sealed and once works are completed,
air testing will take place.
An environmental clean-up will also be carried out and all risks
are to be eliminated before employees re-enter the building.
ASBESTOS UPDATE: Fibro Scare at Binghamton Elementary School
------------------------------------------------------------
Matt Hicks, writing for WBMG.com, reported that Binghamton school
officials are taking action after asbestos is disturbed at one
elementary school.
According to the report, Calvin Coolidge Elementary has been shut
down and summer programs there have been relocated after the
incidental asbestos disturbance in a crawl space in the basement,
according to a press release from the school district.
Testing is also being performed at Theodore Elementary School,
where educational materials had been taken to from Coolidge.
School officials will hold a special meeting to consider a
resolution declaring an emergency, which would expedite the
cleanup process, the report related.
It is not know at this time how long Coolidge Elementary will
remain closed, the report said.
ASBESTOS UPDATE: Fibro Set Back at Wendouree Archery Club
---------------------------------------------------------
Rachel Afflick, writing for The Courier, reported the campaign by
a Ballarat archer to make the national team vying for a world
title in France is in jeopardy after the asbestos-riddled ceiling
at his training facility fell in recently.
According to the report, Geoff Rogers and fellow members of the
Wendouree Archery Club members have been banned from their only
indoor training range, after the ceiling of the Ballarat City
Council-owned building collapsed.
Mr Rogers, the Australian state indoor archery title holder, said
club representatives met several times with the council since it
closed the building two weeks ago at the Ballarat Airport, the
report related. He said the indoor range had to be shut for
safety reasons, after the asbestos ceiling dropped in several
places.
"All they've decided at our meetings has been to have another
meeting," Mr Rogers said.
"I know archery is low on the totem pole of funding for sports
facilities by the council, but all we need is the facility to be
made safe so we can use it.
"At the moment we're just in limbo."
Mr Rogers claimed his first Australian indoor archery title and
broke an Australian masters' record. He now has the potential to
make the Australian team, but with nowhere to train, his campaign
is in jeopardy. He believes all the archery range needs is for a
qualified asbestos tradesperson to come in and repair the damage.
Mr Rogers said Wendouree Archery Club had more than 50 members and
was the oldest continually running archery club in Australia. It
also opens its facilities to school groups for activities.
Despite this, the club received very little funding for their
facilities from the council, Mr Rogers said.
Mr Rogers said the club had an outdoor archery range but it was
unsuitable to use in the winter months.
"I would have thought getting it repaired was a matter of urgency,
with potential asbestos exposure," he said.
"We've been denied access ever since the council had a look two
weeks ago."
The council's general manager of city infrastructure Eric Braslis
said the council had not closed the building, but there were some
issues that needed to be addressed.
"It is our obligation to ensure that the club is able to continue
to use their facilities and we will continue to work with the club
on a solution," he said.
ASBESTOS UPDATE: WHO Study Shows Millions of Life-Years Lost
------------------------------------------------------------
Lawyersandsettlements.com reported that a new analysis of data
from the World Health Organization, shows that when the problem of
mesothelioma and asbestosis, the two most prominent asbestos-
related diseases, is analyzed in terms of life years lost, the
burden is "substantial".
According to the report, researchers in Japan and Indonesia found
that a total of nearly 3 million potential life years have been
sacrificed to these diseases by more than 141,000 people in dozens
of countries. According to their WHO data analysis, 128,015 people
died of mesothelioma in 82 countries between 1994 and 2010. During
the same period, 13,885 people died of asbestosis in 55 countries.
Mesothelioma is a deadly malignancy that spreads across internal
membranes, inhibiting organ function and often, eventually,
invading the organs themselves. Asbestosis, also known as
pulmonary fibrosis, is a chronic inflammation in the lungs that
causes shortness of breath and chest pain and can be fatal. Both
mesothelioma and asbestosis are triggered by prolonged or intense
exposure to asbestos fibers and can develop decades after
exposure.
According to the new study, which appears in the June 12, 2013
issue of the American Journal of Industrial Medicine, people who
died of mesothelioma lost a total of 2.81 million potential years
of life. That equates to an average of 17 years lost for each
mesothelioma patient. The 13,885 people who died of asbestosis
lost an average of 13 years of life each, for a total of 180,000
years. The researchers call the Potential Years of Life Lost
(PYLL) measurement a "well-established but rather under-utilized"
tool for assessing global disease burden and conclude that "The
future burden of asbestos-related diseases can be eliminated by
stopping the use of asbestos."
Asbestos has been linked to mesothelioma, asbestosis, lung cancer,
emphysema, pleural plaques and autoimmune diseases for more than
50 years. Despite the mounting worldwide death toll, many
countries continue to mine, import and use asbestos in a range of
industrial applications. Asbestos was once prized as an insulator
and building material because of its resistance to heat, fire and
corrosion. A number of third-world countries still use asbestos
because it is inexpensive.
ASBESTOS UPDATE: 59 Corporations Face Exposure Lawsuit in Missouri
------------------------------------------------------------------
Kelly Holleran, writing for The Madison-St. Clair Record, reported
that a Missouri couple has filed an asbestos complaint alleging 59
defendant companies, through their negligence, have caused Janis
M. Whiting to develop mesothelioma
According to the report, Janis Whiting and James B. Whiting allege
that Janis was exposed to asbestos-containing products throughout
her career as an operating technician in the US Force from 1967
until 1968, at University of Missouri Hospital from 1968 until
1979, at Community Hospital and Pinellas County Hospital from 1970
until the mid-1970s and at Community Hospital of New York from the
mid-1970s until 1979. She also worked as a photographer at PCA
from 1979 until 1985, as a hair dresser in 1982, as an operating
technician at Moberly Regional Hospital from the mid-1980s through
1987, as a truck driver at Watkins Motor Line from 1987 until
2010, as a laborer at Moberly Surgical Center in 2011 and as a
truck driver at R&R Trucking from 2012 until 2013.
The Whitings claim that the defendants should have known of the
harmful effects of asbestos, but failed to exercise reasonable
care and caution for the plaintiff's safety, the report related.
According to their lawsuit, it is as a result of her asbestos-
related diseases that Janis M. Whiting is now disabled and
disfigured, has incurred medical costs and suffered great physical
pain and mental anguish and is prevented from pursuing her normal
course of employment. This has resulted in her having lost large
sums of money that would have accrued to her.
In their 10-count complaint, the Whitings are seeking a judgment
of more than $50,000, economic damages of more than $200,000,
punitive and exemplary damages of more than $100,000, compensatory
damages of more than $150,000, punitive damages in an amount
sufficient to punish the defendants, plus costs and other relief
the court deems just.
St. Clair County Circuit Court case numbers: 13-L-299.
ASBESTOS UPDATE: Former Worker Sues Union Pacific for Negligence
----------------------------------------------------------------
The Madison-St. Clair Record reported that Edmund Borgman, a
former railroad worker with Union Pacific Railroad Company, has
filed an asbestos lawsuit naming the railway as a defendant, and
alleging it is through the company's negligence that he has
developed his lung cancer.
According to the report, specifically, Borgman alleges he was
exposed to various toxic substances, including asbestos,
throughout his career from 1959 until 1968 in the clerical
department at Union Pacific. In turn, he developed lung cancer.
Due to his disease, Borgman has suffered great pain and
disability, endured mental anguish and extreme nervousness and
experienced disability, the complaint states, the report related.
Borgman claims Union Pacific negligently failed to provide him
with a safe place to work, failed to provide him with safe
equipment, exposed him to various toxic substances, failed to warn
him of the dangers of the substances and allowed unsafe work
practices to become common, the report added.
ASBESTOS UPDATE: Mud Drilling Exposes Workers to Health Problems
----------------------------------------------------------------
Heidi Turner, writing for Lawyersandsettlements.com, reported one
of the issues faced by many a mud engineer is the presense of
asbestos in the mud. Despite working with a carcinogen, many of
the people who worked with drilling mud did so without any
protective gear, greatly increasing the chance of their developing
asbestosis, lung cancer or mesothelioma.
According to the report, asbestos is used in a wide range of
products, and workers in many industries -- including
construction, oil and mechanical -- have been exposed to the
carcinogen. Drilling mud is used during oil drilling to flush
debris. Mud engineers are the people responsible for preparing the
mud, including mixing material. Because asbestos was mixed in with
drilling mud, these mud engineers were repeatedly and routinely
exposed to asbestos, without the proper safety gear in place and
without any knowledge of what they were exposing their bodies to.
Some mud engineers say they often opened sacks of asbestos in
small rooms, and likely breathed it in when the particles were
airborne, the report related. Employees may have been exposed to
asbestos over the course of decades. Unfortunately, it can also
take decades for symptoms of asbestos-related health problems to
arise, and once they do, there is very little that can be done for
the patient.
According to information from the University of Wyoming, asbestos
is used because it is abundant, inexpensive, strong, durable,
flexible and resistant to chemicals. It has been used in a wide
range of products, including insulation, roofing tar and cement
pipes.
If asbestos remains intact, sealed and undisturbed, it is not a
health risk. But when the fibers are air-borne, they can be
inhaled by people in the vicinity, entering the person's lungs and
possibly causing serious health problems.
Lawsuits have been filed against some of the companies responsible
for asbestos drilling mud. Some of those lawsuits have resulted in
verdicts in the plaintiff's favor, although one landmark award of
$322 million was overturned by the judge and later came back with
a verdict for the defense.
ASBESTOS UPDATE: Toxic Dust Delays Indy Downtown Rejunevation Plan
------------------------------------------------------------------
Pat Guth, writing for Mesothelioma.com, reported that the re-birth
of downtown Gary, Indiana is going to have to wait a little
longer. Though hundreds of thousands of dollars was already spent
to remove asbestos from a crumbling 14-story former hotel,
officials now say that there's more asbestos remaining inside the
old Sheraton than they had thought, delaying the project and
angering officials who thought the eyesore would be demolished in
its entirety very shortly.
An article in the Times of Northwest Indiana reports that the
demolition of the once-thriving Sheraton Hotel now faces a major
roadblock caused by the presence of a large amount of asbestos
material. Gary, Indiana Mayor Karen Freeman-Wilson had hoped the
building would be gone shortly and dubbed it's removal the first
step in rejuvenating downtown Gary, which has been plagued by
urban blight.
Questions have been raised about the exorbitant amount of grant
money already spent five years ago to remove asbestos insulation,
which was crumbling and had become quite dangerous. At that time,
inspectors for the Indiana Department of Environmental Management
(IDEM) reported that about 98 percent of the carcinogenic material
had been removed.
Now, however, a recent inspection by James Harless, vice president
and principal of the Soil and Material Engineers Inc. of Plymouth,
Massachusetts, reports that "more than 60,000 square feet of
asbestos remains embedded in concrete ceiling seams, textured
paint on exterior walls, floor tiles, electric fixtures, window
frames and the bo iler fireproofing."
Harless estimated the cost of removing or sheathing the remaining
asbestos to be as high as $1.3 million, a number that makes
officials unhappy, especially since they believed the first
contractor had completed the majority of the abatement.
"Our guy was there several times and checked it out," said IDEM
spokesperson, Dan Goldblatt. "When IDEM signed off on its
inspection, the building and contractor were in compliance.
"I know that 98 percent was quoted around. That may have been the
case for the top floors, but likely not the amount cleared from
the whole building. Whether they knew at the time that there was
more asbestos than money to remove it, I don't know. IDEM was just
there to make sure it was done properly," Goldblatt said.
Harless defended the originally contractor, noting that they
purposely left an asbestos coating on the exterior and on the
five-story parking garage because the structure was thought to be
stable at the time. That's no longer the case, say the experts.
"We found it's too friable to leave on," Harless said. "That's got
to come off."
The city has asked the EPA for assistance with the project and
awaits an answer.
ASBESTOS UPDATE: Assessment of Falmouth Hall Finds Fibro, Molds
---------------------------------------------------------------
Kristen Griffin, writing for Mesothelioma.com, reported that a
study conducted on behalf of Falmouth, Maine uncovered a litany of
potentially dangerous environmental, health and safety concerns in
the area's Town Hall including mold spores, asbestos and rodent
feces. Based off of the conclusions from the study, a
recommendation of nearly $1 million worth of updates and
renovations now sits with Falmouth's officials.
According to the report, the study, conducted by Oak Point
Associates, also found deficiencies in the building's energy usage
and appearance, as well as serious concerns over the structural
integrity. Despite the variety of issues pertaining to the Town
Hall, the Falmouth Town Council is pushing to address the areas
that pose a threat to the health and safety of the community.
Though not entirely dismissing the comprehensive recommendations
proposed by Oak Point Associates, Falmouth officials will review
each area of need and address areas that are considered to be
primary.
An area that the Town Council would like to address first pertains
to the indoor air quality, the report said. According to the
study, the crawl space in the Falmouth Town Hall has "elevated
levels of mold spore activity" that is contaminating the air. The
vents that directly link to the crawl space have been since
closed. Also threatening the indoor air quality is the discovery
of ceiling tiles laden with condensation, rodent feces and urine.
Breathing in air that is contaminated with mold and animal
droppings is detrimental to the overall health of those who work
in the building. Chiefly, repeated exposure to this contaminated
air can lead to serious medical conditions including lung
infections, bronchitis and, in some cases, triggering a severe
allergic reaction.
A significant portion of the nearly $1 million in recommended
renovations is devoted to replacing and updating the exterior
siding. The siding is a combination of wooden clapboards -- a
common feature of buildings of the age -- and asbestos siding, the
report noted. Asbestos is a naturally-occurring mineral often used
in building and construction supplies. Classified as a carcinogen,
asbestos exposure can lead to mesothelioma cancer, lung cancer and
asbestosis.
For Falmouth Town officials, discussing whether to implement all
of or part of the recommendations will resume in the fall.
ASBESTOS UPDATE: Construction Crew at School Worry About Fibro
--------------------------------------------------------------
Fox 4 News reported that at Tice Grammar School in Fort Myers,
construction crews have spent months remodeling the 86-year-old
historic structure.
"It's been a good experience," said an electrician on the site,
the report related. But some workers worry their health is at
risk. Several sent photos of a section of the hallway basement
cordoned off. A sign says "Danger Asbestos."
"They spray painted it a red color so that none of the workers
drill a hole or disturb it," said the same electrician, who asked
that his identity not be disclosed for fear of losing his job, the
report said. He says crews were told the building was asbestos-
free.
"And now they're going back and having to cut out asbestos while
there are workers in the building?" he questioned.
The Lee County School District wouldn't confirm or deny there's
asbestos at the school. But in an e-mail a spokesperson says older
schools have some asbestos and that it's always removed when any
portion of a school is remodeled. The district says materials are
removed according to Department of Environmental Protection
standards.
"The dust gets on your clothes, gets on your shoes it gets in your
hair," said the electrician.
Nearby Tice Storage employees aren't convinced its safe. "I'm
breathing this stuff in, it's ridiculous," said Teresa Melock, the
resident manager. "I shouldn't have to fear for my safety and my
health."
But the school district says not to worry. It cites OSHA
inspections on July 24 and July 31, during which no issues were
found.
"I don't believe it's a safe work area," concluded the electrician
and others Fox 4 spoke with off-camera.
The school district says by law, a certified asbestos inspector
investigates every school for the substance. That person makes
sure when any of the substance is found, that it's properly
contained.
ASBESTOS UPDATE: Mass. Town Offices Must Undergo Abatement
----------------------------------------------------------
Kristen Griffin, writing for Mesothelioma.com, reported that in
what may seem like a backwards move to some, the town of Berkley,
located in Massachusetts, must spend $100,000 to safely remove
asbestos materials from the town offices before moving forward
with the scheduled demolition. To keep construction workers and
the community safe, and to follow state and federal regulations,
the town must safely remove the toxic material.
According to a recent environmental assessment of the building,
virtually every room and material contains some form of asbestos,
the report related. In short, the asbestos is "everywhere," said
Paul Modlowski, executive secretary for Berkley.
The abundance of the asbestos is not all that surprising
considering the vintage of the building, the report said. Before
the sweeping bans on the use and application of asbestos, the
material could be found in a variety of products. Namely found in
building and plumbing materials, asbestos was used widely in
products for insulation and heat resistance. Plumbing insulation,
floor and ceiling tiles, siding and drywall are common products
that include some form of asbestos.
The danger with asbestos -- and the main reason for the widespread
ban on its use -- is that it is a carcinogen or a cancer-causing
agent. Exposure to asbestos can lead to lung cancer, asbestosis
and mesothelioma, a rare form of cancer that can affect the lining
of the lungs, heart or stomach. Properly removing or abating the
asbestos ensures that the material does not pose a health threat.
Improper removal of asbestos can lead to contamination.
Due to the current condition of the town offices, parts have
already been condemned. Already in the preliminary stages, Berkley
will put out a request for proposals or RFPs in the next two weeks
for contractors to safely abate the asbestos, remove any other
environmentally hazardous materials and generally prepare the
building to be demolished. The town will ask for bids for the new
buildings in January 2014.
Replacing the deteriorating Berkley town offices will be a $3.5
million town hall. Construction on the new facility is tentatively
scheduled to begin in 2014 and will take over a year to complete.
ASBESTOS UPDATE: School Caretaker's Death Linked to Toxic Dust
--------------------------------------------------------------
Megi Rychlikova, writing for The York Press, reported that a
retired school caretaker died of lung cancer caused by the
asbestos he inhaled more than 40 years before his death while
working at York Carriageworks, an inquest was told.
According to the report, Raymond Laws, who was 73 when he died at
St Leonard's Hospice on February 23, spent all his life in York.
In a statement read at the inquest at New Earswick Folk Hall, his
relative, David Laws, said he completed a six-year apprenticeship
at what was then British Railways Carriageworks after leaving
school at 15, the report related.
He worked there for a few years after training before moving to a
glassworks, the report said. During his time there, asbestos was
used as soundproofing in the carriages and the floors were very
dusty.
Mr Laws, of Rosedale Avenue, Acomb, also worked as a handyman and
for 20 years as a school caretaker, the report added. He smoked
for most of his life until he gave it up more than 12 years before
his death.
Recording a conclusion that Mr Laws died of industrial disease,
York coroner Donald Coverdale said the presence of asbestos at the
carriageworks was well known and that, over a period of many
years, many people in York had died of industrial disease
associated with asbestos.
He had no doubt that Mr Laws had been exposed to asbestos and that
that led to the lung cancer that caused his death.
ASBESTOS UPDATE: Witnesses Present Divergent Figures for Garlock
----------------------------------------------------------------
T.K. Kim, writing for Legal Newsline, reported that attorneys
representing claimants suing Garlock Sealing Technologies for
asbestos exposure presented a second consultant who estimated the
company would need to devote $1,293 billion to a trust to settle
pending and future claims against the company, a figure a Nobel
prize winning economist testified was unreliable because of what
he said was questionable methodology.
According to the report, Francine Rabinovitz, president of
Hamilton, Rabinovitz & Associates, said she relied on the past
five years of asbestos litigation data to come up with the figure.
A Garlock consultant previously testified the company would need
to devote a significantly less amount -- $270 million. Rabinovitz
said she arrived at her figure by estimating the size of the
population exposed to asbestos, the proportions of persons exposed
to asbestos who develop mesothelioma, and the cost of defending
asbestos claims among other factors.
Rabinovitz's figure comes close to the estimate of Mark Peterson,
a lawyer with a Ph.D. in social psychology who does estimations
for trusts and was also called to offer his estimation in court by
claimant attorneys, the report related. Peterson came up with a
figure of $1.365 billion to cover liability Garlock would likely
face from people who have pending claims against the company and
future claimants who will develop cases of mesothelioma in the
coming years.
Judge George Hodges will ultimately decide how much money the
company will need to devote to escape bankruptcy, the report
added. The bankruptcy trial, which is expected to end later this
month, will determine the estimated liability of the company for
current and future asbestos claims.
Rabinovitz criticized the $270 million figure arrived at by
Charles Bates, chairman of the economic consulting firm Bates
White LLC and former assistant professor in the economics
department at Johns Hopkins University. Bates estimated $25
million was the net present value enough to sufficiently cover
payouts for pending asbestos claims with $100 million being the
net present value to cover claims by future mesothelioma victims.
He said he arrived at that figure by taking into account factors
such as the estimated number of future claimants. He said he used
an epidemiological model to estimate how many more mesothelioma
claims are likely to arise.
Rabinovitz said Bates' figure and report was unreliable because it
employed an unaccepted methodology. She said Bates' report
improperly excluded pending claims from his estimation and that
the rates he used for his calculation were not consistent. She
also criticized his decision not to include settled but unpaid
claims in his figure.
Following Rabinovitz and Peterson's testimony, attorneys for
Garlock called University of Chicago professor James Heckman,
winner of the Nobel Prize in economics in the year 2000. Heckman,
who was testifying at a billing rate of $2,300 an hour, challenged
Rabinovitz and Peterson's respective estimation figures saying
they were unreliable because the figures were based on only five
years of recent data. He said using such a small sample while
ignoring more historical trends was not "sound" because it assumes
a stability that "doesn't exist" and is not reflected in the data.
Heckman also criticized their respective reports for not using
"scientific methodology," saying their reports do not meet
scientific standards. He also criticized their reports for not
having some measure of variability, something he said an
undergraduate taking a first-level statistics course would know
was a necessary component for a reliable estimation.
On cross examination, Heckman acknowledged he was not giving an
opinion on the actual figures the consultants arrived at, only on
their methodology saying they could be "underestimates" or could
be "overestimates." He also acknowledged that he was only
evaluating Rabinovitz and Peterson's methodology but offered no
critique of Bates report.
Headquartered in Palmyra, New York, Garlock Sealing Technologies
LLC is a unit of EnPro Industries, Inc. (NYSE: NPO). For more
than a century, Garlock has been helping customers efficiently
seal the toughest process fluids in the most demanding
applications.
On June 5, 2010, Garlock filed a voluntary Chapter 11 petition
(Bankr. W.D.N.C. Case No. 10-31607) in Charlotte, North Carolina,
to establish a trust to resolve all current and future asbestos
claims against Garlock under Section 524(g) of the U.S. Bankruptcy
Code. The Debtor estimated $500 million to $1 billion in assets
and up to $500 million in debts as of the Petition Date.
Affiliates The Anchor Packing Company and Garrison Litigation
Management Group, Ltd., also filed for bankruptcy.
Albert F. Durham, Esq., at Rayburn Cooper & Durham, P.A.,
represents the Debtor in their Chapter 11 effort. Garland S.
Cassada, Esq., at Robinson Bradshaw & Hinson, serves as counsel
for asbestos matters.
The Official Committee of Asbestos Personal Injury Claimants in
the Chapter 11 cases is represented by Travis W. Moon, Esq., at
Hamilton Moon Stephens Steele & Martin, PLLC, in Charlotte, NC,
Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, in New
York, and Trevor W. Swett III, Esq., Leslie M. Kelleher, Esq., and
Jeanna Rickards Koski, Esq., in Washington, D.C. 20005.
Joseph W. Grier, III, the Court-appointed legal representative for
future asbestos claimants, has retained A. Cotten Wright, Esq., at
Grier Furr & Crisp, PA, and Richard H. Wyron, Esq., and Jonathan
P. Guy, Esq., at Orrick, Herrington & Sutcliffe LLP, as his co-
counsel.
About 124,000 asbestos claims are pending against Garlock in state
and federal courts across the country. The Company says majority
of pending asbestos actions against it is stale and dormant --
almost 110,000 or 88% were filed more than four years ago and more
than 44,000 or 35% were filed more than 10 years ago.
Garlock said in the Disclosure Statement that all asbestos claims
must be paid in full. Full payment enables the plan to allow
continued ownership by parent EnPro Industries Inc.
The Plan will create a trust to fund payment to present and future
asbestos claimants. For currently existing claims, the trust will
have insurance proceeds plus cash from Garlock together with a
promise from EnPro to provide up to $30 million over time. For
future claims, the trust will receive $60 million from Garlock
plus a secured promise by Garlock to supply an additional
$140 million. The promise will be secured by 51% of Garlock's
stock.
ASBESTOS UPDATE: Meso Victims Center Urges Families to Call
-----------------------------------------------------------
The Mesothelioma Victims Center says, "When it comes financial
compensation for mesothelioma, we instantly suggest the names of
some of the nation's most skilled mesothelioma attorneys, who
consistently produce the best compensation results for their
clients, and at the same time we want to be the best resource for
a diagnosed victim, or their family members when it comes to
treatment options, because we do not want one diagnosed victim of
mesthelioma to get left behind. US Navy Veterans, or individuals
who have been diagnosed mesothelioma, or their family members can
call the Mesothelioma Victims Center anytime at 866-714-6466, for
what really is a mesothelioma victims service, that has no equal.
The Mesothelioma Victims Center says, "We have two passions when
it comes to mesothelioma, the first being every diagnosed victim
of mesothelioma in the United States has instant access to the
most skilled, and experienced mesothelioma attorneys in the
nation, with the goal being the diagnosed victim gets the best
possible mesothelioma compensation, which really could be hundreds
of thousands, or millions of dollars. Our second passion is making
certain every diagnosed victim of mesothelioma gets extremely
honest advice about mesothelioma treatment options from some of
the nation's top mesothelioma treatment physicians-with the
emphasis on keeping the treatment local, or regional."
According to the US Centers for Disease Control of the 2500 to
3000 US citizens who will be diagnosed with mesothelioma this
year, about one third are Veterans of the US Navy, because during
the 1950's, 1960's, 1970's, and 1980's, most US Navy ships were
loaded with asbestos, in order to contain, or control shipboard
fires. Mesothelioma is the only type of cancer that is 100%
directly attributable to exposure to asbestos. For more
information US Navy Veterans who are victims of mesothelioma,
individuals diagnosed with mesothelioma, because of workplace
exposure, or their family members are encouraged to contact the
Mesothelioma Victims Center anytime at 866-714-6466, to take
advantage of their unsurpassed services.
The Mesothelioma Victims Center is saying, "While the states with
the highest incidence of mesothelioma include New Jersey,
Pennsylvania, West Virginia, Maine, Washington, or Wyoming, based
on the phone calls we receive diagnosed victims of mesothelioma
are in every state including California, New York, Massachusetts,
Vermont, Delaware, Connecticut, Rhode Island, Maryland, Virginia,
North Carolina, Florida, Tennessee, Georgia, Texas, Oklahoma,
Missouri, Ohio, Michigan, Indiana, Illinois, Wisconsin, Minnesota,
Iowa, Nebraska, Kansas, North Dakota, Colorado, New Mexico,
Arizona, Utah, Idaho, and Montana."
The Mesothelioma Victims Center's free services are available to
all US citizens. Aside from US Navy Veterans, other high risk
groups for asbestos exposure, and mesothelioma include shipyard,
power plant, chemical manufacturing plant, steel mill,
manufacturing facility, or oil refinery workers, plumbers,
electricians, carpenters, welders, insulators, county, or city
municipal water district workers, miners, demolition construction
workers, railroad workers, or auto brake technicians, especially
if the diagnosed victim was exposed to asbestos in the 1950's,
1960's, 1970's, or 1980's. The Mesothelioma Victims Center says,
"We are becoming increasingly worried that because of age, or poor
advice, many families never even contact a law firm related to a
loved one's diagnosis of mesothelioma. We are on a mission to see
to it that all US victims of mesothelioma get to the nation's most
skilled mesothelioma attorneys, because we firmly believe all
victims of mesothelioma should be compensated-because of their
exposure to asbestos. If you call us at 866-714-6466, we will see
to it that you instantly have the names, and specific contacts of
the best mesothelioma law firms, and attorneys in the nation. No
other group in the US offers this vital service-don't get
shortchanged."
For more information about a rare form of cancer caused by
exposure to asbestos called mesothelioma, please visit the US
Centers. For Disease Control's web site:
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5815a3.htm
ASBESTOS UPDATE: Piergori Begins Work to Convert Westfield Bldg.
----------------------------------------------------------------
Dave O'Connor, writing for The Post-Journal, reported that
preliminary work to convert the former Westfield Exempt Volunteer
hall at 75 Bourne St. into a food manufacturing facility continued
with asbestos removal.
According to the report, a workman for the contractor, H.H. Rauh
Contracting Co. LLC of Ashville, said Rae Foods, which plans to
make pierogies in the building, hired the company to safely remove
the asbestos, mainly found in the old floor tiles there.
Rachelle McFeely, Rae Foods president, said from her North East,
Pa., home, that she expects the removal work to be complete this
week, the report added.
"It (the asbestos) is very light, but we must comply with
regulations," she said.
McFeely's business partner is her mom, Beverly Braley who is the
company's vice president.
McFeely confirmed Rae Foods will invest $2.5 million in the
Westfield operation as reported by state Sen. Catharine Young, R-
I-C, Olean.
"It's actually a little more than that," McFeely said.
She confirmed the $2.5 million figure includes both loans and
company capital.
"We put in a very substantial amount," she said.
Pierogies produced at the plant will be marketed under the
Nowinski brand and available in six varieties, according to
McFeely.
Nowinski is now headquartered in New Castle, Pa. Rae Foods bought
the business and will move much of the equipment to Westfield,
McFeely said.
Presently, the Nowinski brand is found in a very limited area, but
McFeely said Rae Foods plans to greatly increase the brands
availability to finally include the entire continental United
States.
"We're going to increase our customer base," she forecast.
Asked about competition with national brands like "Mrs T's,"
McFeely said Nowinski looks forward to sharing the pierogi market
with other makers.
"Our product is different," she said, and will be competing in
what she called "the higher end market" including restaurants and
delis.
McFeely said she and her mom have years of experience in the food
business, and both last worked for JTM Foods in Erie, Pa.
ASBESTOS UPDATE: Firm to Raze Old JFS Building
----------------------------------------------
Tom Giambroni, writing for Salem News, reported that someone has
been found to demolish the old county welfare office for only
$10,000, but Columbiana County commissioners were worried the
recent theft of $30,000 in copper from the building might drive up
the cost.
According to the report, Commissioners voted to hire Russ James
Contracting, a Zanesville company that specializes in tearing down
buildings for a minimal fee in exchange for what it can salvage.
The three-story former county Department of Job and Family
Services building on Nelson Avenue has been vacant since April
2012, when the JFS moved to the new county government services
complex off state Route 45, the report related. Constructed in
the 1950s, the building had served as the JFS' home since the
1970s.
Commissioners originally balked at demolishing the building after
being told it would cost $150,000 to $250,000 to do so and remove
the asbestos inside, the report said. They changed their mind
after finding James and learning it would cost only $24,460 to
remove the asbestos, which has already been done.
Commission Chairman Mike Halleck said the reason James agreed to
raze the building for no more than $10,000 was he intended to sell
the copper plumbing and wiring and whatever else he could salvage,
the report added.
"He gets to keep what he can salvage. That's why the price is so
low," Halleck said.
During an inspection of the building with James, commissioners
discovered thieves had broken in and removed an estimated $30,000
in copper. They were concerned the loss of potential scrap revenue
might nix the deal with James.
"Obviously, he had some concerns, but in the end (James) was a man
of his word" and agreed to stand by the original deal, despite the
change in circumstances, Halleck said.
When asked when the break-in occurred, Halleck estimated it must
have been sometime in the past two months. "Who knows? We haven't
been going over there everyday," he said.
As part of the deal, James will also demolish two small
dilapidated garages located on the County Home property west of
town in Center
Township. He will also dispose of the debris at both locations.
Commissioners plan to move quickly with the JFS demolition. "I
expect by the end of the month you'll see a vacant lot," Halleck
said.
Although commissioners have no specific plans for property yet,
they have talked about constructing a new county office complex
that would house the county development office and the county port
authority.
ASBESTOS UPDATE: Toxic Fibers Could Be Released by Mining Penokees
------------------------------------------------------------------
Mike Simonson, writing for AshlandWi.com, reported that the DNR
says it is concerned asbestos-like fibers could be released from
iron ore mining or sampling in northern Wisconsin.
According to the report, the focus is on a naturally occurring
mineral called grunerite (pronounced groon-er-rite). Department of
Natural Resources Hydrogeologist Larry Lynch says grunerite is
common in Michigan's Upper Peninsula, Minnesota's Iron Range and
northern Wisconsin's Penokee Range.
"It's important because it can occur in a crystal form that is
fibrous," says Lynch, the report related. "It's one of the
minerals that's referred to as asbestos or asbestos-form
minerals."
In most cases, grunerite is not fibrous, which means it wouldn't
take the shape of asbestos fibers, the report said. But Lynch
says they need to find out if that's the case at the proposed
mining site. He says there could even be a problem on small-scale
bulk-sampling, but he thinks steps proposed by Gogebic Taconite
would be safe.
"We haven't completed our review yet but that may be sufficient.
It doesn't mean it won't be an issue in the future if there is a
mining project proposed. Certainly with a full-scale mining
operation you move much more material; there's much greater
particulate emissions."
A five year, five million dollar University of Minnesota study of
mine workers on the Iron Range showed three times the number of
mesothelioma cases than the rest of Minnesota's population.
Asbestos fibers are linked to mesothelioma, an aggressive cancer
that has no cure.
"We're a long ways away in this project (to) really understanding
how waste material is being handled or what the nature of the
waste material is," Lynch said. "Like I said, it's an issue we're
going to have to look at if we get to that point."
The fibers become airborne and/or end up in open water during
mining operations, but Lynch says there are ways to control the
release of the particles if they are present in the Penokees.
ASBESTOS UPDATE: EPA Promises Libby Risk Assessment Next Year
-------------------------------------------------------------
Seaborn Larson, writing for Daily Interlake.com, reported that the
U.S. Environmental Protection Agency has outlined a new timetable
of late 2014 to produce results from three studies that will be
pivotal in determining nearly every decision a remedial team in
Libby will make during the remaining years of the asbestos
cleanup.
According to the report, the studies -- a toxicology assessment,
risk assessment and feasibility study -- will dictate the science
the EPA uses to determine exactly how much amphibole asbestos is
acceptable to be left behind when the federal agency finishes its
onsite work. The studies also will help the EPA determine how much
work is left to do in Lincoln County.
Libby continues to deal with the aftermath of asbestos
contamination from the W.R. Grace & Co. vermiculite mine that
closed in 1990 after decades of operation, the report said.
Deborah McKean, a toxicologist for the Region 8 EPA headquarters
in Denver, explained that following the completion of the EPA's
Science Advisory Board's toxicology assessment, scheduled for June
of 2014, the agency expects it will take another six months to
complete the risk assessment.
"My promise is at least within six months of [when] the toxicity
value is finalized, I'll be producing a draft risk assessment,"
McKean said.
Wary of two major deadlines to complete the risk assessment missed
previously by the EPA, Lincoln County Commissioner Tony Berget
speculated on the possibility of the EPA giving itself more
flexibility with its own deadlines.
"At the latest," McKean said in response, to punctuate the
intended deadline of late 2014.
The complete risk assessment defines the lowest possible
concentration of Libby amphibole asbestos fibers that can be
reasonably extracted from the Libby Superfund site and compares
risk exposure levels before and after remedial construction.
"We've been waiting. We need to know what reasonable level we need
to reach," said Berget.
In order to move forward with the risk assessment, McKean said the
toxicity assessment must complete several peer reviews by
different federal agencies, including the White House, before
reaching consummation.
The toxicity assessment exhibits how Libby amphibole asbestos is
directly tied to cancer and noncancerous health issues. McKean
underlined the timeline of the toxicity assessment to conclude in
the spring of next year after peer review and revision.
The final key to completing the toxicity assessment lies in
defining a comprehensive analysis of asbestos-related noncancerous
diseases. The division relating to cancerous asbestos-related
disease has been completed as the initial piece of the puzzle in
addressing the 400 reported deaths of Libby citizens due to
asbestos-related diseases.
"Once I'm told that the toxicity numbers are final, we can
actually finalize the risk assessment, which is not a decision-
making document but will present the data," said McKean.
The EPA's feasibility study process will be the decision-making
document that examines the data collected previously to determine
alternative options in creating ultimate remedial action.
"We are starting the feasibility study right now. We can start
that without the risk assessment," McKean said.
While conducting work in each operable unit of the Libby Superfund
site, the EPA currently is drawing information from draft risk
assessments that allow operations to be put in motion. An EPA
feasibility study handout explains that cleanup alternatives that
are identified by effectiveness, implementability, and cost.
"The idea is that those drafts will be rewritten once the
cumulative risk assessment is complete," said McKean.
Jeff Camplin, president of Camplin Environmental Services Inc. and
vice president of practices and standards of the American Society
of Safety Engineers, said he believes the EPA will generate a
report in a timely fashion for the simple motion of approaching a
withdraw from Libby.
"They're looking for an exit strategy from this Superfund site,
they are realizing they have to get out of Libby," Camplin said.
Camplin has worked as an environmental consultant with activists
in Libby, and previously has stated that he believes the EPA has
pushed forward without adequate scientific facts to establish a
proper cleanup strategy.
"When they say they're done and they've found an acceptable level,
we want to hold their final reports up to the high standards of
what they claim, and not manipulating the data, which they've
proven over and over is the game they play," Camplin maintained.
Granted two investigations by the Inspector General's Office into
the muddy progress of the EPA's administration of the Libby
cleanup, Region 8 has produced a new predicted set of milestone
completion dates to deliver the risk assessment.
The original risk assessment was required of the EPA in 2005, but
was aborted once the agency claimed to have found the Libby site
to be an environmental hazard for which they could draw from no
previous strategy of attack.
After an inspection by the Inspector General's Office in 2005
found that no risk assessment had been moved into development, it
set a new timeline to be followed by the EPA for completing
specific goals. The new recommendation suggested that the EPA
complete a risk assessment by 2007, and again the agency failed to
meet the deadline.
"I think it's pretty ambitious. I just think it may be a little
longer," Berget said.
"We're trying to stay optimistic," added McKean.
ASBESTOS UPDATE: Improper Fibro Dumping Sparks Warning
------------------------------------------------------
ABC News reported that the Rockhampton Regional Council is
reminding residents to take more care after suspected asbestos was
improperly dumped at a council site.
According to the report, council found suspected asbestos dumped
at the Laurel Bank Roadside Bin Station six times.
Councillor Neil Fisher says the quantity suggests the material is
from a building site, the report said.
"Either a home renovator or a builder that are taking off fibro
sheet or asbestos cement sheet off a building site but rather than
going to Rockhampton landfill and disposing of them appropriately,
what's happening is they're actually coming in and just dumping
them straight on the ground in the bin station," he said.
He says people unsure should speak to council's waste disposal
staff.
"If you've got a query and you're not quite sure if that material
that you're taking to the dump could be suspected of being
asbestos or not, just enquire at the waste station," he said.
"The council staff are very, very helpful and will give you the
advice that you need."
ASBESTOS UPDATE: Abatement Ongoing at Woodrow Middle School
-----------------------------------------------------------
Kaitlyn Schroyer, writing for The Middletown Press, reported that
at Woodrow Wilson Middle School, asbestos is being abated along
with tiles and the mastic used to install them when the building
was constructed. According to Charles, this is one phase of a
larger abatement project.
"The material at the school is non-friable and does not create a
hazard unless it is significantly disturbed," Charles said, the
report related. "We are working to systematically remove asbestos
from our schools."
ASBESTOS UPDATE: Subcontractors May Sue Over NBN Shutdown
---------------------------------------------------------
Annabel Hepworth, writing for The Australian, reported tthat the
troubled rollout of the National Broadband Network is threatening
to erupt into legal action as subcontractors facing financial ruin
consider suing Telstra over the asbestos shutdown.
According to the report, subcontractors in Western Australia and
their branch of the Communication Workers Union will meet law firm
Slater & Gordon after they went without pay for about 12 weeks
because of work stoppages caused by reports of asbestos
mishandling at NBN sites around the country.
ASBESTOS UPDATE: Enviro Audit Reveals Fibro at Newport Reserve
--------------------------------------------------------------
Fiona O'Doherty, writing for Hobsons Bay Leader, reported that
there is asbestos at a Newport reserve, an environmental audit has
found, while a man who once worked at the former industrial dump
says he has seen children playing there.
According to the report, Hobsons Bay Council announced in June
that it would spend $1 million cleaning up JC Madigan Reserve so
it could be reopened to the public. And now an Environment
Protection Authority audit has confirmed asbestos at the site at
the corner of Challis and Mason streets. However, the report also
found that the site would be safe for use as a park if
contaminated soil was sealed.
David King, who believes he contracted a rare form of cancer
working at the site, said he could reach inside the fence and
touch asbestos. "It's blowing around everywhere,'' he said.
The audit, dated April 24, 2013, states that fragments of asbestos
sheeting up to 2.5cm were observed and that no remedial work had
taken place. The report also states the risk to human health
would be "negligible'' after rehabilitation.
Mr King said that in the meantime the site should be better
secured after he saw children playing inside the fence about nine
weeks ago.
"The fence is a bit of a joke -- anyone can climb over it,'' he
said.
Western Metropolitan-Labor MP Cesar Melhem also called on the
council to better secure the reserve.
"The council must ensure the reserve is completely fenced off and
contained from people in the community, especially children, who
go exploring,'' he said.
Newport resident Jenny Mitchell said a warning sign at the reserve
should also warn people of the presence of asbestos. She said the
audit made clear it could never be used for a communal vegetable
patch.
The council did not respond to questions as to whether or when
asbestos had been cleared since the April report and whether the
site would be better-secured.
ASBESTOS UPDATE: 4 Companies Named in Jefferson County Lawsuit
--------------------------------------------------------------
Kelly Holleran, writing for The Southeast Texas Record, reported
that one Harris County resident and two Orange County residents
have filed an asbestos suit against four defendant corporations,
claiming the asbestos-related disease with which a man was
diagnosed was wrongfully caused.
According to the report, Audrey J. Hawkins, Terri Banken and Gina
Daigle claim Floyd Hawkins was diagnosed with lung cancer after
being exposed to large amounts of asbestos in products
manufactured, sold, designed, supplied, distributed, mined,
milled, relabeled, resold, processed, applied or installed by the
defendant companies.
Defending companies named in the complaint are Atlantic Richfield
Co., Beazer East Inc., Certainteed Corp. and Guard-Line Inc., the
report said.
The plaintiffs allege Floyd Hawkins's disease was caused because
he inhaled, ingested or otherwise absorbed asbestos fibers while
at work. They claim he did not know of the hazards of asbestos
exposure, according to the complaint.
The plaintiffs state the defendants failed to adequately warn
Floyd Hawkins of the serious health hazards related to asbestos
exposure and failed to provide him with what would be considered
adequate and safe working apparel.
In addition, the defending companies failed to provide Floyd
Hawkins with a safe workplace, allowed a dangerous condition to
exist, failed to warn Floyd Hawkins of the hazardous condition and
to warn him that asbestos particles could lead to disease and
failed to market asbestos products that were safe to use,
according to the complaint.
The defendants negligently failed to test their products before
they were released into the stream of commerce; failed to place
warning labels on the asbestos products; failed to warn Floyd
Hawkins on the proper way to handle asbestos products; failed to
enforce a safety plan; and failed to follow government
regulations, the suit states.
Because of his disease, Floyd Hawkins experienced physical pain,
suffering and mental anguish; endured emotional distress and
physical impairment; and incurred medical costs, the complaint
says.
After Floyd Hawkins's death, his children claim they lost his
care, maintenance, support, services, advice, counsel and
reasonable contributions and suffered mental anguish.
In the lawsuit, the plaintiffs are seeking general, punitive,
special and exemplary damages, plus costs, pre- and post-judgment
interest and other relief to which they may be entitled. They
will be represented by Tina H. Bradley of Hobson & Bradley in
Beaumont.
The case has been assigned to Judge Gary Sanderson, 60th District
Court.
Case No. B194-570
ASBESTOS UPDATE: Garlock Trial Winds Down, Courtroom Closed Again
-----------------------------------------------------------------
T.K. Kim, writing for Legal Newsline, reported that the ongoing
bankruptcy trial for Garlock Sealing Technologies wound down with
attorneys for the gasket manufacturing company and those
representing asbestos claimants calling their last few witnesses
with the judge closing the courtroom one more time during a
lawyer's testimony.
According to the report, the bankruptcy trial, which began in July
at the U.S. Bankruptcy Court for the Western District of North
Carolina and is expected to end later this month after a week-and-
a-half break, will determine the estimated liability of the
company for current and future asbestos claims. One of the central
questions that will help establish how much Garlock will owe the
claimants revolves around whether Garlock products, many removed
decades ago, and no other sources of asbestos, led to cases of
mesothelioma. Judge George Hodges will ultimately decide the
estimated liability of the company for current and future asbestos
claims and how much money the company will need to devote to a
trust to escape bankruptcy.
David Glaspy, a California lawyer who has defended Garlock on more
than 25,000 asbestos claims, testified that having disclosure of
exposure information claimants against the company would have
helped the company significantly in their defense.
To try and limit the company's liability, Garlock attorneys are
asserting that some plaintiffs, taking advantage of
confidentiality provisions enacted for special trusts established
to pay claimants who came into contact with asbestos, are using
the provisions to allow them to sue multiple defendants while
using the same argument that each respectively was the cause of
their illness.
As Glaspy prepared to testify about specific claimants whose
claims have aroused suspicion, Hodges closed the courtroom to
anyone who had not signed a confidentiality agreement. Hodges
previously closed the courtroom during testimony of other
attorneys testifying about the same claimants.
Two weeks ago, Hodges denied a Legal Newsline motion to keep all
of the proceedings open to the public and to unseal transcripts of
the closed testimony. In a written order explaining his decision,
Hodges stated several factors including the circumstances of
certain asbestos plaintiffs' cases, plaintiffs' particular
exposures, "how the law firms responded to discovery, the
questions they asked their clients in so responding, and how the
law firms approached settlement negotiations," amounted to "trade
secrets, confidential business information, and attorney-client
privileged information about which the parties involved have
significant privacy rights. The court has concluded that those
rights outweigh the public's interest in those matters."
Garlock attorneys also questioned the billion plus figure a
consultant for the claimants said would be needed to adequately
fund the trust to pay out all of the company's pending and future
claims and why she included more than $300 million in estimated
defense costs in her figure.
Francine Rabinovitz, president of Hamilton, Rabinovitz &
Associates said she used historical trends for her estimation and
said the defense cost could also serve as a proxy for the
administration costs that will be required to operate it.
She previously testified the company would need to devote $1,293.3
billion to the settlement trust. Rabinovitz said she relied on a
recent five-year span of asbestos litigation data to come up with
the figure. A Garlock consultant previously testified the company
would need to devote a significantly less amount -- $270 million.
Rabinovitz said she arrived at her figure by estimating the size
of the population exposed to asbestos, the proportions of persons
exposed to asbestos who develop mesothelioma, and the cost of
defending asbestos claims among other factors.
The trial is scheduled to resume Aug. 22.
Headquartered in Palmyra, New York, Garlock Sealing Technologies
LLC is a unit of EnPro Industries, Inc. (NYSE: NPO). For more
than a century, Garlock has been helping customers efficiently
seal the toughest process fluids in the most demanding
applications.
On June 5, 2010, Garlock filed a voluntary Chapter 11 petition
(Bankr. W.D.N.C. Case No. 10-31607) in Charlotte, North Carolina,
to establish a trust to resolve all current and future asbestos
claims against Garlock under Section 524(g) of the U.S. Bankruptcy
Code. The Debtor estimated $500 million to $1 billion in assets
and up to $500 million in debts as of the Petition Date.
Affiliates The Anchor Packing Company and Garrison Litigation
Management Group, Ltd., also filed for bankruptcy.
Albert F. Durham, Esq., at Rayburn Cooper & Durham, P.A.,
represents the Debtor in their Chapter 11 effort. Garland S.
Cassada, Esq., at Robinson Bradshaw & Hinson, serves as counsel
for asbestos matters.
The Official Committee of Asbestos Personal Injury Claimants in
the Chapter 11 cases is represented by Travis W. Moon, Esq., at
Hamilton Moon Stephens Steele & Martin, PLLC, in Charlotte, NC,
Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, in New
York, and Trevor W. Swett III, Esq., Leslie M. Kelleher, Esq., and
Jeanna Rickards Koski, Esq., in Washington, D.C. 20005.
Joseph W. Grier, III, the Court-appointed legal representative for
future asbestos claimants, has retained A. Cotten Wright, Esq., at
Grier Furr & Crisp, PA, and Richard H. Wyron, Esq., and Jonathan
P. Guy, Esq., at Orrick, Herrington & Sutcliffe LLP, as his co-
counsel.
About 124,000 asbestos claims are pending against Garlock in state
and federal courts across the country. The Company says majority
of pending asbestos actions against it is stale and dormant --
almost 110,000 or 88% were filed more than four years ago and more
than 44,000 or 35% were filed more than 10 years ago.
Garlock said in the Disclosure Statement that all asbestos claims
must be paid in full. Full payment enables the plan to allow
continued ownership by parent EnPro Industries Inc.
The Plan will create a trust to fund payment to present and future
asbestos claimants. For currently existing claims, the trust will
have insurance proceeds plus cash from Garlock together with a
promise from EnPro to provide up to $30 million over time. For
future claims, the trust will receive $60 million from Garlock
plus a secured promise by Garlock to supply an additional
$140 million. The promise will be secured by 51% of Garlock's
stock.
ASBESTOS UPDATE: Compliance Surveys Completes Dockland Report
-------------------------------------------------------------
Nottingham Post reported that NOTTS company Compliance Surveys has
completed an asbestos management survey of an 83,000sq metre
industrial site in London's Docklands.
According to the report, the Kierbeck Industrial Estate and Minoco
Wharf site is on the north bank of the Thames near the Thames
Barrier, the O2 Arena and City Airport. Managing agent Kemsley
Property Consultants appointed Compliance Surveys to produce
asbestos survey reports for the whole site -- which includes
industrial buildings of varying ages and sizes.
Surveys were completed in a week and the reports published within
two weeks.
ASBESTOS UPDATE: $40,000 Fine for Fibro and Other Waste Offences
----------------------------------------------------------------
KNR Landfill Managers Inc., based at the controversial Vaughan
transfer station, operate a landfill in Cayuga, Ontario (perhaps
the controversial Edward Street landfill that was rebuilt and
reopened several years ago.) They were fined $40,000, plus victim
fine surcharges of $10,000, for failing to comply with their
Ministry of the Environment Approval under the Environmental
Protection Act, for disposing of hazardous asbestos waste and
operating the landfill.
Ministry staff found numerous violations at the landfill,
including failing to prevent mud or dust from being dragged onto
public roads, depositing asbestos waste without supervision,
failing to cover asbestos waste with sufficient material, and
failing to wear protective clothing and respiratory while working
with asbestos waste.
Asbestos is a potent carcinogen. It's hard to believe that, only
40 years ago, Ontario indignantly rejected complaints about
asbestos being blown freely into the air at construction sites,
and about elevated asbestos levels in drinking water . . .
ASBESTOS UPDATE: Order Requiring Prepayment of Jury Fees Stayed
---------------------------------------------------------------
HarrisMartin Publishing reported that a California appellate court
has granted a petition seeking the stay of a pretrial order issued
in six consolidated asbestos trial groups that required the
parties to provide an advance deposit of voir dire and jury fees.
According to its online docket, the California 1st District Court
of Appeal stayed the case on Aug. 9, one day after defendants
Foster Wheeler LLC and Union Carbide Corp. filed a petition
arguing that the prepayment for the jury-related fees was
"unconstitutional," the report related.
In the docket entry, the appellate court requested a response from
the San Francisco Superior Court, the report said.
ASBESTOS UPDATE: Fibro Discovery After Demolition Worries Citizens
------------------------------------------------------------------
CBC News reported that neighbours say they don't feel safe after
asbestos was discovered in a demolished Ottawa building.
According to the report, residents in Little Italy said a tarp
blew off the site on George Street West, scattering dust in the
area.
The provincial Ministry of Labour had issued a stop work order
because of the presence of asbestos, but there are questions over
who should have informed after the dangerous cancer-causing
material was discovered, the report said.
ASBESTOS UPDATE: Erie Man Files Mass Tort Claim in Pa. Court
------------------------------------------------------------
Jon Campisi, writing for The Pennsylvania Record, reported that a
62-year-old man from northwestern Pennsylvania alleges in a newly
filed mass tort claim that his January 2012 lung cancer diagnosis
was due to his working around asbestos-containing products for a
number of years beginning in the 1960s.
According to the report, Lloyd J. Baldwin and his wife, Joyce
Baldwin, of Erie, Pa., filed suit in Philadelphia's Common Pleas
Court on Aug. 7 against close to 30 companies that dealt in
products containing asbestos.
The list of defendants includes, but is not limited to,
Certainteed Corp., DAP Inc., Ford Motor Co., General Electric,
Georgia Pacific, Honeywell International, Owens-Illinois, Pfizer,
Sears Roebuck and Co., and Union Carbide Corp., the report said.
According to the lawsuit, which was filed as a short-form
complaint in the master Asbestos Litigation docket in Common Pleas
Court, Lloyd Baldwin became exposed to asbestos while working as a
machinist, laborer and deliveryman beginning in the 1960s.
The plaintiff was also allegedly exposed to asbestos dust and
fibers while performing home renovations and doing automotive
work.
As a deliveryman, Baldwin was exposed to asbestos from loading and
unloading a variety of asbestos-containing products including
shingles and rolled roofing materials.
While working as a laborer and machinist, the suit says, Baldwin
was exposed to asbestos while working around other people who
worked on boilers, pumps and valves.
Baldwin also became exposed to asbestos while performing those
very same tasks, according to the complaint.
In the course of his automotive work, the plaintiff was exposed to
asbestos while working with brakes, clutches, mufflers and
gaskets, the suit states, and while performing home renovations
Baldwin was exposed to asbestos when he came into contact with
construction materials such as insulation, drywall, joint
compound, caulk, floor tiles, ceiling tiles and paint.
Baldwin had purchased the materials and supplies from a variety of
lumberyards and retail stores, the suit states.
On Jan. 23 of last year, Baldwin was diagnosed with lung cancer by
doctors at the Cleveland Clinic.
A health history shows that Baldwin smoked about one pack of
cigarettes per day from 1966 to 2010.
The Baldwins seeks unspecified damages.
The plaintiffs are being represented by mass tort attorney Tia
Dinh of the Cherry Hill, N.J. firm Weitz & Luxenberg.
The case ID number is 130800379.
ASBESTOS UPDATE: Victims Center Urges US Navy Veterans to Call
--------------------------------------------------------------
US Navy Veterans have some of the highest incidence of
mesothelioma, or asbestos related lung cancers, because at least
in the 1950's, 1960's, 1970's, and 1980's asbestos was used on
most parts of all US Navy ships, especially in engine rooms,
ammunition magazines, repair rooms, fuel storage areas, and or
electronics areas. We are urging all diagnosed victims of
mesothelioma, or asbestos exposure forms of lung cancer, or their
families to call us, for on the spot access to the nation's most
skilled mesothelioma attorneys, or asbestos exposure law firms,
because all these incredibly experienced legal experts do are
financial compensation claims for mesothelioma, or asbestos
exposure forms of lung cancer, and they typically get the best
financial compensation results for their clients in the nation."
The Lung Cancer Asbestos Victims Center wants to emphasize,
because there could potentially be a million dollars on the line
in compensation, for a US Navy Veteran who has been diagnosed with
mesothelioma, or up to hundreds of thousands of dollars on the
line for a lung cancer asbestos exposure victim, who served in the
US Navy, these diagnosed victims, or their family members should
call them at 866-714-6466, for the on the spot contact information
for the nation's leading mesothelioma attorneys, or lung cancer
asbestos exposure law firms.
According to the Centers for Disease Control the top six states
for individuals diagnosed with mesothelioma include Maine,
Pennsylvania, New Jersey, West Virginia, Wyoming, and Washington.
Both Washington, and Maine have major shipyards. Other states with
major shipyards include California, Virginia, Louisiana, Alabama,
Maryland, and Texas. There are currently over 20 million Veterans
of the US Navy.
Aside from the US Navy, high risk workplaces for asbestos exposure
include shipyards, power plants, manufacturing factories, chemical
plants, oil refineries, steel mills, mines, smelters, aerospace
manufacturing facilities, demolition construction work sites,
railroads repair yards, automotive manufacturing facilities, or
auto brake repair shops, especially if the exposure to asbestos
took place in the 1950's, 1960's, 1970's, or 1980's. With
mesothelioma, or lung cancer caused by asbestos exposure the
cancer may not show up until decades after the exposure. As long
as the victim, or their family members can prove the exposure to
asbestos, we will do everything possible to help them get what
might be significant financial compensation.
For more information please call the Lung Cancer Asbestos Victims
Center anytime at 866-714-6466.
http://LungCancerAsbestosVictimsCenter.Com
For more information about a rare form of cancer caused by
exposure to asbestos called mesothelioma,or lung cancer caused by
exposure to asbestos please visit the US Centers For Disease
Control's web site:
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5815a3.htm
ASBESTOS UPDATE: Port Kembla Stack Cleared of Toxic Dust
--------------------------------------------------------
Glen Humphries, writing for Illawarra Mercury, reported that all
the asbestos in the stack was removed, according to Port Kembla
Copper general manager Ian Wilson.
The report related that with the stack scheduled for demolition on
September 5, there has been some concern voiced in the community
about the continued presence of asbestos.
Mr Wilson said they found 22 aluminium asbestos gaskets while
preparing for demolition in 2011
The discovery forced an extended delay while PKC worked out a new
plan.
Port Kembla stack demolition plan revealed
Ultimately, PKC decided to use a demolition company to remove the
gaskets prior to felling the stack and this has been carried out
by Precision Demolition.
"They've been busy since about February up until July and they've
now removed all those aluminium asbestos gaskets," Mr Wilson said.
During investigations of the site, with the help of Wollongong
company Clearsafe Environmental Solutions, two structures at the
base of the stack where asbestos had been used were discovered, he
said.
"Those two remaining locations will have the asbestos removed," he
said.
"We'll get Clearsafe back in and the entire structure will be
given a full clearance for asbestos and then there will be
absolutely no asbestos remaining in the structure."
Mr Wilson dismissed the claims that the stack's bricks contained
asbestos.
"Those are strange stories that have been made up. I don't know
where they have come from."
The issue of the stack demolition was raised in a heated meeting
of Wollongong City Council. Councillors raised concerns about the
demolition and passed a motion to write to Planning Minister Brad
Hazzard and request confirmation that all planning requirements
and conditions relating to the stack's demolition were being
complied with.
Mr Wilson said that PKC was meeting all of its requirements.
"Yep. There's no point in me elaborating on that because that's
the position that we fully expect.
"We will be able to demonstrate compliance with all the consent
provisions."
ASBESTOS UPDATE: Exposure Spikes Prompting Home Renovator Warning
-----------------------------------------------------------------
Kristofer Crane, writing for The Courier-Mail, reported that home
renovators could be behind a spike in the number of people that
have been exposed to asbestos fibres in the past year, a support
group spokesperson says.
According to the report, president of the Asbestos Related Disease
Support Society Queensland, Helen Colbert, said the recent
increases in asbestos-related cancers and exposure levels were a
very big concern.
"Asbestos related cancers have increased by 30 per cent, and the
current asbestos exposures have doubled since last year," Mrs
Colbert told The Courier-Mail.
"This is something that can be and should be avoided."
Mrs Colbert warned home renovators to be cautious when dealing
with homes built before the 1990s.
"With the renovations that are taking place it is a concern to the
society," she said.
Ms Colbert's husband Ray is currently battling heart disease as a
result of asbestos exposure and is passionate about spreading the
word to help protect others from the same fate.
"People can take a few simple steps, if a structure is built pre-
1990 get advice and have a professional inspection done to the
dwelling," she said.
Former Queensland State of Origin captain Trevor Gillmeister also
knows how dangerous the diseases can be, having lost his father
four years ago to cancer cause by asbestos exposure.
Gillmeister yesteday said he wished for no one to lose a family
member the way he did.
"I lost my father four years ago to it . . . it is not pleasant,
my mum looked after dad for 12 months and it was hard on her and
hard on the whole family," he said.
"You are trying to do the best for your family and getting it from
working, that is the scary thing.
"I remember my father saying to me he didn't want people to feel
sorry for him, he just wanted to bring that awareness back."
The former football star said it was essential to remind people of
the risks of asbestos.
"Every second person thinks they are a home renovator nowadays and
you need to be aware that asbestos can be anywhere, especially in
older houses," he said.
"One little fibre can get into your lungs and it can be the end of
it."
ASBESTOS UPDATE: Center Urges Construction Workers to Call
----------------------------------------------------------
The Lung Cancer Asbestos Victims Center says, "We are extremely
focused on identifying almost any type of residential, or
commercial construction worker, who has been diagnosed with
mesothelioma, or asbestos related forms of lung cancer, especially
if the victim was involved in any type of construction work in the
1950's, 1960's, 1970's, or 1980's, because so many building
products during these time frames contained asbestos. We are
incredibly passionate about making certain all diagnosed victims
of mesothelioma, or asbestos related forms of lung cancer have on
the spot access to the nation's most experienced mesothelioma
attorneys, or asbestos exposure law firms, because these
specialist attorneys, or law firms do nothing but mesothelioma, or
asbestos exposure financial compensation claims, and they are
incredibly good at what they do."
The Lung Cancer Asbestos Victims Center fears that most people
have seen the cable TV marketing law firms advertising for US Navy
Veterans, and mesothelioma, but the average person does not
consider asbestos exposure, and residential, or commercial
construction workers, and mesothelioma, or asbestos exposure forms
of lung cancer. If a former construction worker has been diagnosed
with mesothelioma, or asbestos exposure lung cancer, the victim,
or their family members are urged to contact the Lung Cancer
Asbestos Victims Center anytime at 866-714-6466, because the group
is extremely passionate about making certain all diagnosed victims
of mesothelioma, or asbestos exposure lung cancer get the best
possible legal assistance, in order to ensure they are properly
compensated.
"We want to emphasize we are trying to help victims of
mesothelioma, or lung cancer victims who had on the job exposure
to asbestos in all states, including California, Florida, New
York, New Jersey, Maine, Massachusetts, Maryland, Virginia, North
Carolina, Georgia, Alabama, Mississippi, Louisiana, Oklahoma,
Tennessee, Kentucky, Arkansas, Texas, Missouri, Ohio, Michigan,
Pennsylvania, Illinois, Iowa, Nebraska, Kansas, Minnesota,
Wisconsin, North Dakota, Idaho, Colorado, Washington, Arizona,
Nevada, Oregon or any other state. Again we need family members to
help us get these victims identified, and a family can call us
anytime at 866-714-6466."
"Aside from construction workers, other high risk groups for
mesothelioma, or asbestos exposure forms of lung cancer include
Veterans of the US Navy, because asbestos was in all US Navy ships
until recently. Other high risk workplaces for asbestos exposure
include shipyards, power plants, manufacturing factories, chemical
plants, oil refineries, mines, smelters, aerospace manufacturing
facilities, demolition construction work sites, railroad repair
yards, automotive manufacturing facilities, or auto brake shops.
With mesothelioma, or lung cancer caused by asbestos exposure the
cancer may not show up until three, four, or even five decades
after the exposure. As long as the victim, or their family members
can prove the exposure to asbestos, we will do everything possible
to help them get what might be significant financial compensation,
by making certain they have access to the most skilled, and
accomplished mesothelioma lawyers, or asbestos exposure law firms
in the nation."
For more information please call the Lung Cancer Asbestos Victims
Center anytime at 866-714-6466.
http://LungCancerAsbestosVictimsCenter.Com
For more information about a rare form of cancer caused by
exposure to asbestos called mesothelioma,or lung cancer caused by
exposure to asbestos please visit the US Centers For Disease
Control's web site:
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5815a3.htm
ASBESTOS UPDATE: Tamaroa Grade School Removes Deadly Dust
---------------------------------------------------------
Stephanie Tyrpak and Randy Livingston, writing for wsiltv.com,
reported that Tamaroa Grade School didn't expect to make any major
repairs to the cafeteria this summer. That was before the basement
dining area saw severe water damage in June.
According to the report, the school had to tear out the damaged
floor just and remove about 900 square feet of asbestos.
Administrators say the students are not in danger and actual
removal of the asbestos is already complete, the report related.
They've also followed state code for how to deal with the problem.
"We're having school as planned," said Assistant Principal Cindy
Opp. "You know we've greeted kids, had them in."
However, there are signs posted with the warning about asbestos
dangers.
"Like many older buildings, the flooring and things that were used
years ago contained amounts of asbestos in them," said Opp.
The school's basement flooded during heavy rain back in June,
buckling the floor of the cafeteria.
"There were about six inches of water actually got in by the time
we detected it," said Opp.
Pulling up that floor meant the possibility of asbestos exposure.
The school spent weeks hiring a removal company and getting state
approval.
"We would never do anything to endanger the safety of our kids,"
said Opp.
The asbestos removal started. Staff and teachers were able to set
up their classrooms for the new school year.
"They've been doing the air quality checks throughout, said Opp.
So far, all of the testing has come back safe.
Taking out the damaged floor and the asbestos has already cost
more than $22,000, and the bill is being picked up by insurance.
The new cafeteria floor is scheduled to go in later this week.
Plus, most of the containers and plywood should be removed in the
next day or two.
Until the floor is done, there's no cafeteria and no kitchen for
hot food. It's a small inconvenience that teachers have been
trying to make fun for kids.
"They grabbed their sack lunch in the gym," said Opp. "Went out
and got to go out and have a picnic lunch"
The school could get the results for the final air test for inside
the cafeteria. Once that is deemed safe, crew can put down the new
concrete floor.
The Illinois Department of Public Health told News 3 that every
school is required to have an asbestos plan in place. They have
also received proper notification for the asbestos work at Tamaroa
Grade School.
ASBESTOS UPDATE: Fibro Exposure Led to Man's Death, Inquest Hears
-----------------------------------------------------------------
Manx Radio reported that an inquest has heard how a 68-year-old
man from Ramsey died as a result of asbestos exposure.
According to the report, Joseph "Mike" Osborne was diagnosed with
mesothelioma in November last year and passed away in the care of
Hospice isle of man in Strang.
Mr Osborne had been an apprentice coppersmith for British Rail in
the 1960s, where he regularly worked near asbestos on the steam
locomotives, the report related.
In a statement before his death Mr Osborne said he wasn't aware of
the dangers the insulation material posed while working for
British Rail, the report said.
The firm has accepted full liability for Mr Osborne's illness and
a compensation settlement had already been agreed between the
company and the Osbornes before the inquiry, the report added.
Coroner of Inquests John Needham said the cause of death was
mesothelioma and reached a verdict of death from an industrial
disease.
He passed on his condolences to Mr Osborne's family and friends.
ASBESTOS UPDATE: Ex-Supervisor Sentenced for Fibro Mishandling
--------------------------------------------------------------
Todd Dvorak, writing for the Associated Press, reported that a
judge imposed a six-month prison sentence on a former construction
supervisor convicted of mishandling pipes coated with asbestos
during an upgrade of Orofino's municipal sewer and water system.
According to the report, Douglas Greiner, 52, of Eagle, pleaded
guilty in a deal with prosecutors earlier this year to a criminal
charge of violating the federal Clean Air Act. The law and the
regulations designed to enforce it spell out how construction
crews must remove, handle and dispose of hazardous materials like
the decades-old, cement and asbestos-covered pipe that was dug up
by Greiner's crew four years ago.
Investigators with the Environmental Protection Agency accused
Greiner, a former employee of Owyhee Construction Inc., of failing
to properly oversee as crews removed and cut up the pipe then
illegally disposed of 2,400 tons of soil laced with asbestos
shards in 16 separate dump sites around town, the report said.
As a result, the EPA stepped in and paid nearly $4 million to
clean up the disposal sites, the report added.
In U.S. District Court in Boise, Greiner apologized for his
actions and said he never intended to cause harm to anyone.
Public defender, Christian Collins, made a case for leniency,
saying no proof exists showing Greiner, a 30-year industry
veteran, schemed to shirk federal law or was motivated by criminal
or malicious intent. Collins argued the real flaw was the
company's failure to provide proper training while signing
contracts that clearly spelled out the likelihood of dealing with
asbestos piping.
"I should have been on site more often, paid more attention to
what was going on," said Greiner, who also was ordered to six
months of house arrest after his prison release. "This whole thing
could have been avoided . . . if everybody on the project had done
their job."
Judge Edward Lodge acknowledged there was a good argument that
Greiner didn't act intentionally. But he also emphasized the need
to send a message that the construction industry that there are
consequences for companies and individuals who ignore federal
rules for handling hazardous waste.
"This is a serious crime. The message has to go out that in these
situations . . . in any of these asbestos cases, big or small, you
have to oversee them. You can't allow something to happen that
will put people in jeopardy," Lodge said.
Lodge handed out the same sentence to Bradley Eberhart, who was
the OCI crew foreman on the Orofino project who reported to
Greiner. Along with the prison sentence, each must serve six
months of home confinement followed by six months of supervised
release.
EPA officials say their criminal investigation is ongoing and is
now focused on OCI executives.
"Such criminal acts endanger workers and the community and can, as
demonstrated here, cost the federal government millions of dollars
to clean up," said Robert Dreher, assistant attorney general for
the Environment and Natural Resources.
Officials with the Boise-based construction company did not
immediately return a telephone message left by the Associated
Press.
Lodge ordered Eberhart to pay $3.9 million in restitution, the
cost of the government cleanup. Greiner's attorney challenged
efforts to require Greiner to share that financial burden and
Lodge asked attorneys from both sides to file briefs on the issue
before making a decision.
ASBESTOS UPDATE: Sheffield Widow Seeks Answers Over Fibro Death
---------------------------------------------------------------
The Star reported that relatives of a Sheffield man who died from
an asbestos-related disease want to hear from former colleagues to
help them establish where he came into contact with the deadly
substance.
According to the report, Roger Headley, aged 65, of Beaver Hill
Road, Handsworth, worked as a mechanic at several firms -- City
Road Garage on City Road, Hillsborough Garage and Motor Co Ltd in
Hillsborough, Kennings on Canklow Road, Rotherham, and Ambrose
Shardlow, later known as GKN Shardlow Ltd and now Bifranji UK Ltd,
on Grange Mill Lane, Meadowhall.
The father-of-four, who had five grandchildren, died in December
2010 after losing his battle with the asbestos-related terminal
cancer mesothelioma, the report said.
His widow Jackie said: "Roger was a true Sheffielder -- a real
working man who wanted to support his family.
"Losing him at Christmas was exceptionally hard and the holidays
will always be a reminder of our loss.
"He suffered a great deal due to his illness before he eventually
passed away, and it was heartbreaking to watch him suffer.
"His breathing deteriorated and he quickly became less active and
mobile.
"Nothing can bring him back but we hope as many of his ex-
workmates as possible will help us find out more information about
how he was exposed to asbestos and if anything more could
potentially have been done to protect him from the dangerous dust.
"We just want to get to the bottom of where he was exposed to
asbestos. If anyone remembers working with him, I urge them to
come forward and help us."
Martyn Hayward, a specialist industrial disease lawyer at
Sheffield-based law firm Irwin Mitchell, said: "Mesothelioma is an
aggressive and incurable cancer which causes so much distress for
victims like Roger and their families.
"Sadly, many employers did not do enough to manage the risks of
asbestos exposure, despite knowing how dangerous it is.
"We hope Roger's former co-workers from Hillsborough Garage,
Kennings and Ambrose Shardlow will come forward to help answer the
many questions his family has about his exposure to asbestos as
well as what measures, if any, were in place to protect employees
like him.
"It's important we now help his family get answers so they can
honour his memory and get the justice they deserve."
Anyone who used to work with Roger who could help provide details
of his working conditions and contact with asbestos should call
Martyn Hayward at Irwin Mitchell on 0114 274 4420 or email
martyn.hayward@irwinmitchell.com
ASBESTOS UPDATE: Legal Newsline Appeals Decision in Garlock Case
----------------------------------------------------------------
T.K. Kim, writing for Legal Newsline, reported that attorneys for
Legal Newsline have appealed a U.S. bankruptcy court judge's
decision to close off testimony and portions of the record of
several witnesses speaking about questionable claims filed by
asbestos plaintiffs during the ongoing bankruptcy trial for
Garlock Sealing Technologies.
According to the report, the trial, which began in July at the
U.S. Bankruptcy Court for the Western District of North Carolina
and is expected to end later this month after a week-and-a-half
break, will determine the estimated liability of the company for
current and future asbestos claims.
To try and limit the company's liability, Garlock attorneys are
asserting that some plaintiffs, taking advantage of
confidentiality provisions enacted for special trusts established
to pay claimants who came into contact with asbestos, are using
the provisions to allow them to sue multiple defendants while
using the same argument that each respectively was the cause of
their illness.
Judge George Hodges previously denied a Garlock motion to remove
confidentiality designations from evidence relating to the trust
claim in addition to a Legal Newsline motion filed shortly after
the judge closed his courtroom during the testimony of a law
professor speaking about fraud and abuse on the part of claimants.
In a written order explaining his decision denying the Legal
Newsline motion, Hodges stated several factors including the
circumstances of certain asbestos plaintiffs' cases, plaintiffs'
particular exposures, "how the law firms responded to discovery,
the questions they asked their clients in so responding, and how
the law firms approached settlement negotiations," amounted to
"trade secrets, confidential business information, and attorney-
client privileged information about which the parties involved
have significant privacy rights. The court has concluded that
those rights outweigh the public's interest in those matters."
In the decision, the judge stated that the fact that the hearing
"is not a dispositive proceeding," was a consideration.
"The closing of the proceedings has been narrowly drawn and has
resulted in the 'public' being excluded only for a very small
portion of the proceedings. The proceedings have otherwise been
open to the public."
One of the central questions that will help establish how much
Garlock will owe the claimants revolves around whether Garlock
products, many removed decades ago, and no other sources of
asbestos, led to cases of mesothelioma. Hodges will ultimately
decide the estimated liability of the company for current and
future asbestos claims and how much money the company will need to
devote to a trust to escape bankruptcy.
Legal Newsline's attorneys are challenging Hodges' decision under
a First Amendment claim. In its motion, attorneys requested that
the rest of the remaining trial stay open to the public and that
transcripts of all the closed portion be made publicly available.
The trial is scheduled to resume Aug. 22.
Headquartered in Palmyra, New York, Garlock Sealing Technologies
LLC is a unit of EnPro Industries, Inc. (NYSE: NPO). For more
than a century, Garlock has been helping customers efficiently
seal the toughest process fluids in the most demanding
applications.
On June 5, 2010, Garlock filed a voluntary Chapter 11 petition
(Bankr. W.D.N.C. Case No. 10-31607) in Charlotte, North Carolina,
to establish a trust to resolve all current and future asbestos
claims against Garlock under Section 524(g) of the U.S. Bankruptcy
Code. The Debtor estimated $500 million to $1 billion in assets
and up to $500 million in debts as of the Petition Date.
Affiliates The Anchor Packing Company and Garrison Litigation
Management Group, Ltd., also filed for bankruptcy.
Albert F. Durham, Esq., at Rayburn Cooper & Durham, P.A.,
represents the Debtor in their Chapter 11 effort. Garland S.
Cassada, Esq., at Robinson Bradshaw & Hinson, serves as counsel
for asbestos matters.
The Official Committee of Asbestos Personal Injury Claimants in
the Chapter 11 cases is represented by Travis W. Moon, Esq., at
Hamilton Moon Stephens Steele & Martin, PLLC, in Charlotte, NC,
Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, in New
York, and Trevor W. Swett III, Esq., Leslie M. Kelleher, Esq., and
Jeanna Rickards Koski, Esq., in Washington, D.C. 20005.
Joseph W. Grier, III, the Court-appointed legal representative for
future asbestos claimants, has retained A. Cotten Wright, Esq., at
Grier Furr & Crisp, PA, and Richard H. Wyron, Esq., and Jonathan
P. Guy, Esq., at Orrick, Herrington & Sutcliffe LLP, as his co-
counsel.
About 124,000 asbestos claims are pending against Garlock in state
and federal courts across the country. The Company says majority
of pending asbestos actions against it is stale and dormant --
almost 110,000 or 88% were filed more than four years ago and more
than 44,000 or 35% were filed more than 10 years ago.
Garlock said in the Disclosure Statement that all asbestos claims
must be paid in full. Full payment enables the plan to allow
continued ownership by parent EnPro Industries Inc.
The Plan will create a trust to fund payment to present and future
asbestos claimants. For currently existing claims, the trust will
have insurance proceeds plus cash from Garlock together with a
promise from EnPro to provide up to $30 million over time. For
future claims, the trust will receive $60 million from Garlock
plus a secured promise by Garlock to supply an additional
$140 million. The promise will be secured by 51% of Garlock's
stock.
*********
S U B S C R I P T I O N I N F O R M A T I O N
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Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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