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/raid1/www/Hosts/bankrupt/CAR_Public/130927.mbx C L A S S A C T I O N R E P O R T E R Friday, September 27, 2013, Vol. 15, No. 192 Headlines 24 HOUR FITNESS: $17.4 Mil. Settlement in Overtime Suit Okayed AMERICAN EQUITY: Signs Deal to Settle Suits Over Sales Practices AMERICAN HOME: Denial of Bonzon's Matrix Benefits Upheld AMERIGAS PARTNERS: UGI Continues to Face "Swigers" Lawsuit BAYER CORP: Reed Smith Discusses Ascertainability in Class Action BIOSANTE PHARMACEUTICALS: LibiGel-Related Suit May Be Amended BLYTH INC: Still Faces Suit Filed by Shareholders in Connecticut BOEING COMPANY: 401(k) Plan Participants Get Class Certification CARGILL INC: Settles Class Action Over Truvia Natural Claims CARRIAGE SERVICES: "Leathermon" Suit Discovery Will Now Proceed COLORADO: Class Action Challenges COGCC's Constitutionality COLORTYME INC: Loses Bid to Dismiss "Spy" Program Class Action EDWARDS LIFESCIENCES: Accused of Misleading Shareholders ENERGY TRANSFER: Atty. Fees in Sunoco Merger Suits Paid in July ENERGY TRANSFER: Discovery in Southern Union Merger Suit Ongoing ENERGY TRANSFER: Unit Continues to Defend "Price" Class Suit FARM BOY 2012: Recalls Plain Croissants Over Undeclared Allergens FRITO-LAY: Court Narrows Claims in Deceptive Labeling Suit GARDEN FRESH: Expands Recall to Specific Product Packages GOGO LLC: Misleads Consumers on Internet Charges, Suit Says INTERMEC INC: Continues to Defend Honeywell Merger-Related Suits IPPOLITO FRUIT: Recalls Spinach Over Salmonella Presence JONES FINANCIAL: Awaits Approval of Securities Suit Accord JONES FINANCIAL: "Ezersky" Suit v. Edward Jones in Pleading Stage JONES FINANCIAL: Edward Jones Settles Lehman Brothers-Linked Suit JONES FINANCIAL: Oct. 9 Case Management Hearing in "Maxwell" Suit JUNIPER NETWORKS: "Royal Oak" Securities Suit Dismissed in May LEXMARK INT'L: Appeal From Attorneys' Fee Award Remains Pending MEDIVATION INC: Still Awaits Oral Argument in Securities Suit MINNESOTA: Judge Dismisses Driver's Privacy Class Action MORGAN STANLEY: Still Faces Antitrust Lawsuit in Illinois MORGAN STANLEY: Plaintiffs in ERISA Suit Appeal Court Judgment MSG HOLDINGS: Accused of Not Paying Minimum and Overtime Wages NAVISTAR INT'L: Objectors to Liability Suit Deal Must Post Bond NEW YORK: Court Enters Remedies Opinion in Floyd and Ligon Cases NONG SHIM: Sued Over Alleged Korean Noodle Price-Fixing OHR PHARMACEUTICALS: Court Dismisses Amended "Schmidt" Class Suit PATH: Faces Class Action Over Alleged TCPA Violation PETROCHINA COMPANY: Pomerantz Firm Files Class Action in New York PEYTO EXPLORATION: Aware of Potential New Open Range Class Action PORTLAND GENERAL: Still Faces Suits by Electric Service Customers PORTLAND GENERAL: Plaintiffs Balk at $33.1MM Refund Order QANTAS AIRWAYS: Mediation in Air Freight Fixing Suit Set for Nov. REVEL ENTERTAINMENT: Faces Class Suit Over Refund Promises RITE AID: "Moore" and "Goode" Suits Are Related, Judge Says SANOFI-AVENTIS US: Sued by Sale Agents of Zaltrap(R) Over Bonus SHERWIN-WILLIAMS: Ruling in Lead Paint Suit Expected by Year-End STELLARONE CORP: Faces Merger-Related Class Suit in Virginia SUBURBAN PROPANE: Defends Class Suit Alleging Consumer Claims SUBURBAN PROPANE: Settlement Proceeds Distribution Began Aug. 7 TOWER GROUP: Gardy & Notis Files Securities Class Action in N.Y. UMG RECORDINGS: Court Resolves Discovery Dispute in "James" Suit UNFI CANADA: Recalls Bob's Red Mill Sorghum Flour WALTER INVESTMENT: Faces "Cummings" Class Suit in Florida WELLS FARGO: Faces Suit in California Over Short Sale of Property YAHOO! INC: Appeal From Dismissal of Stockholder Suit Pending * "Rigorous Analysis" Buzzword in Class Action Jurisprudence Asbestos Litigation ASBESTOS UPDATE: Lorillard Tobacco Faces $8MM Verdict in PI Suit ASBESTOS UPDATE: Fibro Found in Poteet Public Library ASBESTOS UPDATE: Fibro Removed from St. Ignatius Retreat House ASBESTOS UPDATE: Fibro at Whiteside County's Landfill Gets OK ASBESTOS UPDATE: Widow of Mesothelioma Victim Warns of Risk ASBESTOS UPDATE: Fibro Delays Start of Glick Bldg. Demolition ASBESTOS UPDATE: Deadly Dust Feared When Church Is Demolished ASBESTOS UPDATE: More Fibro Found at Brisbane Primary School ASBESTOS UPDATE: Residents Angered Over Fibro Left in Streets ASBESTOS UPDATE: Deadly Dust Removed From Houston Hall ASBESTOS UPDATE: Fibro Scare Closes Aylmer Police Station ASBESTOS UPDATE: ADAO Testifies to Congress to Aid Fibro Ban ASBESTOS UPDATE: Old Village Hall, Fire House Need Fibro Removal ASBESTOS UPDATE: Aussies Not Protecting Themselves From Fibro ASBESTOS UPDATE: Ohio Teachers Duct Tape Peeling Fibro Carpeting ASBESTOS UPDATE: Fibro Detection Halts Sydney Cruise Wharf ASBESTOS UPDATE: Grimsby Swimming Pool Closed Over Fibro Fears ASBESTOS UPDATE: Colorado Waives Fibro Cleanup for Flood Recovery ASBESTOS UPDATE: Missouri Fibro Exposure Leads to Lawsuit ASBESTOS UPDATE: Toxic Dust Disturbed at Maroochydore High School ASBESTOS UPDATE: Fibro Roofing in Malta Building Removed ASBESTOS UPDATE: Dying Worker Wins $38MM for Fibro Exposure ASBESTOS UPDATE: Deadly Dust "Buried at Golf Course" ASBESTOS UPDATE: Transfer of Former Riverview Property Approved ASBESTOS UPDATE: Electricians, et al., at Risk for Fibro Exposure ASBESTOS UPDATE: Ex-Shipyard Worker Sues Former Employer, Others ASBESTOS UPDATE: Former Shipyard Worker Sues Eagle Inc., Others ASBESTOS UPDATE: Fibro Displaces West Anchorage Residents ASBESTOS UPDATE: Stainforth Court Complex Needs Fibro Removal ASBESTOS UPDATE: Hazardous Waste Abound in Subic ASBESTOS UPDATE: Foundation Launches Drive to Cut Fibro Death Toll ASBESTOS UPDATE: Plant Removal Continued Despite Fibro Risk ASBESTOS UPDATE: South West Rocks Homeowner Counts Clean-up Costs ASBESTOS UPDATE: Vermiculite Concerns Discussed in Online Video ASBESTOS UPDATE: Council Worker Asked to Cover Up Deadly Dust ASBESTOS UPDATE: Slater Junior High to Close for Abatement ASBESTOS UPDATE: Fibro Halts Plans for Carolina Sharpe House ASBESTOS UPDATE: Utica Mutual Sues Clearwater in Reinsurance ASBESTOS UPDATE: Appeal in Weitz Luxenberg Cases Dismissed ASBESTOS UPDATE: Tolling of Time to Perfect Appeal Denied ASBESTOS UPDATE: Bid for Reargument in NY Suit Denied ASBESTOS UPDATE: Ill. Court Affirms Ruling in "Gillenwater" Suit ASBESTOS UPDATE: La. Court Affirmed Judgment in "Watts" Suit ASBESTOS UPDATE: "Caire" Suit Remanded to State Court ASBESTOS UPDATE: Inmate's Civil Rights Action Dismissed ASBESTOS UPDATE: Kansas Court Denies Inmate's Reconsideration Bid ASBESTOS UPDATE: Illinois Court Junks Inmate's Civil Rights Action ASBESTOS UPDATE: W. Va. Court Affirms Ruling in "Seckman" Suit ASBESTOS UPDATE: Ohio Court Affirms Ruling in "Brown" Suit ********* 24 HOUR FITNESS: $17.4 Mil. Settlement in Overtime Suit Okayed -------------------------------------------------------------- Philip A. Janquart at Courthouse News Service reports that a federal judge has approved a $17.4 million settlement over claims that 24 Hour Fitness refused to pay overtime. Gabe Beauperthuy led a 2006 class action accusing the gym chain of illegally classifying its managers, sales counselors and trainers as exempt from overtime pay in violation of the Fair Labor Standards Act. U.S. District Judge Samuel Conti approved a final settlement that awards each of the 862 claimants $20,000 and attorneys' fees of more than $5 million, plus fees and costs, for a total of more than $17.4 million. Conti called the settlement "fair, reasonable and adequate," and said it received "overwhelming approval" from 851 of the 862 claimants. "The reaction of the plaintiffs to the proposed settlement strongly supports the conclusion that the proposed settlement is fair, reasonable and adequate," Conti wrote. "Accordingly, the court hereby grants final approval of the settlement and orders the parties to comply with the terms of the settlement agreement." The Special Master, Hon. James Larson, is represented by: James Larson, Esq. JAMS Two Embarcadero Center, Suite 1500 San Francisco, CA 94111 Telephone: (415) 982-5267 Facsimile: (415) 982-5287 E-mail: jlarson@jamsadr.com The Plaintiffs are represented by: William M. Lukens, Esq. Jennifer Lee Jonak, Esq. LUKENS LAW GROUP One Maritime Plaza, Suite 1600 San Francisco, CA 94111-3506 Telephone: (415) 433-3000 Facsimile: (415) 781-1034 E-mail: wlukens@lukenslaw.com jenny@jonak.com - and - Justin Potter Karczag, Esq. Thomas G. Foley, Jr., Esq. FOLEY BEZEK BEHLE & CURTIS, LLP 15 West Carrillo Street Santa Barbara, CA 93101 Telephone: (805) 962-9495 Facsimile: (805) 965-0722 E-mail: jkarczag@foleybezek.com tfoley@foleybezek.com - and - Stephanie Rae Hanning, Esq. FOLEY BEZEK BEHLE AND CURTIS 575 Anton Blvd., Suite 710 Costa Mesa, CA 92626 Telephone: (714) 556-1700 Facsimile: (714) 546-5005 E-mail: shanning@foleybezek.com - and - Richard E. Donahoo, Esq. Thomas John Welch, Esq. DONAHOO & ASSOCIATES 440 West First, Suite 101 Tustin, CA 92780 Telephone: (714) 953-1010 E-mail: rdonahoo@donahooandassoc.com twelch@donahoo.com The Defendants are represented by: Gregory William Knopp, Esq. Rex S. Heinke, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 2029 Century Park East, Suite 2400 Los Angeles, CA 90067 Telephone: (310) 552-6436 Facsimile: (310) 229-1001 E-mail: gknopp@akingump.com rheinke@akingump.com - and - Henry D. Lederman, Esq. Lisa Chagala, Esq. LITTLER MENDELSON PC 1255 Treat Boulevard, Suite 600 Walnut Creek, CA 94597 Telephone: (925) 932-2468 Facsimile: (925) 946-9809 E-mail: hlederman@littler.com lchagala@littler.com - and - Garry George Mathiason, Esq. Laura Emily Hayward, Esq. LITTLER MENDELSON, P.C. 650 California Street, 20th Floor San Francisco, CA 94108 Telephone: (415) 433-1940 E-mail: gmathiason@littler.com lhayward@littler.com - and - John C. Kloosterman, Esq. LITTLER MENDELSON PC 50 W. San Fernando, 15th Floor San Jose, CA 95113-2303 Telephone: (408) 998-4150 Facsimile: (408) 288-5686 E-mail: jkloosterman@littler.com - and - Sarah Rebecca Nichols, Esq. OGLETREE DEAKINS NASH SMOAK & STEWART Steuart Tower, One Market Plaza, Suite 1300 San Francisco, CA 94105 Telephone: (415) 442-4810 Facsimile: (415) 442-4870 E-mail: sarah.nichols@ogletreedeakins.com - and - James Y. Wu, Esq. LAW OFFICE OF JAMES Y. WU 1839 Ygnacio Valley Road, #388 Walnut Creek, CA 94598 Telephone: (925) 658-0300 Facsimile: (925) 954-6551 E-mail: james@jameswulaw.com The case is Beauperthuy, et al. v. 24 Hour Fitness USA, Inc., et al., Case No. 3:06-cv-00715-SC, in the U.S. District Court for the Northern District of California (San Francisco). AMERICAN EQUITY: Signs Deal to Settle Suits Over Sales Practices ---------------------------------------------------------------- American Equity Investment Life Holding Company entered into a settlement agreement to resolve a consolidated lawsuit alleging improper sales practices, according to the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. In recent years, companies in the life insurance and annuity business have faced litigation, including class action lawsuits, alleging improper product design, improper sales practices and similar claims. The Company is currently a defendant in a purported class action, McCormack, et al. v. American Equity Investment Life Insurance Company, et al., in the United States District Court for the Central District of California, Western Division and Anagnostis v. American Equity, et al., coordinated in the Central District, entitled, In Re: American Equity Annuity Practices and Sales Litigation (complaint filed September 7, 2005) (the "Los Angeles Case"), involving allegations of improper sales practices and similar claims. The Los Angeles Case is a consolidated action involving several lawsuits filed by individuals, and the individuals are seeking class action status for a national class of purchasers of annuities issued by the Company; however, no class has yet been certified. The named plaintiffs in this consolidated case are Bernard McCormack, Gust Anagnostis by and through Gary S. Anagnostis and Robert C. Anagnostis, Regina Bush by and through Sharon Schipiour, Lenice Mathews by and through Mary Ann Maclean and George Miller. The allegations generally attack the suitability of sales of deferred annuity products to persons over the age of 65. The plaintiffs seek rescission and injunctive relief including restitution and disgorgement of profits on behalf of all class members under California Business & Professions Code section 17200 et seq. and Racketeer Influenced and Corrupt Organizations Act; compensatory damages for breach of fiduciary duty and aiding and abetting of breach of fiduciary duty; unjust enrichment and constructive trust; and other pecuniary damages under California Civil Code section 1750 and California Welfare & Institutions Codes section 15600 et seq. On July 30, 2013, the parties entered into a settlement agreement and stipulated to certification of the case as a class action for settlement purposes only. Based upon the terms of the settlement agreement, the $17.5 million litigation liability represents the Company's best estimate of probable loss with respect to this litigation; however, the settlement is contingent upon court approval which has not yet been granted. Additionally, other factors could potentially result in a change in this estimate as further developments take place. In particular, part of the settlement involves a claims process for individual class members, and it is difficult to predict the amount of the liabilities that will ultimately result from that process. In light of the inherent uncertainties involved in the pending purported class action lawsuit, there can be no assurance that such litigation, or any other pending or future litigation, will not have a material adverse effect on the Company's business, financial condition, or results of operations. American Equity Investment Life Holding Company -- http://www.american-equity.com/-- through its subsidiaries, underwrites fixed annuity and life insurance products in the United States and the District of Columbia. The Company was founded in 1995 and is based in West Des Moines, Iowa. AMERICAN HOME: Denial of Bonzon's Matrix Benefits Upheld -------------------------------------------------------- In IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION, Karen Bonzon, a class member under the Diet Drug Nationwide Class Action Settlement Agreement with Wyeth, seeks benefits from the AHP Settlement Trust. Based on the record developed in the show cause process, the United States District Court for the Eastern District of Pennsylvania must determine whether Ms. Bonzon has demonstrated a reasonable medical basis to support her claim for Matrix Compensation Benefits and, if so, whether she met her burden of proving that her claim was not based, in whole or in part, on any intentional material misrepresentation of fact. In an August 12, 2013 Memorandum available at http://is.gd/2EJyzQ from Leagle.com, District Judge Harvey Bartle III concludes that Ms. Bonzon has not met her burden of proving that there is a reasonable medical basis for finding that she had moderate mitral regurgitation. Therefore, the Trust's denial of Ms. Bonzon's claim for Matrix Benefits and the related derivative claim submitted by her spouse is affirmed, he said. This ruling relates to SHEILA BROWN, et al. v. AMERICAN HOME PRODUCTS CORPORATION, CIVIL ACTION NO. 99-20593, NO. 2:16 MD 1203. ANGELA JENSEN, Claimant, represented by STEVEN L. BUNOSKI. JOANN READ, Claimant, represented by STEVEN L. BUNOSKI. JOYCE MAUDIE, Claimant, represented by: MICHAEL L. HODGES, Esq. HODGES LAW FIRM, CHARTERED 13420 Santa Fe Trail Drive Lenexa, KS 66215 USA Phone: 1-800-221-5560 Fax: 913-888-7100 CINDY SORENSON, Claimant, represented by: WAYNE H. BRAUNBERGER, Esq. BRAUNBERGER BOUD & DRAPER PC. 765 E 9000 S STE A-1 SANDY, UT 84094 AMERIGAS PARTNERS: UGI Continues to Face "Swigers" Lawsuit ---------------------------------------------------------- An insurance subsidiary of UGI Corporation continues to face a suit alleging violations of the West Virginia Insurance Unfair Trade Practice Act, according to Amerigas Partners, L.P.'s Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. In 2005, Samuel and Brenda Swiger (the "Swigers") filed what purports to be a class action in the Circuit Court of Harrison County, West Virginia, against UGI, an insurance subsidiary of UGI Corporation, certain officers of UGI and the General Partner, and their insurance carriers and insurance adjusters. In this lawsuit, the Swigers are seeking compensatory and punitive damages on behalf of the putative class for alleged violations of the West Virginia Insurance Unfair Trade Practice Act, negligence, intentional misconduct, and civil conspiracy. The Court has not certified the class and, in October 2008, stayed the lawsuit pending resolution of a separate, but related class action lawsuit filed against AmeriGas OLP in Monongalia County, which was settled in Fiscal 2011. The company believes it has good defenses to the claims in this action. BAYER CORP: Reed Smith Discusses Ascertainability in Class Action ----------------------------------------------------------------- Steven Boranian, Esq. at Reed Smith LLP reports that class actions are strange and dangerous things. A cornerstone of American jurisprudence is that the government (including its courts) cannot deprive people (such as our clients) of their property without due process of law. In civil litigation, the question of what process is "due" is easy, answered by the right to a jury trial in most instances. Defendants get to put plaintiffs to their burdens of proof, and defendants are generally guaranteed the opportunity to challenge that proof on an individual basis and introduce cases of their own, all before the court will invoke the power to the state to transfer wealth from one party to another, or not, depending on the proof and the verdict. Class actions turn this neat and impeccably fair model on its head. In a class action, one person presents his case alone, purporting to represent others "similarly situated," and the result can be binding on people who are complete strangers to the litigation. Depending on the outcome, absent class members can lose their right to pursue claims for their own benefit, even though they had no involvement and no voice in the proceeding. Worse yet, a defendant can be obligated to pay money to people -- maybe thousands of people -- who have done nothing to prove their entitlement to payment at the defendant's expense. We watched a little bit of the U.S. Open tennis tournament over the weekend, and the signature phrase of a great player turned broadcaster comes to mind: "You cannot be serious!" The rules underlying class actions, and particularly class certification, exist to protect against these travesties of justice. We all know the familiar quartet of numerosity of class members, commonality of issues, typicality of claims, and adequacy of representation. These requirements aim to ensure that a class action judgment cannot bind absent class members or force collective remedies on defendants without first guaranteeing that the class action is the worthwhile and best way to proceed. They also see that proof of one person's claim stands as a fair proxy for the absent many and that individual class representatives pursuing their individual interests do not sell out the absent class members. There are many other requirements -- a proper class definition, predominance of common issues, the superiority of a class action over other proceedings, manageability of a class action trial, fair and adequate notice, the opportunity to opt out. Together these rules protect defendants and absent class members against the obvious abuses that class actions invite, and they protect rights of a Constitutional dimension. That is why we find it genuinely disappointing, if not outrageous, when plaintiffs' lawyers treat class action rules as mere formalities, as though the class action procedure is a flexible tool they can twist and bend to ease or eliminate their burdens. A recent case from the Third Circuit gives us an outstanding treatment of yet another class action rule, one that does not often garner the limelight, but is critical nonetheless: Ascertainability of class membership. The marquee argument in opposition to class certification usually is that individual issues predominate over common issues, but we often argue in addition the plaintiffs' proposed class is not ascertainable. We recall one class action involving an implanted medical device where the plaintiffs defined their class as all patients treated with the device, excluding those with injuries "associated with" the device. In other words, you had to determine injury and causation for every patient just to figure out who would be the class. That was an ascertainability problem. Class certification denied. But back to the recent Third Circuit case. The only issue on appeal inCarrera v. Bayer Corporation, No. 12-2621, 2013 WL 4437225 (3d Cir. Aug. 21 2013), was whether the plaintiffs' proposed class was ascertainable, and while the district court had ruled that it was, the Third Circuit disagreed and reversed. The plaintiffs had purchased an over-the-counter diet supplement and filed a class action claiming remedies under the Florida Deceptive and Unfair Trade Practices Act. However, because the defendant did not sell the product directly to consumers, it had no list of purchasers, and consumers themselves were unlikely to have documentary proof of purchase either. Id. at *1. Again, the product was an OTC dietary supplement, but this issue arises with prescription drugs and medical devices all the time. Medical device manufacturers and particularly drug manufactures almost never know the identity of the end users of their products, nor do they usually have the ability to find out even if they wanted to. That is an ascertainability problem, but the district court certified a class of all persons who purchased the product in Florida anyway. To the district court, ascertainability presented "speculative issues with case management" that were insufficient to prevent class certification. Id. at *2. If you were wondering why we went on for a while at the beginning of this post about the importance of class certification rules, we were leading up to this holding. A class action cannot be fair and should not be certified if it is impossible to know who will be bound and who the defendant will be obligated to pay. This is not a mere issue of "case management," and if speculation is required to ascertain the scope of the class, that should be the end of the analysis. We fear that this district court was swayed by the prospect of capturing thousands of claims with the stroke of a pen, but the rules that protect absent class members and defendants alike simply do not permit it. The Third Circuit understood this and brought the analysis back to center. "[A]n essential prerequisite of a class action, at least with respect to actions under Rule 23(b)(3), is that the class must be currently and readily ascertainable based on objective criteria. . . . 'If class members are impossible to identify without extensive and individualized fact-finding or "mini- trials," then a class action is inappropriate.'" Id. at *2. The Third Circuit explained the rationale of this observation as follows: First, [the ascertainability requirement] eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action by insisting on the easy identification of class members. Second, it protects absent class members by facilitating the best notice practicable . . . . Third, it protects defendant by ensuring that those persons who will be bound by the final judgment are clearly identifiable. Id. at *3. The beauty of the Third Circuit's opinion is how it ties ascertainability to the plaintiffs' burdens and the importance of preserving the defendants' rights to a defense. According to the court, "A defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right of masks individual issues." Id. at *4. This is a due process issue, and ascertainability provides due process by allowing a defendant to test the reliability of the evidence submitted prove the class membership. The plaintiffs proposed two solutions. First, they argued that the class could be ascertained from retailer records of sales made with loyalty cards, holding out CVS as an example. The Third Circuit rejected this option because there was no evidence that a single class member could be identified through such records. Id. at *5. Maybe retailer records can prove class members in some cases, maybe they can't in others. Either way, this is a helpful reminder that plaintiffs bear the burden of proving the elements of class certification with evidence and that the district court is to apply a "rigorous analysis" to determine whether the requirements are met. Vague assurances that everything will work out in the end or that plaintiffs intend to meet Rule 23 in the future do not cut it. Second, the plaintiffs argued that class members could submit affidavits attesting to their purchases of the product, reasoning that class members "will be unlikely to submit fraudulent claims" and that the defendant's total liability was capped at its total sales of the product in any event. Id. at *6. We paraphrase this proposal as follows: "Just trust us. The most you have to lose is everything." The court correctly rejected this suggestion because it ignored that the defendant must be able to challenge the evidence, which a cold affidavit would not permit, and because fraudulent claims would harm both the defendant and "true class members" by diluting their potential recovery. Id at **6-7. A proposed "screening model" was likewise insufficient because it could not establish that the affidavits would be reliable either. Id. at *7. The Third Circuit vacated the order certifying the class and remanded to give the plaintiffs another opportunity to establish ascertainability. We cannot see why the court gave the plaintiffs a second chance, especially after so carefully dismantling the class in a published opinion. But let's hope that this proposed class never again sees the light of day. As we said at the outset, ascertainability does not get a lot of press, but we should consider it in every class action involving pharmaceutical products and medical devices. The Third Circuit has provided a very useful roadmap. BIOSANTE PHARMACEUTICALS: LibiGel-Related Suit May Be Amended ------------------------------------------------------------- Jack Bouboushian at Courthouse News Service reports that shareholders must amend their complaint against a drugmaker that allegedly exaggerated the performance of its drug to improve womens' sex drive. BioSante is a pharmaceutical company focused on developing products for female sexual health and oncology. Over the past decade, BioSante has been developing LibiGel, a drug designed to improve the sex drive of women suffering from female sexual dysfunction, specifically hypoactive sexual desire disorder ('HSDD'). LibiGel is a gel formulation of testosterone designed to be absorbed through the skin. Shareholders claim BioSante "consistently misled investors about the commercial viability, effectiveness, and market potential for LibiGel. Defendants boasted about LibiGel's efficacy over placebo, and provided supposedly concrete 'data' regarding the drug's 'statistically significant' effect on increasing the 'number of satisfying sexual events' for women suffering from HSDD. "These purportedly positive clinical trial results furthered defendants' claims of LibiGel being 'the most clinically advanced pharmaceutical product in the U.S.' Defendants raised investors' expectations by analogizing the female market for LibiGel to such blockbuster drugs as 'Viagra, Levitra, and Cialis,'" according to complaint. BioSante's share price reached a high of $3.81 in July 2011, before it revealed the drug was no more effective than a placebo, and shares fell to a low of $0.38 per share. But U.S. District Judge Joan Gottschall dismissed the complaint without prejudice last week, finding that plaintiffs' practice of italicizing or bolding phrases or sentences of large quoted blocks of text from defendant's public filings and press releases did not clearly indicate which statements were allegedly false or misleading. "It appears that the plaintiffs intend the court and the defendants to parse through their complaint in an attempt to: (1) locate reasons why the plaintiffs believe that the italicized/bolded statements are misleading; and (2) find specific facts corresponding to those statements that 'giv[e] rise to a strong inference that the defendant acted with the required state of mind.'. . . "The salient point is that the court cannot ascertain which allegations are meant to match up with the italicized/bolded portions of the complaint," the judge said. The effect of this method leaves the reader guessing as to which statements are challenged, and which are merely context or background, the court found. "The complaint is deficient as the court -- and BioSante -- should not have to speculate about the contours of the plaintiffs' fraud claims," Gottschall concluded. The shareholders were given 28 days to amend their complaint. The Plaintiff is represented by: Amelia Susan Newton, Esq. Leigh R. Lasky, Esq. Norman Rifkind, Esq. LASKY & RIFKIND, LTD. 351 West Hubbard Street, Suite 401 Chicago, IL 60654 Telephone: (312) 634-0057 E-mail: newton@laskyrifkind.com lasky@laskyrifkind.com rifkind@laskyrifkind.com The Defendants are represented by: David H. Kistenbroker, Esq. Ashley John Burden, Esq. Carl E. Volz, Esq. DECHERT LLP 77 West Wacker, Suite 3200 Chicago, IL 60601 Telephone: (312) 646-5800 E-mail: david.kistenbroker@dechert.com ashley.burden@dechert.com carl.volz@dechert.com The case is Lauria v. BioSante Pharmaceuticals, Inc. et al., Case No. 1:12-cv-00772, in the U.S. District Court for the Northern District of Illinois (Chicago). BLYTH INC: Still Faces Suit Filed by Shareholders in Connecticut ---------------------------------------------------------------- Blyth, Inc. continues to face a shareholder lawsuit filed against it in federal district court in Connecticut, according to the company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. The Company, certain of its officers, FVA Ventures, Inc. ("FVA"), ViSalus Holdings, LLC and ViSalus were named as defendants in a putative class action filed in federal district court in Connecticut on behalf of purchasers of the Company's common stock during the period March to November 2012. On June 3, 2013, the Company and the other defendants moved to dismiss the then-operative amended complaint. In lieu of responding to the motion to dismiss, plaintiff filed a second amended complaint, which is currently operative and names as defendants the Company, certain of its officers, ViSalus Holdings, LLC, ViSalus, and a ViSalus co-founder/promoter. The second amended complaint, which seeks unspecified damages and asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, alleges certain misstatements and omissions by certain defendants, including concerning ViSalus's operations and prospects, and further alleges that certain defendants engaged in a fraudulent or deceptive "scheme." The Company believes that it has meritorious defenses to the claims asserted against it and it intends to defend itself vigorously. The company cannot state with certainty, however, what will be the eventual outcome of the currently pending matters. BOEING COMPANY: 401(k) Plan Participants Get Class Certification ---------------------------------------------------------------- Nationally recognized attorneys at Schlichter, Bogard & Denton, LLP have successfully obtained class certification for participants in the Boeing Company 401(k) Plan, one of the largest in the United States, regarding claims that the Plan had excessive fees and imprudent investments. The decision in Spano v. Boeing Co., Case No. 06-743 (S.D.Ill.) follows the Seventh Circuit's recent ruling that a similar claim on behalf of participants in another large 401(k) plan was suitable for class action treatment, Abbott v. Lockheed Martin Corp., No. 12-3736 (7th Cir. Aug. 7, 2013) On September 19, 2013, Chief Judge David R. Herndon of the United States District Court for the Southern District of Illinois granted class certification to participants in the Boeing 401(k) Plan, regarding claims that Boeing personnel responsible for managing the plan breached their fiduciary duties under the Employee Retirement Income Security Act ("ERISA"), by: (1) causing the Plan to pay unreasonable and excessive administrative fees to its recordkeeper, CitiStreet; (2) squandering the Plan's massive bargaining power by including certain retail mutual funds in the Plan which charged excessive fees and paid revenue sharing "kickbacks" to CitiStreet, instead of superior, low-cost institutional investments that were available to the Plan; (3) including an undiversified and imprudent Technology Fund in the Plan; (4) selecting an imprudent Small Cap Fund, which Boeing included in the Plan in order to further its corporate relationship with the fund manager, State Street, by allowing it to collect grossly excessive fees from the fund; and (5) imprudently holding high levels of low-yielding cash and allowing State Street to collect multiple layers of fees for "managing" the Boeing Company Stock Fund. Spano v. Boeing, Case No. 06-743 (S.D.Ill.). According to the firm's founding partner, who is handling the case, Jerome Schlichter,"the ruling is a victory for 401(k) investors concerned about having a meaningful retirement plan." Mr. Schlichter also stated, "The case will now proceed for all the employees and retirees plan participants who allegedly suffered harm from Boeing's behavior." The Boeing case was one of a number of cases filed by Schlichter, Bogard & Denton, which launched the field of 401(k) fiduciary breach litigation for excessive fees. After years of litigation, Schlichter, Bogard, & Denton recently won a $50 million judgment from ABB and Fidelity in a case on behalf of ABB employees and retirees in ABB's 401(k) plan, after the first full trial of a 401(k) excessive fee claim in the country. Tussey v. ABB, Inc., Case No. 06-4305 (W.D. Mo.) The firm has also settled cases on behalf of participants in the 401(k) plans of Cigna, Caterpillar, General Dynamics, Kraft Foods, and Bechtel totaling over $90 million. Nolte v. Cigna Corp., Case No. 07-2046 (C.D.Ill.); Martin v. Caterpillar, Inc., Case No. 07-1009 (C.D.Ill.); Will v. General Dynamics Corp., Case No. 06-698 (S.D.Ill.); Kanawi v. Bechtel Corp., Case No. 06-5566 (N.D.Ca.); George v. Kraft Foods Global, Inc., Case Nos. 07-1713 & 08-3799 (N.D.Ill.). The recent $35 million Cigna 401(k) plan settlement is the largest ever for 401(k) plan investors. About Schlichter, Bogard & Denton, LLP Schlichter, Bogard & Denton, LLP is a national law firm that represents individuals, including 401(k) plan investors, whose plans suffer from excessive fees or imprudent investment options. Its attorneys are dedicated to helping employees and retirees secure the retirement benefits they deserve. CARGILL INC: Settles Class Action Over Truvia Natural Claims ------------------------------------------------------------ Jeff Gelski, writing for Food Business News, reports that Cargill argued that erythritol, a bulk sweetener, is natural and not produced from bioengineered corn while agreeing to a settlement in a court case involving natural claims for Cargill's Truvia sweeteners. Truvia contains erythritol, stevia leaf extracts and natural flavors. Erythritol has become a common complementary sweetener to stevia plant extracts, which are high-intensity sweeteners. Food and beverage companies may believe the combination of erythritol and stevia allows their finished products to retain all-natural status. In the Sept. 19 filing in the U.S. District court for the district of Minnesota, Cargill agreed to pay a total of $5.3 million although the Wayzata, Minn.-based company denied that its marketing, advertising and/or labeling of Truvia consumer products is false, deceptive or misleading to consumers or violates any legal requirement. Cargill said it wanted to avoid the time and expenses associated with further litigation. Erythritol is the largest ingredient by weight in Truvia natural sweeteners. It provides bulk and sugar-like crystalline appearance. Erythritol is produced through a natural fermentation process, Cargill said. "The erythritol used in in Truvia natural sweetener is produced by a yeast organism that is found in nature," Cargill said. "The yeast ferments or digests dextrose and other nutrients. In other words, dextrose is the food for the yeast, much like corn may be food for a cow that produces meat or milk. The dextrose used as the feedstock for the yeast is a simple sugar that is derived from the starch component of U.S.-grown corn. "Although genetically enhanced corn and non-transgenic corn are grown in the U.S. today, erythritol is not derived from corn or dextrose feedstock (just as milk is not derived from cattle feed). It is derived from the yeast organism. Erythritol is not genetically modified and does not contain any genetically modified proteins." Cargill did agree to modify the description of erythritol on all Truvia consumer product packaging to the following phrase or similar phrase: "Erythritol is a natural sweetener, produced by a fermentation process. Erythritol is also found in fruits like grapes and pears." The current phrase, which will be replaced, is, "Erythritol is a natural sweetener, produced by a natural process, and is also found in fruits like grapes and pears." The lawsuit's origin dates to Feb. 12 when plaintiff Molly Martin alleged in the Hennepin county, Minnesota state district court that she bought Truvia products and was deceived by label statements claiming the products were natural. She alleged the products were not natural because they contained ingredients that were "highly processed" and/or derived from bioengineered ingredients. Lauren Barry made a similar allegation against the products in California. On Sept. 18 Ms. Martin and Ms. Barry filed the action Martin, et al. v. Cargill, Inc., in the U.S. District Court for the District of Minnesota on a proposed nationwide class. The Sept. 19 filing involves an agreement that would encompass any related actions. Related actions would include, but not be limited to, a lawsuit filed July 8 in Hawaii with Denise Howerton as the plaintiff and Cargill as the defendant. Under the agreement reached in the Sept. 19 filing, Cargill has agreed to establish an administrative fund of $300,000 and a settlement fund of $5 million. The settlement fund would include voucher redemptions for 40-count and 80-count packages of Truvia natural sweetener packets and any sizes of the Truvia natural sweetener spoonable jars and baking blends. Cargill also would modify Truvia consumer products labels and the Truvia consumer products web site. Cargill would modify the tag line "Nature's Calorie-Free Sweetener" on certain areas of its packet boxes and spoonable jar labels in one of two ways, in combination or alone, at Cargill's discretion. One option involves adding an asterisk after the tag line. The asterisk will reference "*For more information about our ingredients go to Truvia.com/FAQ." Another option involves changing "Nature's Calorie Free Sweetener" on all Truvia natural sweetener packaging to a similar phrase such as "Calorie-Free Sweetener From the Stevia Leaf" or "Calorie-Free Sweetener from Stevia" or "Calorie-Free Sweetness from the Stevia Leaf" or "Calorie-Free Sweetness from Stevia." CARRIAGE SERVICES: "Leathermon" Suit Discovery Will Now Proceed --------------------------------------------------------------- Carriage Services, Inc. said in its August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013, that discovery in the class action lawsuit filed by Leathermon, et al., will now proceed. On August 17, 2007, five plaintiffs filed a putative class action against the current and past owners of Grandview Cemetery in Madison, Indiana, including the Company's subsidiaries that owned the cemetery from January 1997 until February 2001, on behalf of all individuals who purchased cemetery and burial goods and services at Grandview Cemetery. The lawsuit is captioned Leathermon, et al. v. Grandview Memorial Gardens, Inc., et al., United States District Court, Southern District of Indiana, Case No. 4:07-cv-137. The Plaintiffs are seeking monetary damages and claim that the cemetery owners performed burials negligently, breached Plaintiffs' contracts and made misrepresentations regarding the cemetery. The Plaintiffs also allege that the claims occurred prior, during and after the Company owned the cemetery. On October 15, 2007, the case was removed from Jefferson County Circuit Court, Indiana to the Southern District of Indiana. On April 24, 2009, shortly before the Defendants had been scheduled to file their briefs in opposition to the Plaintiffs' motion for class certification, the Plaintiffs moved to amend their complaint to add new class representatives and claims, while also seeking to abandon other claims. The Company, as well as several other Defendants, opposed the Plaintiffs' motion to amend their complaint and add parties. In April 2009, two Defendants moved to disqualify the Plaintiffs' counsel from further representing the Plaintiffs in this action. On June 30, 2010, the Court granted the Defendants' motion to disqualify the Plaintiffs' counsel. In that order, the Court gave the Plaintiffs 60 days within which to retain new counsel. On May 6, 2010, the Plaintiffs filed a petition for writ of mandamus with the Seventh Circuit Court of Appeals seeking relief from the trial court's order of disqualification of counsel. On May 19, 2010, the Defendants responded to the petition of mandamus. On July 8, 2010, the Seventh Circuit denied the Plaintiffs' petition for writ of mandamus. Thus, pursuant to the trial court's order, the Plaintiffs were given 60 days from July 8, 2010, in which to retain new counsel to prosecute this action on their behalf. The Plaintiffs retained new counsel and the trial court granted the newly retained Plaintiffs' counsel 90 days to review the case and advise the Court whether or not Plaintiffs would seek leave to amend their complaint to add and/or change the allegations as are currently stated therein and whether or not they would seek leave to amend the proposed class representatives for class certification. The Plaintiffs moved for leave to amend both the class representatives and the allegations stated within the complaint. The Defendants filed oppositions to such amendments. The Court issued an order permitting the Plaintiffs to proceed with amending the class representatives and a portion of their claims; however, certain of Plaintiffs' claims have been dismissed. Discovery in this matter will now proceed. The Company says it intends to defend this action vigorously. Because the lawsuit is in its preliminary stages, the Company is unable to evaluate the likelihood of an unfavorable outcome to the Company or to estimate the amount or range of any potential loss, if any, at this time. Carriage Services, Inc. -- http://www.carriageservices.com/-- was incorporated in Delaware in 1993 and is based in Houston, Texas. The Company is a provider of death care services and merchandise in the United States, such as funeral and cemetery services and products on both an "at-need" (time of death) and "preneed" (planned prior to death) basis. COLORADO: Class Action Challenges COGCC's Constitutionality ----------------------------------------------------------- John Colson, writing for PostIndependent.com, reports that a planned class action lawsuit is being prepared by two local critics of the oil and gas industry, who hope to challenge the constitutionality of the Colorado Oil and Gas Conservation Commission (COGCC). The two, former oil and gas industry employee Carl McWilliams of Silt and political activist Anita Sherman of Glenwood Springs, on Friday submitted to Colorado Attorney General John Suthers and Daniel Domenico, the state's solicitor general, a formal "Notice of Intent" to file a federal class action suit against Colorado Gov. John Hickenlooper, alleging that the statutes creating the COGCC are in violation of the Colorado Constitution and the U.S. Constitution. Mr. McWilliams, who was severely injured while working at a gas drilling rig in 2009, has long maintained that the oil and gas industry is acting irresponsibly in drilling for gas near homes, schools and towns before the full effect of those drilling activities are known through scientific testing. Ms. Sherman, a former officer of the local Democratic Party, has been an active opponent of some oil and gas industry practices. The draft text of the suit cites a 1992 Colorado Supreme Court finding that the City of Greeley could not legally prevent oil and gas exploration within the city's boundaries, even though the city's electorate had approved an ordinance banning such industry activities. By ruling that the COGCC's rules and regulations took precedence over the rights of the electorate of a home rule city, as Greeley was and is, the draft lawsuit argues, the court failed to uphold a basic tenet of constitutional law. That tenet, according to the draft lawsuit, holds that citizens of the state and the country have "inalienable" right to vote on and make decisions about issues facing their communities, and that the ruling by the Supreme Court essentially invalidates that right in favor of the needs of the oil and gas industry. The Supreme Court, according to the suit, has effectively acted to rescind the rights and powers of home rule communities, and put the COGCC's powers above those of the electorate. According to the suit, it is being filed as a class action on behalf of more than five million Colorado residents. The plaintiffs, according to Ms. Sherman, already have received promises of support and participation by others who have similar views, although Ms. Sherman did not name any of those making the promises. "There are significant monetary costs associated with this lawsuit," Ms. Sherman wrote in an email. "As stated in the working draft this is a citizens federal class action by "We the People of Colorado" for federal court Judicial Review of the COLORADO OIL & GAS CONSERVATION ACT which created the COGCC," she continued. "Dozens of concerned citizens are pledging and donating money to have their names on this historic federal class action lawsuit," wrote Ms. Sherman in an e-mail. COLORTYME INC: Loses Bid to Dismiss "Spy" Program Class Action -------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that an invasion of privacy claim involving the alleged interception and transmission of a Washington state woman's emails and communications by a company in Pennsylvania -- via a "spy" program on a rent-to-own computer -- cannot be dismissed based on lack of jurisdiction, a federal judge in Pennsylvania has ruled. In the proposed class action Arrington v. ColorTyme, U.S. District Judge Cathy Bissoon of the Western District of Pennsylvania ruled that a motion to dismiss made by CMG Rentals LLC, a franchisee of ColorTyme Inc., should be denied because the allegedly intercepted communications were transmitted to the now-defunct company DesignerWare LLC, formerly in Pennsylvania, putting the case within the realm of the court's jurisdiction. Judge Bissoon wrote in her opinion that the business relationship between CMG and DesignerWare, the company that sold the activity- monitoring program PC Rental Agent to CMG, was substantial enough to warrant jurisdiction in Pennsylvania. "Although CMG's contacts with Pennsylvania occurred solely through electronic media, they are sufficient to establish the type of 'continuing obligations' that permit the exercise of personal jurisdiction in a manner consistent with the 14th Amendment," Judge Bissoon said. Plaintiff Leslie Arrington, a resident of Clarkston, Wash., alleged that on March 11, 2011, she entered a rent-to-own agreement with CMG for a laptop computer at CMG's Clarkston retail location, according to Judge Bissoon. At the time of the agreement, Arrington was unaware that the PC Rental Agent program was installed on the computer. Arrington explained that the program permits the installer to remotely initiate a "detective mode" over the Internet, allowing the installer to choose from multiple levels of surveillance upon the computer, according to Judge Bissoon. Some of the varieties of surveillance include taking photographs with the computer's webcam, recording keystrokes and capturing screen shots. In her complaint, according to Judge Bissoon, Arrington said that once DesignerWare obtained information through the detective mode, it stored it in the DesignerWare servers in Pennsylvania and relayed the information to the licensee who activated the product, sometimes as often as every two minutes. Judge Bissoon said that the defendants' motion to dismiss was based in part on language found in Federal Rule of Civil Procedure 12(b)(2), relating to personal jurisdiction. Gary C. Hughes, a principal of CMG, said in an affidavit that the company had "never acted in concert with DesignerWare except as a customer," according to Judge Bissoon, and that CMG never used the detective mode feature on any of its leased computers. Judge Bissoon said that the affidavit did not explain what Hughes' duties were at CMG, nor did it describe his experience with PC Rental Agent, but it did claim that CMG had never conducted business in Pennsylvania, nor had any of its employees ever visited DesignerWare in Pennsylvania. "The essential thrust of the affidavit is that CMG never engaged in any injurious conduct toward [Arrington], and that none of the ill effects of ColorTyme's arrangement with DesignerWare can be traced back to CMG because it never used the software to intercept private information," Judge Bissoon said. "CMG has not submitted any additional evidence, however, to corroborate the factual assertions in Mr. Hughes' affidavit." However, CMG admitted that it purchased the PC Rental Agent software from DesignerWare, an admission that, according to Bissoon, puts CMG at odds with its claims that it has never done business with the formerly Pennsylvania-based company. Judge Bissoon also contended that CMG's conduct was more than just a series of random intervals of surveillance. "Although CMG's method of contacting Pennsylvania may have been remote and spatially imperceptible, the benefit CMG stood to obtain from its contacts certainly was not," she said. Judge Bissoon explained that by contacting DesignerWare in Pennsylvania through PC Rental Agent, CMG allegedly could, whenever it wanted and for whatever reason, acquire its customers' private communications and other data. Additionally, Judge Bissoon cited Burger King v. Rudzewicz, in which the U.S. Supreme Court said that "parties who reach out beyond one state and create continuing relationships with the citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities." Arrington also claimed that the alleged collaboration between the defendants not only violated her privacy under the Electronic Communications Privacy Act, but also constituted a civil conspiracy, according to Judge Bissoon. Judge Bissoon said that in response to Arrington's allegations, "CMG has issued only general unsubstantiated denial with no evidentiary support" and that those denials were not enough to effectively challenge the court's jurisdiction in the matter. Arrington's attorney, Frederick S. Longer -- flonger@lfsblaw.com -- of Levin, Fishbein, Sedran & Berman in Philadelphia, said he was "extraordinarily pleased" that the court denied the motion to dismiss. "I think it bears repeating that the activities that the defendant engaged in are a criminal act, albeit with a civil remedy," Mr. Longer said. "Their reprehensible conduct needs to be addressed." Mr. Longer said that the case would be moving into the class- certification phase in October. The attorneys for the defendants did not return calls seeking comment. EDWARDS LIFESCIENCES: Accused of Misleading Shareholders -------------------------------------------------------- Shaun McCracken, Individually and On Behalf of All Others Similarly Situated v. Edwards Lifesciences Corp., Michael A. Mussallem, and Thomas M. Abate, Case No. 8:13-cv-01463-JST-RNB (C.D. Cal., September 18, 2013) is a securities fraud class action lawsuit brought on behalf of purchasers of the Company's common stock between April 25, 2012, and April 23, 2013. The Defendants made false and misleading statements and concealed material information relating to the prospects, projected sales and adoption of the Company's Edwards SAPIEN transcatheter aortic heart valve, and related projections of financial performance for the Company's operations, the Plaintiff alleges. As a result of the Defendants' false statements and omissions, the Plaintiff contends, the Company's common stock traded at artificially inflated prices during the Class Period. Shaun McCracken purchased the publicly traded common stock of Edwards Lifesciences at artificially inflated prices during the Class Period. Edwards Lifesciences is a Delaware corporation headquartered in Irvine, California. Edwards Lifesciences is a medical device maker that designs and markets, among other things, artificial heart valves for implantation in patients with advance cardiovascular disease. The Company designed the SAPIEN valve and the related delivery systems for patients with certain risk factors that make traditional surgery inadvisable. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Lionel Zevi Glancy, Esq. Michael M. Goldberg, Esq. Robert Vincent Prongay, Esq. GLANCY BINKOW AND GOLDBERG LLP 1925 Century Park East Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mmgoldberg@glancylaw.com rprongay@glancylaw.com - and - Christopher J. Keller, Esq. Michael W. Stocker, Esq. Rachel A. Avan, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: ckeller@labaton.com mstocker@labaton.com ravan@labaton.com ENERGY TRANSFER: Atty. Fees in Sunoco Merger Suits Paid in July --------------------------------------------------------------- The payment of $950,000 in attorneys' fees in lawsuits arising from the Sunoco Merger was made in July 2013, according to Energy Transfer Partners, L.P.'s August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On October 5, 2012, Sam Acquisition Corporation, a Pennsylvania corporation and a wholly-owned subsidiary of Energy Transfer Partners, L.P. ("Energy Transfer Partners," the "Partnership," or "ETP"), completed its merger with Sunoco, Inc. (the "Sunoco Merger"). Under the terms of the merger agreement, Sunoco shareholders received a total of approximately 55 million ETP Common Units and $2.6 billion in cash. Following the announcement of the Sunoco Merger on April 30, 2012, eight putative class action and derivative complaints were filed in connection with the Sunoco Merger in the Court of Common Pleas of Philadelphia County, Pennsylvania. Each complaint names as defendants the members of Sunoco's board of directors and alleges that they breached their fiduciary duties by negotiating and executing, through an unfair and conflicted process, a merger agreement that provides inadequate consideration and that contains impermissible terms designed to deter alternative bids. Each complaint also names as defendants Sunoco, ETP, Energy Transfer Partners GP, L.P. ("ETP GP," the general partner of ETP), Energy Transfer Partners, L.L.C. ("ETP LLC," the general partner of ETP GP) and Sam Acquisition Corporation, alleging that they aided and abetted the breach of fiduciary duties by Sunoco's directors; some of the complaints also name Energy Transfer Equity, L.P. ("ETE," a publicly traded partnership and the owner of ETP LLC) as a defendant on those aiding and abetting claims. In September 2012, all of these lawsuits were settled with no payment obligation on the part of any of the defendants following the filing of Current Reports on Form 8-K that included additional disclosures that were incorporated by reference into the proxy statement related to the Sunoco Merger. Subsequent to the settlement of these cases, the plaintiffs' attorneys sought compensation from Sunoco for attorneys' fees related to their efforts in obtaining these additional disclosures. In January 2013, Sunoco entered into agreements to compensate the plaintiffs' attorneys in the state court actions in the aggregate amount of not more than $950,000 and to compensate the plaintiffs' attorneys in the federal court action in the amount of not more than $250,000. The payment of $950,000 was made in July 2013. Energy Transfer Partners, L.P. -- http://www.energytransfer.com/ -- a Delaware limited partnership, is one of the largest publicly traded master limited partnerships in the United States in terms of equity market capitalization. The Company, which is headquartered in Dallas, Texas, is managed by its general partner, Energy Transfer Partners GP, L.P., and ETP GP is managed by its general partner, Energy Transfer Partners, L.L.C., which is owned by Energy Transfer Equity, L.P., another publicly traded master limited partnership. The Company's activities, which are conducted through its wholly owned operating subsidiaries include natural gas operations, transportation of natural gas liquids, storage and fractionation services and refined product and crude oil operations. ENERGY TRANSFER: Discovery in Southern Union Merger Suit Ongoing ---------------------------------------------------------------- Discovery is ongoing in the consolidated class action lawsuit arising from the Southern Union Merger, according to Energy Transfer Partners, L.P.'s August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. In June 2011, several putative class action lawsuits were filed in the Judicial District Court of Harris County, Texas, naming as defendants the members of the Southern Union Board, as well as Southern Union Company and Energy Transfer Equity, L.P. ("ETE"). The lawsuits were styled Jaroslawicz v. Southern Union Company, et al., Cause No. 2011-37091, in the 333rd Judicial District Court of Harris County, Texas and Magda v. Southern Union Company, et al., Cause No. 2011-37134, in the 11th Judicial District Court of Harris County, Texas. The lawsuits were consolidated into an action styled In re: Southern Union Company; Cause No. 2011-37091, in the 333rd Judicial District Court of Harris County, Texas. The Plaintiffs allege that the Southern Union directors breached their fiduciary duties to Southern Union's stockholders in connection with the Merger and that Southern Union and ETE aided and abetted the alleged breaches of fiduciary duty. The amended petitions allege that the Merger involves an unfair price and an inadequate sales process, that Southern Union's directors entered into the Merger to benefit themselves personally, including through consulting and noncompete agreements, and that defendants have failed to disclose all material information related to the Merger to Southern Union stockholders. The amended petitions seek injunctive relief, including an injunction of the Merger, and an award of attorneys' and other fees and costs, in addition to other relief. On October 21, 2011, the court denied ETE's October 13, 2011 motion to stay the Texas proceeding in favor of cases pending in the Delaware Court of Chancery. Also in June 2011, several putative class action lawsuits were filed in the Delaware Court of Chancery naming as defendants the members of the Southern Union Board, as well as Southern Union and ETE. Three of the lawsuits also named Merger Sub as a defendant. These lawsuits are styled: Southeastern Pennsylvania Transportation Authority, et al. v. Southern Union Company, et al., C.A. No. 6615-CS; KBC Asset Management NV v. Southern Union Company, et al., C.A. No. 6622-CS; LBBW Asset Management Investment GmbH v. Southern Union Company, et al., C.A. No. 6627- CS; and Memo v. Southern Union Company, et al., C.A. No. 6639-CS. These cases were consolidated with the following style: In re Southern Union Co. Shareholder Litigation, C.A. No. 6615-CS, in the Delaware Court of Chancery. The consolidated complaint asserts similar claims and allegations as the Texas state-court consolidated action. On July 25, 2012, the Delaware plaintiffs filed a notice of voluntary dismissal of all claims without prejudice. In the notice, plaintiffs stated their claims were being dismissed to avoid duplicative litigation and indicated their intent to join the Texas case. The Texas case remains pending, and discovery is ongoing. Energy Transfer Partners, L.P. -- http://www.energytransfer.com/ -- a Delaware limited partnership, is one of the largest publicly traded master limited partnerships in the United States in terms of equity market capitalization. The Company, which is headquartered in Dallas, Texas, is managed by its general partner, Energy Transfer Partners GP, L.P., and ETP GP is managed by its general partner, Energy Transfer Partners, L.L.C., which is owned by Energy Transfer Equity, L.P., another publicly traded master limited partnership. The Company's activities, which are conducted through its wholly owned operating subsidiaries include natural gas operations, transportation of natural gas liquids, storage and fractionation services and refined product and crude oil operations. ENERGY TRANSFER: Unit Continues to Defend "Price" Class Suit ------------------------------------------------------------ Will Price, an individual, filed actions in the U.S. District Court for the District of Kansas for damages against a number of companies, including Panhandle Eastern Pipe Line Company, LP, alleging mis-measurement of natural gas volumes and Btu content, resulting in lower royalties to mineral interest owners. Panhandle's parent, Southern Union Company, is a subsidiary of Energy Transfer Partners, L.P. On September 19, 2009, the Court denied plaintiffs' request for class certification. The Plaintiffs have filed a motion for reconsideration, which the Court denied on March 31, 2010. Panhandle believes that its measurement practices conformed to the terms of its Federal Energy Regulatory Commission ("FERC") natural gas tariffs, which were filed with and approved by the FERC. As a result, Southern Union believes that it has meritorious defenses to the Will Price lawsuit (including FERC-related affirmative defenses, such as the filed rate/tariff doctrine, the primary/exclusive jurisdiction of the FERC, and the defense that Panhandle complied with the terms of its tariffs). Panhandle will continue to vigorously defend the case. Southern Union believes it has no liability associated with this proceeding. No further updates were reported in the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Energy Transfer Partners, L.P. -- http://www.energytransfer.com/ -- a Delaware limited partnership, is one of the largest publicly traded master limited partnerships in the United States in terms of equity market capitalization. The Company, which is headquartered in Dallas, Texas, is managed by its general partner, Energy Transfer Partners GP, L.P., and ETP GP is managed by its general partner, Energy Transfer Partners, L.L.C., which is owned by Energy Transfer Equity, L.P., another publicly traded master limited partnership. The Company's activities, which are conducted through its wholly owned operating subsidiaries include natural gas operations, transportation of natural gas liquids, storage and fractionation services and refined product and crude oil operations. FARM BOY 2012: Recalls Plain Croissants Over Undeclared Allergens ----------------------------------------------------------------- Starting date: September 24, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Egg, Allergen - Milk Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Farm Boy 2012 Inc. Distribution: Ontario Extent of the product distribution: Retail Affected products: Farm Boy Plain Croissants that is sold in packages of 6 units (300 g) with packed on date from 2013.SE.20 to 2013.SE.23, inclusive. The Canadian Food Inspection Agency (CFIA) and Farm Boy 2012 Inc. are warning people with allergies to eggs and milk not to consume the Farm Boy brand Plain Croissants. The affected product contains egg and milk which are not declared on the label. This product was sold only at Farm Boy, 499 Terry Fox Drive, Kanata, ON. There has been one reported illness associated with the consumption of this product. Consumption of this product may cause a serious or life- threatening reaction in persons with allergies to eggs and milk. The retailer, Farm Boy 2012 Inc., Ottawa, ON, is voluntarily recalling the affected product from the marketplace. The CFIA is monitoring the effectiveness of the recall. FRITO-LAY: Court Narrows Claims in Deceptive Labeling Suit ---------------------------------------------------------- In the consolidated multi-district litigation -- IN RE FRITO-LAY NORTH AMERICA, INC. ALL NATURAL LITIGATION -- plaintiffs bring a putative class action grounded in various federal and state-law claims, alleging that defendant Frito-Lay North America Inc., and its parent company, defendant PepsiCo, Inc., deceptively labeled and marketed as "All Natural" various Tostitos, SunChips, and Fritos Bean Dip products when, in fact, the products contained unnatural, genetically-modified organisms. Before the Court are defendants' motions to dismiss, and to take judicial notice of certain documents in support of their motion to dismiss. In an August 29, 2013 Memorandum & Order available at http://is.gd/NaeUEBfrom Leagle.com, District Judge Roslynn R. Mauskopf granted the motion to take judicial notice, and granted in part and denied in part the motion to dismiss as follows: 1. All claims against defendant PepsiCo are dismissed without prejudice; 2. The Magnuson-Moss Warranty Act claim (Count I) is dismissed with prejudice; 3. The New York General Business Law claims (Counts II and III) are dismissed with prejudice only as to non-New York plaintiffs; 4. The New York warranty claim (Count VIII) is dismissed with prejudice only as to non-New York plaintiffs. This claim is otherwise dismissed without prejudice; 5. The Florida warranty claim (Count X) is dismissed without prejudice; 6. The New York intentional misrepresentation claim (Count XI) is dismissed with prejudice only as to non-New York plaintiffs. This claim is otherwise dismissed without prejudice; 7. The California and Florida intentional misrepresentation claims (Counts XII and XIII) are dismissed without prejudice; 8. To the extent the Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and Florida Deceptive and Unfair Trade Practices Act claims (Counts IV, V, VI, and VII) are predicated on "All Natural" representations appearing anywhere other than on the products' packaging, the claims are dismissed without prejudice; and 9. All other claims shall proceed consistent with the Memorandum and Order. The case is In re Frito-Lay North America, Inc. All Natural Litigation United States District Court, E.D. New York, NO. 12-MD- 2413 (RRM)(RLM). Alyssa Schwartz, Plaintiff, represented by Benjamin Michael Lopatin -- lopatin@hwrlawoffice.com -- The Law Offices of Howard W. Rubinstein, P.A. and: Larry De-Wayne Layfield, Esq. Law Office of L. DeWayne Layfield Beaumont, TX 77701-2228, 0801724431 Julie Gengo, Plaintiff, represented by Andrei V Rado, Milberg LLP, Ariana J. Tadler, Milberg LLP, David E Azar, Milberg LLP & Henry Jan Kelston, Milberg LLP. Chris Shake, Plaintiff, represented by Kim Richman, Reese Richman LLP & Michael Robert Reese, Reese Richman LLP. Valarie Zuro, Plaintiff, represented by Julio Ramos, Law Office of Julio Ramos & Paul E. Dans, Law Office of Paul E. Dans. David Foust, Plaintiff, represented by Angela Valentina Arango- Chaffin, Chaffin Law Firm & Howard W Rubinstein, The Law Officers of Howard W. Rubinstein. Steve Berkowitz, Plaintiff, represented by Angela Valentina Arango-Chaffin, Chaffin Law Firm & Howard W Rubinstein, The Law Officers of Howard W. Rubinstein. Kelli Altman, Plaintiff, represented by Joshua Harris Eggnatz, The Eggnatz Law Firm. Kimberly Fleishman, Plaintiff, represented by Eric C. Brunick, Freed & Weiss LLC. Dennis Patrick, Plaintiff, represented by Reginald Von Terrell, The Terrell Law Group. William Roman, Plaintiff, represented by Eric C. Brunick, Freed & Weiss LLC. Allan Mooney, Plaintiff, represented by Paul R Hansmeier, Class Action Justice Institute LLC. Stayce Deaton, Plaintiff, represented by Scott E. Poynter, Emerson Poynter LLP & William Thomas Crowder, Emerson Poynter LLP. Frito-Lay North America, Inc., Defendant, represented by Andrew Santo Tulumello, Gibson Dunn & Crutcher LLP, Benjamin E Gurstelle, Briggs & Morgan, PA, Casey Reeder Lennox, Chad W. Pekron, Quattlebaum Grooms Tull & Burrow PLLC, Christopher Chorba, Gibson Dunn and Crutcher LLP, Jason Robert Meltzer, Gibson, Dunn & Crutcher LLP, Jenna Musselman Yott, Gibson Dunn & Crutcher LLP, Molly E. Thompson, Dykema Gossett PLLC, Robert Maurice Fulton, Hill Ward & Henderson, Robert Ryan Younger, Quattlebaum Grooms Tull Burrow PLLC, Steven W. Quattlebaum, Quattlebaum, Grooms, Tull & Burrow PLLC, Thomas Raymond Hill, Dykema Gossett PLLC & Troy J Hutchinson, Briggs & Morgan, PA. Pepsico Inc, Defendant, represented by Andrew Santo Tulumello, Gibson Dunn & Crutcher LLP, Benjamin E Gurstelle, Briggs & Morgan, PA, Chad W. Pekron, Quattlebaum Grooms Tull & Burrow PLLC, Jason Robert Meltzer, Gibson, Dunn & Crutcher LLP, Robert Ryan Younger, Quattlebaum Grooms Tull Burrow PLLC, Steven W. Quattlebaum, Quattlebaum, Grooms, Tull & Burrow PLLC & Troy J Hutchinson, Briggs & Morgan, PA. GARDEN FRESH: Expands Recall to Specific Product Packages --------------------------------------------------------- Garden-Fresh Foods is initiating an expansion to its voluntary recall on various ready-to-eat salads, slaw, and dip products sold under various brands and code dates. The products may be contaminated with Listeria monocytogenes, an organism that can cause serious and sometimes-fatal infections in young children, frail or elderly people, and others with weakened immune systems. Although healthy individuals may suffer only short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, Listeria infection can cause miscarriages and stillbirths among pregnant women. Products are sold in various size containers (6oz to 18oz packages). The products were distributed in the following states: WI, MN, IA, IL, OH, IN, TX, FL, MA, MO, MI, PA, AZ, CA, and distributed to retail stores and food services. Consumers who have purchased any of the suspect products are urged to return it to the place of purchase for a full refund. Currently there has been no illness or complaints related to this recall. Consumers with questions may contact the company at 1-800-645-3367 Monday through Friday between the hours 8:00AM- 4:30 PM Products included in this recall: -- 16 oz Market Pantry Macaroni Salad; -- 16 oz Market Pantry Mustard Potato Salad; -- 16 oz Market Pantry American Style Potato Salad; -- 15 oz Market Pantry Coleslaw; -- 14 oz Market Pantry Italian Style Pasta Salad; -- 16 oz Market Pantry Baked Beans; -- 12 oz Market Pantry Tuna Salad; -- 12 oz.Market Pantry All White Meat Chicken Salad; -- 12 oz.Market Pantry Egg Salad; -- 16 oz Market Pantry Reduced Fat Macaroni Salad; -- 16 oz Market Pantry Reduced Fat Mustard Potato Salad; -- 16 oz Market Pantry Reduced Fat American Potato Salad; -- 15 oz Market Pantry Reduced Fat Coleslaw; -- 16 oz Archer Farms Steakhouse Potato; -- 8 oz Archer Farms Steakhouse Potato; -- 11 oz Archer Farms Artichoke Spinach Dip; -- 18 oz Archer Farms Artichoke Spinach Dip; -- 11 oz Archer Farms Smoked Salmon Dip; -- 16 oz Archer Farms Rotisserie Chicken Salad; -- 6 oz Archer Farms Rotisserie Chicken Salad; -- 11 oz Archer Farms Bacon Parmesan Dip; -- 11 oz Archer Farms Spinach Dip; -- 18 oz Archer Farms Spinach Dip; -- 11 oz Archer Farms Feta & Roasted Red Pepper Dip; -- 12 oz Archer Farms Vanilla CrŠme Dip -- 14 oz D'Amico and Sons Chicken Salad with Rosemary; -- 14 oz D'Amico and Sons Chicken & Dried Cherry Pasta; -- 6 oz D'Amico and Sons Chicken & Dried Cherry Pasta; -- 14 oz D'Amico and Sons Ranch Pasta Salad with Chicken, Spinach & Bacon; -- 6 oz D'Amico and Sons Ranch Pasta Salad with Chicken, Spinach & Bacon -- 12 oz Roundy's Artichoke Spinach Dip; -- 12 oz Roundy's Taco Dip; -- 12 oz Roundy's Dill Dipc -- 16 oz Grandpa's German Potato Salad; -- 16 oz Grandpa's Cole Slaw; -- 16 oz Grandpa's Macaroni Salad; -- 16 oz Grandpa's Deviled Egg Potato Salad; -- 16 oz Grandpa's Potato Salad; -- 16 oz Grandpa's Red Skin Potato Salad; -- 16 oz Grandpa's Steakhouse Potato Salad; -- 12 oz Maggie's White Fruit Dip; -- 12 oz Maggie's Taco Dip -- 15 oz Fresh Salsa Serrano Spicy -- 16 oz Finest Traditions Deluxe Potato Salad; -- 8 oz Finest Traditions Dill Dip; -- 12 oz Finest Traditions Ham Salad Spread; -- 16 oz Finest Traditions Homemade-Style Cole Slaw; -- 8 oz Finest Traditions Southwest Dip; -- 8 oz Finest Traditions Spinach Dip; -- 16 oz Finest Traditions Smoky Baked Beans; -- 16 oz Finest Traditions Homestyle Potato Salad; -- 16 oz Finest Traditions Macaroni Salad; -- 8 oz Finest Traditions Taco Dip; -- 6 x 12 oz Finest Traditions Tuna Salad Spread -- 12 oz Chef's Kitchen Cucumber Dill Dip -- 16 oz Garden-Fresh Macaroni Salad; -- 16 oz Garden-Fresh American Potato Salad; -- 12 oz Garden Fresh Ham Salad with Sweet Relish; -- 16 oz Garden-Fresh Mustard Potato Salad; -- 16 oz Garden-Fresh Creamy Cole Slaw; -- 16 oz Garden-Fresh German Potato Salad -- 16 oz Weis Creamy Cole Slaw; -- 16 oz Weis Orginal Potato Salad; -- 16 oz Weis Orginal Macaroni Salad; -- 16 oz Weis Potato with Egg Salad; -- 16 oz Weis Amish Macaroni Salad; -- 16 oz Weis Amish Potato Salad; -- 16 oz Weis Red Potato Salad; -- 16 oz Weis Old Fashion Cole Slaw; -- 8 oz Weis Ham Salad; -- 6 x 8 oz Weis Tuna Salad -- 16 oz Spartan American Potato Salad; -- 16 oz Spartan Cole Slaw; -- 16 oz Spartan Macaroni Salad; -- 16 oz Spartan Mustard Potato Salad; and -- 16 oz Portillo's Gourmet Red Skin Potato Salad GOGO LLC: Misleads Consumers on Internet Charges, Suit Says ----------------------------------------------------------- Kerry Welsh, on behalf of himself and all others similarly situated v. Gogo LLC, Case No. 2:13-cv-06889 (C.D. California, September 18, 2013) accuses Gogo of misleading consumers about recurring charges for its in-flight Internet service. Gogo misleads customers into purchasing a service that automatically charges a customer's credit card or other payment source on a recurring, monthly basis without notice, Mr. Welsh alleges. He contends that Gogo presents customer account information on its Web site in a misleading manner that does not indicate the recurring charges. Mr. Welsh is a resident of Rancho Palos Verdes, California. Gogo LLC, known as Aircell LLC until 2011, is an operating subsidiary of Gogo Inc., a public company. Gogo is a Delaware company based in Itasca, Illinois. The Company provides in-flight Internet connectivity and wireless in-cabin digital-entertainment services, as well as voice-communication and video streaming services to travelers on various airlines. The Plaintiff is represented by: Michael R. Reese, Esq. REESE RICHMAN LLP 875 Avenue of the Americas, 18th Floor New York, NY 10001 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 E-mail: mreese@reeserichman.com INTERMEC INC: Continues to Defend Honeywell Merger-Related Suits ---------------------------------------------------------------- Intermec, Inc. continues to defend itself against merger-related class action lawsuits, according to the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On December 9, 2012, Intermec, Inc. entered into an Agreement and Plan of Merger (the "Merger Agreement") with Honeywell International Inc. ("Honeywell") and Hawkeye Merger Sub Corp., a wholly owned subsidiary of Honeywell ("Merger Sub"). Under the Merger Agreement, Merger Sub will merge with and into Intermec, with Intermec continuing as the surviving corporation and wholly owned subsidiary of Honeywell (the "Merger"). After completion of the Merger, Honeywell will own 100% of Intermec's outstanding stock, and current stockholders will no longer have any interest in Intermec. On December 13, 2012, a purported class action lawsuit was filed on behalf of the Company's stockholders in the Superior Court of Snohomish County, Washington, docketed as NECA-IBEW Pension Trust Fund (The Decatur Plan) v. Intermec, Inc., et al., Case No. 12-2- 01841-1. Five days later, on December 18, 2012, another purported class action lawsuit on behalf of the Company's stockholders was filed in the Superior Court of Snohomish County, docketed as Settle v. Intermec, Inc., et al., Case No. 12-2-09793-1. The next day, on December 19, 2012, a purported class action lawsuit on behalf of the Company's stockholders was filed in the Superior Court of King County, Washington, docketed as Grauel v. Barnes, Case No. 12-2-40170-5 SEA. The lawsuits allege, among other things, that the Company's Board of Directors breached its fiduciary duties to stockholders by failing to take steps to maximize stockholder value or to engage in a fair sale process before approving the proposed acquisition of Intermec by Honeywell. Specifically, the lawsuits allege that the consideration paid by Honeywell is grossly inadequate in light of Intermec's recent performance. The lawsuits also allege that the process was designed to ensure that Honeywell had the only opportunity to acquire the Company and that the use of certain deal protection mechanisms precluded the Company from seeking out competing offers. The lawsuits also allege that Intermec's preliminary and definitive proxy statements omit certain purportedly material information. The lawsuits allege that the Board was aided and abetted in its breaches of fiduciary duty by Intermec and Honeywell. Each of the complaints names the Company, the members of the Company's Board of Directors, Honeywell International Inc., and Hawkeye Merger Sub Corp., a wholly owned subsidiary of Honeywell, as defendants. The plaintiffs in these various actions seek relief that includes, among other things, an injunction prohibiting the consummation of the proposed merger, rescission to the extent the Merger terms have already been implemented, damages for the breaches of fiduciary duty, and the payment of plaintiffs' attorneys' fees and costs. The Company believes the lawsuits are without merit and intends to defend against them vigorously. There can be no assurance, however, with regard to the outcome of these lawsuits. Intermec moved to stay the Snohomish County actions in favor of the consolidated action in Delaware but the motion was denied by the Superior Court of Snohomish County on January 11, 2013. The Superior Court consolidated the Snohomish County cases under the name, In re Intermec, Inc. Shareholder Litigation, Lead Case No. 12-2-01841-1, and lead counsel was appointed. On January 11, 2013, the King County case was transferred to Snohomish County for the purpose of being consolidated into the In re Intermec, Inc. Shareholder Litigation. On February 24, 2013, the Court entered a stipulated confidentiality order. On February 28, 2013, the plaintiffs filed a Consolidated Amended Complaint. On March 1, 2013, plaintiffs in the Washington State action filed a motion for a preliminary injunction and a hearing on this motion was held on March 15, 2013, in the Superior Court of Washington for Snohomish County. The Plaintiffs' motion was denied. The Company conducted a Special Meeting of Stockholders on March 19, 2013, at which adoption of the Agreement and Plan of Merger between Intermec and Honeywell was approved. The Company believes the lawsuits are without merit and intends to defend them vigorously. There can be no assurance, however, with regard to the outcome of these lawsuits. Intermec, Inc. -- http://www.intermec.com/-- is a Delaware corporation headquartered in Everett, Washington. The Company designs, develops, integrates, and sells wired and wireless automated identification and data collection solutions through its suite of products, voice technologies and related software and services. The Company's solutions products are designed for rugged environments and to maintain connectivity, preserve computing capability and retain data despite harsh conditions and heavy use. IPPOLITO FRUIT: Recalls Spinach Over Salmonella Presence -------------------------------------------------------- Starting date: September 23, 2013 Type of communication: Recall Alert sub-type: Health Hazard Alert Subcategory: Microbiological - Salmonella Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Ippolito Fruit & Produce Ltd. Distribution: Ontario, Quebec, May be National Extent of the product distribution: Retail Affected products: Brand name Size Code(s) on product UPC ---------- ---- ------------------ --- Frisco's 284 g Lot Code/Best Before 0 33383 65201 6 2 D66258/2013 SE 30 Frisco's 170 g Lot Code/Best Before 0 33383 45041 4 2 D66258 Queen Victoria 227 g Lot Code/Best Before 0 60556 00227 9 2 D66258/2013 SE 30 Metro 171 g Lot Code/Best Before 2 D66258/2013 SE 30 0 59749 89955 0 The Canadian Food Inspection Agency (CFIA) and Ippolito Fruit and Produce Ltd., are warning the public not to consume the Frisco's, Queen Victoria and Metro brands spinach because they may be contaminated with Salmonella. These products have been distributed in Ontario and Quebec. These products may also have been distributed to other provinces. There have been no reported illnesses associated with the consumption of these products. The manufacturer, Ippolito Fruit and Produce Ltd., Burlington, Ontario, is voluntarily recalling the affected products from the marketplace. The CFIA is monitoring the effectiveness of the recall. JONES FINANCIAL: Awaits Approval of Securities Suit Accord ---------------------------------------------------------- Parties in a securities suit against Edward Jones are awaiting the approval of the U.S. District Court for the Central District of California for a proposed settlement, according to The Jones Financial Companies, L.L.L.P.'s Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. There have been four cases filed against Edward Jones (in addition to numerous other issuers and underwriters) asserting claims under the U.S. Securities Act of 1933 (the "Securities Act") in connection with registration statements and prospectus supplements issued for certain mortgage-backed certificates issued between 2005 and 2007. Three cases are purported class actions (David H. Luther, et al. v. Countrywide Financial Corporation, et al. filed in 2007.; Maine State Retirement System, et al. v. Countrywide Financial Corporation, et al. filed in 2010; and Western Conference of Teamsters Pension Trust Fund v. Countrywide Financial Corporation, et al. filed in 2010). All three cases remain pending in the U.S. District Court for the Central District of California. All three cases, however, have been tentatively settled, and the parties are awaiting court approval of the proposed settlement. It is expected that the Court will take several months before entering a final approval of the proposed settlement, which: (1) establishes a fund to be paid exclusively by Countrywide, (2) contains a complete release for all defendants in all three cases, including Edward Jones, (3) contains proposals for the administration of the settlement fund, and (4) provides for the dismissal of all three cases once the court enters the final approval of the settlement and enters a final judgment. Because Edward Jones was being indemnified and defended in all three cases, Edward Jones is not required to pay, and will not be paying, any money into the settlement fund. JONES FINANCIAL: "Ezersky" Suit v. Edward Jones in Pleading Stage ----------------------------------------------------------------- The suit filed by Daniel Ezersky, individually and on behalf of certain Missouri residents who purchased certain life insurance products from Edward Jones is in the pleading stage, according to The Jones Financial Companies, L.L.L.P.'s Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On March 14, 2013, Edward Jones was named as a defendant in a putative class action lawsuit in the Circuit Court of St. Louis County, Missouri. The Petition alleges that Edward Jones breached its fiduciary duties and was unjustly enriched through the use of an online life insurance needs calculator that plaintiff claims inflated the amount of insurance he needed. Plaintiff seeks damages on behalf of Missouri residents who purchased certain life insurance products from Edward Jones between March of 2008 and the present, including: actual damages, or alternatively, judgment in an amount equal to profits gained from the sale of term, whole life or universal life insurance to plaintiff/damages class; punitive damages; injunctive relief; costs, including reasonable fees and expert witness expenses; and reasonable attorneys' fees. The litigation is in the pleading stage and no class has been certified. JONES FINANCIAL: Edward Jones Settles Lehman Brothers-Linked Suit ----------------------------------------------------------------- Edward Jones and certain other defendants executed an agreement to settle the claims asserted against them in an action related to its underwriting of Lehman Brothers Holdings Inc., according to The Jones Financial Companies, L.L.L.P.'s Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Edward Jones was named as a defendant in three actions related to its underwriting of Lehman Brothers Holdings Inc. ("Lehman Brothers") notes that are or were pending in the U.S. District Court for the Southern District of New York ("SDNY"). Two of the suits were putative class action suits originally brought by plaintiffs in state court in Arkansas (the "Arkansas Plaintiffs"), which asserted Securities Act claims based upon two offerings of Lehman Brothers' notes in 2007. The Court dismissed those actions on December 11, 2012. The Arkansas Plaintiffs have appealed the dismissal. The third suit was amended in October 2011 to assert a Section 11 claim against Edward Jones related to three offerings of Lehman bonds in January and February 2008. Plaintiffs, American National Life Insurance Company of Texas, Comprehensive Investment Services Inc., The Moody Foundation, and American National Insurance Company, allege to have purchased $3 million of securities in these offerings, but did not make any of these purchases through Edward Jones. This action names several other purported underwriters as defendants, as well as Lehman Brothers' former auditor. On January 6, 2012, Edward Jones and other defendants moved to dismiss this action. On March 27, 2013, the court dismissed claims against Edward Jones related to two offerings. Claims related to one offering remained pending. On July 12, 2013, Edward Jones and certain other defendants executed an agreement to settle the claims asserted against them in this action. The settlement remains subject to finalization. Edward Jones' payment under the settlement agreement will not have any adverse material impact on its consolidated financial condition. JONES FINANCIAL: Oct. 9 Case Management Hearing in "Maxwell" Suit ----------------------------------------------------------------- An October 9, 2013 case management conference is scheduled in a case filed by Nicholas Maxwell, individually and on behalf of a putative class alleging unlawful wage deductions, according to The Jones Financial Companies, L.L.L.P.'s Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Edward Jones was named as a defendant in a putative class action complaint in Alameda Superior Court. The complaint asserted causes of action for unlawful wage deductions (Labor Code sections 221, 223, 400-410, 2800, 2802, Cal. Code Reg. title 8, section 11040(8)); California Unfair Competition Law violations (Business and Professions Code sections 17200-04); and waiting time penalties (Labor Code sections 201-203). Plaintiff alleges that Edward Jones improperly charged its California financial advisors fees, costs, and expenses related to trading errors or "broken" trades, and failed to timely pay wages at termination; however, plaintiff does not allege a specific amount of damages. Plaintiff filed the complaint on December 18, 2012 and Edward Jones filed its answer on February 6, 2013. Plaintiff has not yet filed his motion for class certification. There is a case management conference scheduled for October 9, 2013. JUNIPER NETWORKS: "Royal Oak" Securities Suit Dismissed in May -------------------------------------------------------------- The class action lawsuit captioned City of Royal Oak Retirement System v. Juniper Networks, Inc., et al., was dismissed in May 2013, according to the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On August 15, 2011, a purported securities class action lawsuit, captioned City of Royal Oak Retirement System v. Juniper Networks, Inc., et al., Case No. 11-cv-04003-LHK, was filed in the United States District Court for the Northern District of California naming the Company and certain of its officers and directors as defendants. The complaint alleges that the defendants made false and misleading statements regarding the Company's business and prospects. Plaintiffs seek an unspecified amount of monetary damages on behalf of the purported class. On January 9, 2012 the Court appointed City of Omaha Police and Fire Retirement System and City of Bristol Pension Fund as lead plaintiffs. Lead plaintiffs allege that defendants made false and misleading statements about the Company's business and future prospects, and failed to adequately disclose the impact of certain changes in accounting rules. Lead plaintiffs purport to assert claims for violations of Sections 10 (b), 20(a) and 20A of the Securities Exchange Act of 1934 and SEC Rule 10b-5 on behalf of those who purchased or otherwise acquired Juniper Networks' common stock between July 20, 2010 and July 26, 2011, inclusive. On March 14, 2012, Defendants filed motions to dismiss lead plaintiffs' amended complaint. On July 23, 2012, the Court issued an order dismissing the action and giving lead plaintiffs leave to file an amended complaint. Lead plaintiffs filed their second amended complaint on August 20, 2012. Defendants filed a motion to dismiss the second amended complaint on September 17, 2012, and lead plaintiffs filed their opposition on October 22, 2012. Defendants filed their reply brief on November 8, 2012. On May 17, 2013, the Court granted Defendants' motion, dismissed the second amended complaint with prejudice, and entered judgment on Defendants' behalf. Juniper Networks, Inc., designs, develops, and sells products and services that together provide its customers with network infrastructure. The Company is headquartered in Sunnyvale, California. LEXMARK INT'L: Appeal From Attorneys' Fee Award Remains Pending --------------------------------------------------------------- An appeal from an award of damages and attorneys' fees in the class action lawsuit titled Molina v. Lexmark International, Inc., remains pending, according to the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On August 31, 2005, former Company employee Ron Molina filed a class action lawsuit in the California Superior Court for Los Angeles under a California employment statute which in effect prohibits the forfeiture of vacation time accrued. This statute has been used to invalidate California employers' "use or lose" vacation policies. The class is comprised of less than 200 current and former California employees of the Company. The trial was bifurcated into a liability phase and a damages phase. On May 1, 2009, the trial court Judge brought the liability phase to a conclusion with a ruling that the Company's vacation and personal choice day's policies from 1991 to the present violated California law. In a Statement of Decision, received by the Company on August 27, 2010, the trial court Judge awarded the class members approximately $8.3 million in damages which included waiting time penalties and interest but did not include post judgment interest, costs and attorneys' fees. On November 17, 2010, the trial court Judge partially granted the Company's motion for a new trial solely as to the argument that current employees are not entitled to any damages. On March 7, 2011, the trial court Judge reduced the original award to $7.8 million. On October 28, 2011, the trial court Judge awarded the class members $5.7 million in attorneys' fees. The Company filed a notice of appeal with the California Court of Appeals objecting to the trial court Judge's award of damages and attorneys' fees. The appeal is pending. The Company believes an unfavorable outcome in the matter is probable. The range of potential loss related to this matter is subject to a high degree of estimation. In accordance with the accounting guidance for contingencies, if the reasonable estimate of a probable loss is a range and no amount within the range is a better estimate, the minimum amount of the range is accrued. Because no amount within the range of potential loss is a better estimate than any other amount, the Company has accrued $1.8 million for the Molina matter, which represents the low-end of the range. At the high-end of the range, the class has sought $16.7 million in damages along with $5.7 million in attorneys' fees, plus post judgment interest. Thus, it is reasonably possible that a loss exceeding the $1.8 million already accrued may be incurred in this matter, ranging from $0 to $22.4 million, excluding post judgment interest, costs and any additional attorneys' fees which may be assessed against the Company. Since its inception in 1991, Lexmark International, Inc., has become a leading developer, manufacturer and supplier of printing, imaging, device management, managed print services, document workflow, and more recently business process and content management solutions. The Company operates in the office printing and imaging, and enterprise content management, business process management, document output management, intelligent data capture and search software markets. The Company is headquartered in Lexington, Kentucky. MEDIVATION INC: Still Awaits Oral Argument in Securities Suit ------------------------------------------------------------- Medivation, Inc. is still awaiting oral argument date related to an appeal from the dismissal of a consolidated securities class action lawsuit, according to the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. In March 2010, the first of several putative securities class action lawsuits was commenced in the U.S. District Court for the Northern District of California, naming as defendants the Company and certain of its officers. The lawsuits are largely identical and allege violations of the Securities Exchange Act of 1934, as amended. The plaintiffs allege, among other things, that the defendants disseminated false and misleading statements about the effectiveness of dimebon for the treatment of Alzheimer's disease. The plaintiffs purport to seek damages, an award of their costs and injunctive relief on behalf of a class of stockholders who purchased or otherwise acquired the Company's common stock between September 21, 2006, and March 2, 2010. The actions were consolidated in September 2010 and, in April 2011 the court entered an order appointing Catoosa Fund, L.P. and its attorneys as lead plaintiff and lead counsel. Thereafter, the lead plaintiff filed a consolidated amended complaint, which was dismissed without prejudice as to all defendants in August 2011. The lead plaintiff filed a second amended complaint in November 2011. In March 2012, the court dismissed the second amended complaint with prejudice and entered judgment in favor of defendants. The Lead plaintiff filed a notice of appeal to the U.S. Circuit Court of Appeals for the Ninth Circuit in April 2012. The appeal is fully briefed, and the Company is awaiting notice of the date for oral argument. No further updates were reported in the Company's latest regulatory filing. While the Company believes it has meritorious positions with respect to the claims asserted against it and intends to advance its positions in these lawsuits vigorously, including on appeal, the process of resolving matters through litigation or other means is inherently uncertain, and it is not possible to predict the ultimate resolution of any such proceeding. The actual cost of defending the Company's position may be significant, and the Company may not prevail. The Company believes it is entitled to coverage under its relevant insurance policies with respect to the putative securities class action lawsuits, subject to a $350,000 retention, but coverage could be denied or prove to be insufficient. Medivation, Inc., is a biopharmaceutical company focused on the rapid development and commercialization of novel therapies to treat serious diseases for which there are limited treatment options. The Company was incorporated in Delaware and is headquartered in San Francisco, California. MINNESOTA: Judge Dismisses Driver's Privacy Class Action -------------------------------------------------------- Tad Vezner, writing for Pioneer Press, reports that a federal judge dismissed five class-action lawsuits on Sept. 20 filed by Minnesotans whose private driver's license data was illegally accessed by a state Department of Natural Resources employee over several years. U.S. District Judge Joan Ericksen ruled that private individuals cannot sue state agencies under the federal Drivers' Privacy Protection Act. She wrote that only by the U.S. attorney general can impose a civil penalty on a state department of motor vehicles. The act, enacted in 1994, sought to protect private citizens' data from unauthorized access, and set minimum damages for misuse of citizens' personal driver's license data at $2,500 per incident. The lawsuit pertained to misuses of such data by former DNR enforcement officer John Hunt, who officials said searched driver's license data on private citizens 19,000 times over five years, for purposes other than work. State officials feared damages from the class-action suit would top $47 million. Mr. Hunt was fired in January and faces criminal charges. Mr. Hunt himself could still be sued under the act. "While the alleged scale of private data misuse by law enforcement personnel may well raise legitimate concerns, the structure of the DPPA signals that Congress did not intend the civil action provision to serve as the means to remedy systemic problems of the type to which the complaint alludes," Judge Ericksen wrote. The act was passed in 1994 after several crimes tied to abuse of license data like stalking and harassment. Among those was the murder of 21-year-old actress Rebecca Schaeffer by an obsessed fan who located her through driver's license records. Meanwhile, cities and counties across Minnesota are facing a wave of litigation stemming from the unauthorized accessing of driver's license data by public employees, mostly in law enforcement. According to StarTribune.com's Eric Roper, Judge Ericksen said the state could not be held liable for Hunt's actions. "The complaint alleges no facts that make it plausible that the defendants 'knowingly' gave defendant Hunt database access 'for a purpose not permitted' by the DPPA [Drivers Privacy Protection Act]." The suits were brought on behalf of the 5,000 people who received data breach letters. Judge Ericksen granted a motion by Attorney General Lori Swanson's office to dismiss the cases on Sept. 20. MORGAN STANLEY: Still Faces Antitrust Lawsuit in Illinois --------------------------------------------------------- Morgan Stanley continues to face antitrust suits pending in the United States District Court for the Northern District of Illinois, according to the company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On May 5, 2013 and July 11, 2013, 12 financial firms (including the Company), as well as ISDA and Markit, were named as defendants in two purported antitrust class actions styled Sheet Metal Workers Local No. 33 Cleveland District Pension Plan vs. Bank of America Corporation et al., and Unipension Fondsmaeglerselskab A/S. et al v. Bank of America Corporation et al, respectively. Both actions are pending in the United States District Court for the Northern District of Illinois and allege that defendants violated United States antitrust laws from 2008 to present in connection with their alleged efforts to prevent the development of exchange traded CDS products. The complaints seek, among other relief, certification of a class of plaintiffs who purchased CDS from defendants in the United States, treble damages and injunctive relief. MORGAN STANLEY: Plaintiffs in ERISA Suit Appeal Court Judgment -------------------------------------------------------------- On May 30, 2013, judgment in defendants' favor was entered in both In re Morgan Stanley ERISA Litigation and Coulter v. Morgan Stanley & Co. Incorporated et al. and plaintiffs filed a notice of appeal with respect to each judgment on June 27, 2013, according to the company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On May 2, 2013, certain offerings that had previously been dismissed in In re IndyMac Mortgage-Backed Securities Litigation were reinstated in light of recent precedent from the United States Court of Appeals for the Second Circuit. There are now four offerings underwritten by the Company at issue, with a principal amount of $1.68 billion. MSG HOLDINGS: Accused of Not Paying Minimum and Overtime Wages -------------------------------------------------------------- Christopher Fraticelli, individually and on behalf of other persons similarly situated who were employed by MSG Holdings, L.P. and The Madison Square Garden Company and/or any other entities affiliated with or controlled by MSG Holdings, L.P. and The Madison Square Garden Company v. MSG Holdings, L.P. and The Madison Square Garden Company, and/or any other entities affiliated with or controlled by MSG Holdings, L.P. and The Madison Square Garden Company, Case No. 1:13-cv-06518-JMF (S.D. N.Y., September 16, 2013) is brought pursuant to the Fair Labor Standards Act to recover unpaid minimum and overtime wages owed to the Plaintiff and all similarly situated persons, who are presently or were formerly employed by the Defendants. Beginning in approximately 2007 and continuing through the present, the Defendants have wrongfully withheld wages from him and other similarly situated individuals, who worked for the Defendants, Mr. Fraticelli alleges. He contends that the Defendants have wrongfully classified him and others as exempt from minimum and overtime wage requirements. Christopher Fraticelli, a resident of New York, was employed by the Defendants from September 2011 until January 2012. MSG Holdings and Madison Square Garden are foreign business corporations organized in Delaware and authorized to do business in New York. The Defendants are engaged in the sports and entertainment industry. They own and operate various teams, event venues, and media outlets, including the New York Knicks, New York Rangers, New York Liberty, Madison Square Garden, MSG Networks, MSG Media, Fuse, Radio City Music Hall, and The Beacon Theatre. The Plaintiff is represented by: Lloyd Robert Ambinder, Esq. Suzanne Brooke Leeds, Esq. VIRGINIA & AMBINDER, LLP 111 Broadway, Suite 1403 New York, NY 10006 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 E-mail: lambinder@vandallp.com sleeds@vandallp.com - and - Jeffrey Kevin Brown, Esq. Daniel Harris Markowitz, Esq. Michael Alexander Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 Facsimile: (516) 747-5024 E-mail: jbrown@leedsbrownlaw.com dmarkowitz@leedsbrownlaw.com mtompkins@lmblaw.com NAVISTAR INT'L: Objectors to Liability Suit Deal Must Post Bond --------------------------------------------------------------- Certain objectors to the court-approved settlement in IN RE NAVISTAR DIESEL ENGINE PRODUCTS LIABILITY LITIGATION have filed notices of appeal. Under the terms of the settlement agreement between the plaintiff class and defendant Ford Motor Company, the pendency of an appeal operates as a stay on carrying out the settlement terms, including payment of claims by class members. Plaintiffs argue that the appeals are frivolous, and they contend that the delay caused by the appeals will increase the costs of administration by a significant amount. The Plaintiffs have asked the Court to require the objectors to post a bond. Specifically, they ask the Court to require the objectors "to each post an appeal bond pursuant to Rule 7 of the Federal Rules of Appellate Procedure as security to ensure against the additional taxable appellate costs and administrative costs that these frivolous appeals will inflict." Plaintiffs argue that the appropriate amount of the bond is $77,000, $25,000 of this representing what plaintiffs argue will be "the direct taxable costs of the appeal" and $52,000 representing "the administrative costs of the delay caused by the appeal." District Judge Matthew F. Kennelly granted the Plaintiffs' motions for bond in part and denies them in part. Each appellant in the case was directed to post, a bond in the amount of $5,000 to cover taxable costs on appeal. The Court otherwise denies plaintiffs' motions. The case is IN RE NAVISTAR DIESEL ENGINE PRODUCTS LIABILITY LITIGATION CASE NO. 11 C 2496, MDL NO. 2223, (N.D. Ill.). A copy of the District Court's August 12, 2013 Memorandum Opinion and Order is available at http://is.gd/MDORoqfrom Leagle.com. Navistar 6.0 L Diesel Engine Products Liability Litigation, In Re, represented by: Michael A. Caddell, Esq. Caddell & Chapman 1331 Lamar Street, Suite 1070 Houston, TX 77010 Phone: 713-581-8295 Toll Free: 877-553-3057 Fax: 713-751-0906 Carrol Duhon, Plaintiff, represented by Richard J Arsenault -- rarsenault@nbalawfirm.com -- Neblett Beard & Arsenault & Robert Kinney Shelquist -- rkshelquist@locklaw.com -- Lockridge Grundal Nauen & Holstein PLLP. Daniel Sheeder, Plaintiff, represented by Charles J. LaDuca, Cuneo -- charlesl@cuneolaw.com -- Gilbert & LaDuca, Charles E. Schaffer -- cschaffer@lfsblaw.com -- Levin, Fishbaein, Sedran & Berman & Victoria Romanenko -- vicky@cuneolaw.com -- Cuneo Gilbert & Laduca, LLP. County of Holmes, Plaintiff, represented by: Richard Runft Barrett, Esq. Law Office Of Richard R. Barrett, Pllc 2086 Old Taylor Road, Suite 1011 Oxford, MS 38655 Phone: 662.380.5018 Fax: 866.430.5459 E-mail: rrb@rrblawfirm.net Eduardo Colon-Rivera, Plaintiff, represented by John F. Nevares -- jfnevares-law@microjuris.com -- John F. Nevares & Associates. Ulises Matta-Laureano, Plaintiff, represented by John F. Nevares, John F. Nevares & Associates. Jaime Noel Sanchez-Rodriguez, Plaintiff, represented by John F. Nevares, John F. Nevares & Associates. Travel Services, Plaintiff, represented by John F. Nevares, John F. Nevares & Associates. Jose Torres-Rodriguez, Plaintiff, represented by John F. Nevares, John F. Nevares & Associates. Luis A. Soler-Cruz, Plaintiff, represented by John F. Nevares, John F. Nevares & Associates. Nstor Rodrguez-Medina, Plaintiff, represented by John F. Nevares, John F. Nevares & Associates. Betty Ann Gould, Plaintiff, represented by Erik A. Christiansen -- echristiansen@parsonsbehle.com -- Parsons Behle & Latimer & Roy A Katriel -- rak@katriellaw.com -- The Katriel Law Firm PLLC. Kem Anderson, Plaintiff, represented by Shawn M Raiter -- sraiter@larsonking.com -- Larson & King, LLP Christopher L. Coffin, Esq. Nicholas R. Rockforte, Esq. Patrick Wayne Pendley, Esq. Stan Baudin, Esq. PENDLEY, BAUDIN & COFFIN, L.L.P. P.O. Drawer 71 24110 Eden Street Plaquemine, Louisiana 70765 Telephone: (225) 687-6396 Facsimile: (225) 687-6398 Mark E Lewis, Plaintiff, represented by Joseph J Rego -- joerego@regolaw.com -- Law Office of Joseph Rego, APC, Inc.. Russell Mayfield, Plaintiff, represented by: Bruce C. Betzer, Esq. The Law Office Of Bruce C. Betzer 3129 Bore Street Metairie, LA 70001 Phone: 504-264-9523 Toll Free: 866-603-3792 Fax: 504-304-9964 Charles Idelman, Plaintiff, represented by Thomas P. Thrash -- TomThrash@sbcglobal.net -- Thrash Law Firm. Deborah Charles, Plaintiff, represented by Roy A Katriel, The Katriel Law Firm PLLC. Wayne Weatherford, Plaintiff, represented by Roy A Katriel, The Katriel Law Firm PLLC. Brandon Burns, Plaintiff, represented by Roy A Katriel, The Katriel Law Firm PLLC. Joe Waggoner, Plaintiff, represented by Roy A Katriel, The Katriel Law Firm PLLC. Dennis Tacker, Plaintiff, represented by Roy A Katriel, The Katriel Law Firm PLLC. Johnny Quiroz, Plaintiff, represented by Roy A Katriel, The Katriel Law Firm PLLC. Forrest Pace, Plaintiff, represented by Roy A Katriel, The Katriel Law Firm PLLC. Rhonda Lewis, Plaintiff, represented by Joseph J Rego, Law Office of Joseph Rego, APC, Inc.. Jonathan Aldrich, Plaintiff, represented by: Alexander Wells Peet, Esq. Dewitt M. Lovelace, Esq. Lovelace Law Firm PA 12870 US HWY 98 W STE 200 Miramar Beach, FL 32550 Telephone: (850) 837-6020 Facsimile: (805) 837-4093 E-mail: courtdocs@lovelacelaw.com Custom Underground, Inc., Plaintiff, represented by Michael A. Caddell, Caddell & Chapman. Ford Motor Company, Defendant, represented by Brian C. Anderson -- banderson@omm.com -- O'Melveny & Myers, LLP, Cynthia Ann Merrill -- cmerrill@omm.com -- O'Melveny & Myers LLP, Dmitry Shifrin -- shifrin@polsinelli.com -- Polsinelli Shughart P.C., Edwin L. Lowther, Jr. -- elowther@wlj.com -- Wright, Lindsey & Jennings LLP, Gary D. Marts, Jr., Wright Lindsey & Jennings Llp, Janet L. Conigliaro -- jconigliaro@dykema.com -- Dykema Gossett, John M. Thomas -- jthomas@dykema.com -- Dykema Gossett Pllc, Jonathan H Singer -- jsinger@omm.com -- O'Melveny & Myers Llp, Richard P. Cassetta -- richard.cassetta@bryancave.com -- Bryan Cave Llp, Robert F Walker -- rwalker@bakerdonelson.com -- BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC & Thomas J. Palazzolo -- tjpalazzolo@bryancave.com -- Bryan Cave Llp. Service List,, represented by Alexander Wells Peet, Lovelace Law Firm PA, Brian C. Anderson, O'Melveny & Myers, LLP, Bruce C. Betzer, The Law Office Of Bruce C. Betzer, Camilo K. Salas, III, Salas & Co LC, Carmelo B Sammataro, Turner Padget Graham and Laney, Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin, LLC, Charles J. LaDuca, Cuneo, Gilbert & LaDuca, Charles E. Schaffer, Levin, Fishbaein, Sedran & Berman, Christine R. Davis Graves, Carlton Fields PA, Christopher L. Coffin, Pendley, Baudin & Coffin, L.L.P., Christopher Ray Kiger, Smith Anderson, Cory S. Fein, Caddell & Chapman, Cynthia B. Chapman, Caddell & Chapman, Cynthia Ann Merrill, O'Melveny & Myers LLP, D. Scott Kalish, Scott Klaish Co., L.L.C., D. Alan Thomas, Huie, Fernambucq & Stewart, LLP, Dan H Ball, Bryan Cave, LLP, Dana F. Strout, Rubin & Strout, P.A., Daniel E. Becnel, Jr., Becnel Law Firm, LLC, Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, LLC, Daniel W. Olivas, Lewis, King, Krieg, & Waldrop, P.C., David L Marcus, Bartle & Marcus LLC, Dewitt M. Lovelace, Lovelace Law Firm PA, Dmitry Shifrin, Polsinelli Shughart P.C., Edward Craig Stewart, Wheeler Trigg O'Donnell, LLP, Edwin L. Lowther, Jr., Wright, Lindsey & Jennings LLP, Edwin E. Wallis, III, Glassman, Edwards, Wade & Wyatt, P.C., Eric D. Holland, Holland, Groves & Schneller, LLC, Erik A. Christiansen, Parsons Behle & Latimer, Francis Richard Greene, Edelman, Combs, Latturner & Goodwin, LLC, Frank E Piscitelli, Jr, Piscitelli Law Firm, Fred R. Rosenthal, Parker Waichman Alonso LLP, Gary D. Marts, Jr., Wright Lindsey & Jennings Llp, HERBERT L. WAICHMAN, PARKER, WAICHMAN & ALONSO, LLP, J Thad Heartfield, The Heartfield Law Firm, J. Barton Goplerud, Hudson, Mallaney & Shindler, P.C., James M. Campbell, Campbell, Campbell, Edwards & Conroy, P.C., James L. Deese, James O. Latturner, Edelman, Combs, Latturner & Goodwin, LLC, Jay Scott Bowen, Bowen Hayes & Kreisberg, PLC, Jeffrey A. Long, Bray & long, PLLC, Johanna Searle Fowler, Smith Anderson Blount Dorsett Mitchell & Jern, John Randolph Bibb, Jr., Lewis, King, Krieg & Waldrop, P.c., John S. Cherry, Jr., Barber, McCaskill, Jones & Hale, P.A., John R. Climaco, Climaco Lefkowitz Peca Wilcox & Garofoli Col, LPA, John F Nevares, John F. Nevares & Assoc., PSC, John Isaac Southerland, Huie, Fernambucq & Stewart, LLP, John E. Wade, Jr., Brunini, Grantham, Grower & Hewes, John R Whaley, Neblett Beard & Arsenault, John a. Peca, Climaco, Wilcox, Peca, Tarantino & Garofoli Co., Lpa, Joseph Kenneth Carter, Jr, Turner Padget Graham and Laney, Joseph J Rego, Law Office of Joseph Rego, APC, Inc., Keith W. McDaniel, McCranie, Sistrunk, Kirk Gibson Warner, Smith Anderson, M. Stephen Dampier, Law Offices of M. Stephen Dampier, P.C., M. Dru Montgomery, The Heartfield Law Firm, Mark P. Chalos, Lieff, Cabraser, Heimann & Bernstein, Llp, Matthew V. Bartle, Graves Bartle Marcus & Garrett, LLC, Michael A. Caddell, Caddell & Chapman, Michelle I. Schaffer, Campbell, Campbell, Edwards & Conroy, P.C. -MA, Mitchell A. Toups, Weller Green Toups & Terrell, Nathan F. Garrett, Graves Bartle Marcus & Garrett, LLC, Nicholas Diamand, Lieff Cabraser Heimann & Bernstein LLP, Nicholas R. Rockforte, Pendley, Baudin & Coffin, L.L.P., Nicholas R. Rockforte, Pendley, Baudin & Coffin, L.L.P., Patrick E Knie, Patrick E. Knie, P.a., Patrick Wayne Pendley, Pendley, Baudin & Coffin, LLP, Patrick G. Warner, Climaco Wilcox, Peca, Tarantino & Garofoli Co., Paul D. Morris, Wright, Lindsey & Jennings LLP, Peter J. Cambs, Sr., Senior Litigation Counsel, Rebecca Cameron Blount, The Blount Law Firm, PC, Richard J Arsenault, Neblett Beard & Arsenault, Richard Runft Barrett, Law Office Of Richard R. Barrett, Pllc, Richard P. Cassetta, Bryan Cave Llp, Robert J. Cecala, Aaronson Rappaport Feinstein & Deutsch, Robert J. Hoffman, Bryan Cave LLP, Robert Kinney Shelquist, Lockridge Grundal Nauen & Holstein PLLP, Robert F Walker, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, Roy A Katriel, The Katriel Law Firm PLLC, Ryan N. Clark, Lewis, King, Krieg, & Waldrop, P.C., Sach D. Oliver, Bailey Oliver Law Firm, Samuel Brent Wakefield, Barber, McCaskill, Jones & Hale, P.A., Scott Hammack, O'melveny & Myers Llp, Stan Baudin, Pendley, Baudin & Coffin, L.L.P., Thomas P. Thrash, Thrash Law Firm, Thomas Christopher Tuck, Richardson Patrick Westbrook and Brickman, Tim Edwards, Glassman, Edwards, Wade & Wyatt, P.C., Timothy D. Miltenberger, Coan, Lewendon, Gulliver & Miltenberger, Timothy P. Mitchell, Themis Law Group, Todd B. Murrah, Glassman Edwards Wyatt Tuttle & Cox PC, Victoria Romanenko, Cuneo Gilbert & Laduca, LLP & William E Hopkins, Jr, Hopkins Law Firm, LLC. Brent Jones, Movant, represented by Patrick E Knie -- pknie@knielaw.com -- Patrick E. Knie, P.a. & William E Hopkins -- wehopkins@hopkinscampbell.com -- Jr, Hopkins Law Firm, LLC. Debbie Pawlaczyk, Movant, represented by Jeffrey A. Long -- jlong@braylong.com -- Bray & long, PLLC, Patrick E Knie, Patrick E. Knie, P.a. & William E Hopkins, Jr, Hopkins Law Firm, LLC. Bill Pawlaczyk, Movant, represented by Jeffrey A. Long, Bray & long, PLLC, Patrick E Knie, Patrick E. Knie, P.a. & William E Hopkins, Jr, Hopkins Law Firm, LLC. Jeff Chandonait, Movant, represented by Patrick E Knie, Patrick E. Knie, P.a. & William E Hopkins, Jr, Hopkins Law Firm, LLC. Alexander Evans, Movant, represented by Jeffrey A. Long, Bray & long, PLLC, Patrick E Knie, Patrick E. Knie, P.a. & William E Hopkins, Jr, Hopkins Law Firm, LLC. Phillip P. Morrison, Movant, represented by Patrick E Knie, Patrick E. Knie, P.a. & William E Hopkins, Jr, Hopkins Law Firm, LLC. Carla W. Morrison, Movant, represented by Patrick E Knie, Patrick E. Knie, P.a. & William E Hopkins, Jr, Hopkins Law Firm, LLC. Mark Morris, Movant, represented by Frank E Piscitelli, Jr, Piscitelli Law Firm, John R. Climaco, Climaco Lefkowitz Peca Wilcox & Garofoli Col, LPA, John a. Peca, Climaco, Wilcox, Peca, Tarantino & Garofoli Co., Lpa & Patrick G. Warner, Climaco Wilcox, Peca, Tarantino & Garofoli Co.. Mr. Mario Polanco Patron, Movant, represented by Timothy P. Mitchell -- TimMitchellEsq@hotmail.com -- Themis Law Group. Michael Mahoney, Movant, represented by Michael R. Karnuth -- mike@krislovlaw.com -- Krislov & Associates, Ltd. and: Lauren A Ungs, Esq. Steve B Mikhov, Esq. O'Connor & Mikhov LLP 640 S San Vicente Blvd Ste 350 Los Angeles, CA 90048 Phone: (323) 936-2274 Fax: (323) 939-7973 E-mail: LaurenU@omlawllp.com Nancy and Jadie Sullivan, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Scott Tinturin, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Steven Fisher, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Teresa & Randy Baker, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Arden Beavers, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Cindy and David Parker, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Lawrence Reed, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Alana and Dan Santos, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Martin Slanina, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Gene & Sissy Bennett, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Jared & Miranda Walden, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Anthony Anderson, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. Dave & Gari Stinebaugh, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP, Steve B Mikhov, O'Connor & Mikhov LLP & Michael R. Karnuth, Krislov & Associates, Ltd.. California Consumers, Movant, represented by Lauren A Ungs, O'Connor & Mikhov LLP & Steve B Mikhov, O'Connor & Mikhov LLP. NEW YORK: Court Enters Remedies Opinion in Floyd and Ligon Cases ---------------------------------------------------------------- District Judge Shira A. Scheindlin issued a "remedies" opinion in DAVID FLOYD, et al., Plaintiffs, v. CITY OF NEW YORK, Defendant, and JAENEAN LIGON, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants, NOS. 08 CIV. 1034 (SAS), 12 CIV. 2274 (SAS), (S.D.N.Y.). In an Opinion issued August 12, 2013, Judge Scheindlin found the City of New York liable in the Floyd case for violating the Fourth and Fourteenth Amendment rights of the plaintiff class because of the way the New York City Police Department (NYPD) has conducted stops and frisks over the past decade (the Liability Opinion). In an Opinion issued in January 2013, Judge Scheindlin found that the Ligon plaintiffs, representing a putative class of people stopped outside buildings participating in the Trespass Affidavit Program (TAP) in the Bronx, were entitled to preliminary injunctive relief based on violations of their Fourth Amendment rights. The purpose of the "Remedies Opinion" is to determine what remedies are appropriate in these cases, Judge Scheindlin says. "I address both cases in one Opinion because the remedies necessarily overlap. Each requires that the NYPD reform practices and policies related to stop and frisk to conform with the requirements of the United States Constitution. I stress, at the outset, that the remedies imposed in this Opinion are as narrow and targeted as possible. To be very clear: I am not ordering an end to the practice of stop and frisk. The purpose of the remedies addressed in this Opinion is to ensure that the practice is carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much needed police protection," he said. The defendant in Floyd and the defendants in Ligon are ordered to comply with the remedial orders, says Judge Scheindlin. A copy of the District Court's August 12, 2013 Opinion and Order is available at http://is.gd/3aaqU9from Leagle.com. Christopher Dunn, Esq., Alexis Karteron, Esq., Taylor Pendergrass, Esq., Daniel Mullkoff, Esq., New York Civil Liberties Union, New York, NY, Mariana Kovel, Esq., The Bronx Defenders, Bronx, NY, Juan Cartagena, Esq., Foster Maer, Esq., Roberto Concepcion, Jr., Esq., LatinoJustice PRLDEF, New York, NY, John A. Nathanson Esq., -- john.nathanson@shearman.com -- Tiana Peterson, Esq. -- tiana.peterson@shearman.com -- Mayer Grashin, Esq. -- mayer.grashin@shearman.com -- Shearman & Sterling LLP, New York, NY, for Ligon Plaintiffs. Darius Charney, Esq., Sunita Patel, Esq., Baher Azmy, Esq., Rachel Lopez, Esq., Ghita Schwarz, Esq., Chauniqua Young, Esq., Center for Constitutional Rights New York, NY, Philip I. Irwin, Esq. -- pirwin@cov.com -- Eric Hellerman, Esq. -- ehellerman@cov.com -- Gretchen Hoff Varner, Esq. -- ghoffvarner@cov.com -- Kasey Martini, Esq. -- kmartini@cov.com -- Bruce Corey, Jr., Esq. -- bcorey@cov.com -- Covington & Burling LLP, New York, NY, Jonathan Moore, Esq. -- jmoore@blhny.com -- Jenn Rolnick Borchetta, Esq. -- Jborchetta@blhny.com -- Beldock Levine & Hoffman LLP, New York, NY, for Floyd Plaintiffs. Brenda Cooke, Linda Donahue, Heidi Grossman, Morgan Kunz, Joseph Marutollo, Suzanna Publicker, Lisa Richardson, Cecilia Silver, Judson Vickers, Richard Weingarten, Mark Zuckerman, Assistant Corporation Counsel New York City Law Department, New York, NY, for Ligon and Floyd Defendants. NONG SHIM: Sued Over Alleged Korean Noodle Price-Fixing ------------------------------------------------------- Julia Love, writing for The Recorder, reports that in recent years, large plaintiffs shops have sued Asian manufacturers for alleged price-fixing of products including optical disk drives, LCD screens and lithium ion batteries. The latest collusion conspiracy outlined in a Northern District complaint targets something less high tech -- noodles. Burlingame-based Cotchett Pitre & McCarthy has sued four leading Korean noodle companies alleging they cooked up a plot to charge more for their instant meals, hiking prices 54 percent over seven years. S.F. solo Steven Sherman and Reich Radcliffe & Kuttler of Newport Beach filed follow-on suits on Sept. 17. The suits capitalize on a July 2012 order issued by the Korean Fair Trade Commission, which found that noodle makers Nong Shim Co., Ottogi Co., Samyang Foods Co. and Korea Yakult colluded to raise prices and ordered them to pay a total of $120 million. In a report explaining its findings, the Korean government detailed how the companies raised prices six times between 2001 and 2008. In addition to swapping hundreds of emails, the companies solidified their plans at the Ramen Conference, an industry meeting. "The March 2008 Ramen Conference ensured that the raised prices remained inflated in the future," Cotchett partner Steven Williams -- swilliams@cpmlegal.com -- wrote in Pitco Foods v. Nong Shim Co., 13-4148. The firm represents lead plaintiff Pitco Foods, a San Jose-based wholesaler that claims it purchased noodles at inflated prices as a result of the scheme. Although the companies were allegedly conspiring in Korea, Mr. Williams argues that the effects of their scheme spilled over to the United States. "During the class period, the South Korean defendants shipped price-fixed Korean noodles directly to their wholly owned and controlled subsidiaries in the United States for resale in this country," the complaint states. The Korean noodle makers had set their sights on American consumers to drive up sales, the complaint alleges. Nong Shim, for example, drew 34.1 percent of its sales outside of Korea from the U.S. But American consumers were clueless about the companies' scheme to inflate prices, the complaint alleges. The Korean companies took the unusual step of issuing press releases before they raised prices, attributing the hikes to the soaring costs of ingredients. Because the companies covered up their collusion with false statements, plaintiffs' claims should not be subject to statutes of limitations, Pitco Foods argues. "When a party speaks on a subject matter, it must speak the whole truth," the complaint states. The Cotchett firm has been on a pricefixing tear. Earlier this month, the firm, which is co-lead class counsel in the lithium battery MDL, filed another antitrust suit in the Northern District, this time alleging that a group of companies in the vehicle carrier industry conspired to raise the price of their services. That suit is Tuan Nguyen v. Nippon Yusen Kabushiki Kaisha, 13-4245. OHR PHARMACEUTICALS: Court Dismisses Amended "Schmidt" Class Suit ----------------------------------------------------------------- District Judge Berle M. Schiller granted motions to dismiss an amended complaint in ALAN SCHMIDT, Plaintiff, v. JOHN A. SKOLAS, et al., Defendants, CIVIL ACTION NO. 12-3265, (E.D. Pa.). Alan Schmidt, a former shareholder of Genaera Corporation and a former unitholder of the Genaera Liquidating Trust, filed an Amended Verified Class Action and Shareholder Derivative Complaint for Damages and Rescission of Sales of Assets to Ohr and Dipexium against John A. Skolas, Leanne Kelly, John L. Armstrong, Jr., Zola B. Horovitz, Osagie O. Imasogie, Mitchell D. Kaye, Robert F. Shapiro, Paul K. Wotton, Robert DeLuccia, Griffin Securities, David Luci, Steve Rouhandeh, Jeffrey Davis, Mark Alvino, GLT, Biotechnology Value Fund, Inc., Ligand Pharmaceuticals, Inc., Xmark Capital Partners, LLC, Argyce LLC, Ohr Pharmaceuticals, John L. Higgins, Genaera, SCO Financial Group, Dipexium Pharmaceuticals, LLC, MacroChem Corporation, Access Pharmaceuticals, Inc., and Mark N. Lampert for breach of their fiduciary duties, as well as aiding and abetting thereof, arising out of the liquidation of Genaera. Eight groups of Defendants moved to dismiss the Amended Complaint on grounds including statute of limitations and lack of personal jurisdiction. A copy of the District Court's August 12, 2013 Memorandum is available at http://is.gd/Bv30W1from Leagle.com. ALAN SCHMIDT, Plaintiff, represented by BRIAN J. MCCORMICK, JR. -- bjmccormick@sheller.com -- SHELLER PC, GARRY T. STEVENS, JR. -- garry@sfclasslaw.com -- SQUITIERI & FEARON LLP & LEE SQUITIERI, SQUITIERI & FEARON LLP. JOHN A. SKOLAS, Defendant, represented by CAROLYN E. BUDZINSKI -- carolyn.budzinski@dechert.com -- DECHERT LLP & MICHAEL L. KICHLINE -- michael.kichline@dechert.com -- DECHERT LLP. LEANNE KELLY, Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP & MICHAEL L. KICHLINE, DECHERT LLP. JOHN L. ARMSTRONG, JR., Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP & MICHAEL L. KICHLINE, DECHERT LLP. ZOLA B. HOROVITZ, PH.D., Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP & MICHAEL L. KICHLINE, DECHERT LLP. OSAGIE O. IMASOGIE, Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP & MICHAEL L. KICHLINE, DECHERT LLP. MITCHELL D. KAYE, Defendant, represented by ALFRED W. ZAHER -- Zaher@BlankRome.com -- BLANK ROME LLP, DONALD A. CORBETT -- dcorbett@lowenstein.com -- LOWENSTEIN SANDLER PC, RICHARD C. WOLTER -- rwolter@lowenstein.com -- LOWENSTEIN SANDLER PC & CHRISTOPHER MICHAEL GUTH -- Guth@BlankRome.com -- BLANK ROME, LLP. ROBERT F. SHAPIRO, Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP & MICHAEL L. KICHLINE, DECHERT LLP. PAUL K. WOTTON, Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP & MICHAEL L. KICHLINE, DECHERT LLP. ROBERT DELUCCIA, Defendant, represented by DENEAN K. STURINO -- dsturino@ohaganlaw.com -- O'HAGAN SPENCER LLC, JOSEPH E. VAUGHAN -- jvaughan@ohaganlaw.com -- O'HAGAN LLC & AMY C. LACHOWICZ -- alachowicz@ohaganlaw.com -- O'HAGAN LLC. DAVID LUCI, Defendant, represented by DENEAN K. STURINO, O'HAGAN SPENCER LLC, JOSEPH E. VAUGHAN, O'HAGAN LLC & AMY C. LACHOWICZ, O'HAGAN LLC. STEVE ROUHANDEH, Defendant, represented by JOHN S. SUMMERS -- jsummers@hangley.com -- HANGLEY ARONCHICK SEGAL & PUDLIN, JORDAN D. HERSHMAN -- jordan.hershman@bingham.com -- BINGHAM MCCUTCHEN LLP, MICHAEL D. BLANCHARD -- michael.blanchard@bingham.com -- BINGHAM MCCUTCHEN LLP, CHRISTOPHER M. WASIL -- christopher.wasil@bingham.com -- BINGHAM MCCUTCHEN LLP & ROBERT WIYGUL -- rwiygul@hangley.com -- HANGLEY ARONCHICK SEGAL & PUDLIN. JEFFREY DAVIS, Defendant, represented by JOHN S. SUMMERS, HANGLEY ARONCHICK SEGAL & PUDLIN, JORDAN D. HERSHMAN, BINGHAM MCCUTCHEN LLP, MICHAEL D. BLANCHARD, BINGHAM MCCUTCHEN LLP, CHRISTOPHER M. WASIL, BINGHAM MCCUTCHEN LLP & ROBERT WIYGUL, HANGLEY ARONCHICK SEGAL & PUDLIN. MARK ALVINO, Defendant, represented by JOHN S. SUMMERS, HANGLEY ARONCHICK SEGAL & PUDLIN, JORDAN D. HERSHMAN, BINGHAM MCCUTCHEN LLP, MICHAEL D. BLANCHARD, BINGHAM MCCUTCHEN LLP, CHRISTOPHER M. WASIL, BINGHAM MCCUTCHEN LLP & ROBERT WIYGUL, HANGLEY ARONCHICK SEGAL & PUDLIN. GENAERA LIQUIDATING TRUST, Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP. BIOTECHNOLOGY VALUE FUND, INC., Defendant, represented by JEFFREY G. WEIL -- jweil@cozen.com -- COZEN O'CONNOR, JOSEPH P. DEVER -- jdever@cozen.com -- JR., COZEN O'CONNOR & TAMAR S. WISE -- twise@cozen.com -- COZEN O'CONNOR. LIGAND PHARMACEUTICALS, INC., Defendant, represented by COLLEEN C. SMITH -- colleen.smith@lw.com -- LATHAM & WATKINS LLP, JOHN T. RYAN, LATHAM & WATKINS LLP & PAUL G. NOFER -- pnofer@klehr.com -- KLEHR HARRISON HARVEY BRANZBURG LLP. XMARK CAPITAL PARTNERS, LLC, Defendant, represented by ALFRED W. ZAHER, BLANK ROME LLP, DONALD A. CORBETT, LOWENSTEIN SANDLER PC, RICHARD C. WOLTER, LOWENSTEIN SANDLER PC & CHRISTOPHER MICHAEL GUTH, BLANK ROME, LLP. ARGYCE LLC, Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP & MICHAEL L. KICHLINE, DECHERT LLP. OHR PHARMACEUTICALS, Defendant, represented by ABRAHAM J. REIN, POST & SCHELL PC & JONATHAN M. PROMAN, HAHN & HESSEN LLP. JOHN L. HIGGINS, Defendant, represented by COLLEEN C. SMITH, LATHAM & WATKINS LLP, JOHN T. RYAN, LATHAM & WATKINS LLP & PAUL G. NOFER, KLEHR HARRISON HARVEY BRANZBURG LLP. GENAERA CORPORATION, Defendant, represented by CAROLYN E. BUDZINSKI, DECHERT LLP & MICHAEL L. KICHLINE, DECHERT LLP. DIPEXIUM PHARMACEUTICALS, LLC, Defendant, represented by DENEAN K. STURINO, O'HAGAN SPENCER LLC, JOSEPH E. VAUGHAN, O'HAGAN LLC & AMY C. LACHOWICZ, O'HAGAN LLC. MACROCHEM CORPORATION, Defendant, represented by JOHN S. SUMMERS, HANGLEY ARONCHICK SEGAL & PUDLIN, JORDAN D. HERSHMAN, BINGHAM MCCUTCHEN LLP, MICHAEL D. BLANCHARD, BINGHAM MCCUTCHEN LLP, CHRISTOPHER M. WASIL, BINGHAM MCCUTCHEN LLP & ROBERT WIYGUL, HANGLEY ARONCHICK SEGAL & PUDLIN. ACCESS PHARMACEUTICALS, INC., Defendant, represented by JOHN S. SUMMERS, HANGLEY ARONCHICK SEGAL & PUDLIN, JORDAN D. HERSHMAN, BINGHAM MCCUTCHEN LLP, MICHAEL D. BLANCHARD, BINGHAM MCCUTCHEN LLP, CHRISTOPHER M. WASIL, BINGHAM MCCUTCHEN LLP & ROBERT WIYGUL, HANGLEY ARONCHICK SEGAL & PUDLIN. MARK N. LAMPERTBVF INC., Defendant, represented by JEFFREY G. WEIL, COZEN O'CONNOR, JOSEPH P. DEVER, JR., COZEN O'CONNOR & TAMAR S. WISE, COZEN O'CONNOR. PATH: Faces Class Action Over Alleged TCPA Violation ---------------------------------------------------- Wendy Davis, writing for Online Media Daily, reports that for the third time this year, mobile social network Path has been hit with a potential class-action lawsuit for allegedly spamming cell phone users. In this latest case, San Diego resident Karen Montes alleges that the company sent her a message stating that someone else -- Paris Tobin -- wants to share photos with her on Path. Ms. Montes says that Path's message violates the federal Telephone Consumer Protection Act, which prohibits companies from using automated dialers to send SMS ads to people's cell phones without their consent. Ms. Montes filed suit in the Southern District of California and is seeking class-action status. Earlier this year, Illinois resident Kevin Sterk filed a similar lawsuit, which is now pending in federal court in that state. A second case, filed this summer by other consumers, was recently withdrawn without prejudice -- meaning that the consumers can bring it again. Path has moved to dismiss Mr. Sterk's case, arguing that it didn't initiate the message sent to him, but merely transmitted it on behalf of Mr. Sterk's friend. The company adds that the message's content -- telling him that his friend wanted to share photos with him -- proves "it was solely an informational text message," as opposed to an ad. But Mr. Sterk counters in court papers that the text message linked to Path's site, which urged him to "submit personal information and register an account for Path's services." Path also contends that it doesn't use the type of automated dialing service covered by the Telephone Consumer Protection Act. That matter is pending in front of U.S. District Court Judge Samuel Der-Yeghiayan in the Northern District of California. Path is one of many companies to face litigation allegedly violating the Telephone Consumer Protection Act. Yahoo, Viacom and Google are among a host of others to face text-spam lawsuits. Google recently agreed to pay $6 million to settle a lawsuit alleging that its social apps company Slide used an automated dialing service to send SMS messages to people without first obtaining their consent. PETROCHINA COMPANY: Pomerantz Firm Files Class Action in New York ----------------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Sept. 20 disclosed that it has filed a class action lawsuit against The Petrochina Company Ltd. and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 13-cv-6180, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of Petrochina between April 26, 2012 and August 27, 2013 both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Petrochina securities during the Class Period, you have until November 2, 2013 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Petrochina is China's largest oil and gas producer and distributor, playing a dominant role in the oil and gas industry in the People's Republic of China. The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and financial performance. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company's senior officials were in non-compliance with the Company's corporate governance directives and code of ethics; (2) as a result, the Company was subject to investigation and disciplinary action by various governmental and regulatory authorities; (3) the Company's financial statements were materially false and misleading as they contained direct references to the Company's Code of Ethics, and statements regarding its compliance with regulations and internal governance policies; (4) the Company lacked adequate internal and financial controls; and (5), as a result of the foregoing, the Company's financial statements were materially false and misleading at all relevant times. Then, on August 27, 2013, the Company announced that the State- Owned Assets Supervision and Administration Commission (SASAC), which oversees China's state companies, launched an investigation of three senior officials, Vice-President and Secretary to the Board of Directors, Li Hualin, Executive Director and Vice- President Ran Xinquan, and PetroChina chief geologist Wang Daofu, for "severe breaches of discipline", a code word for corruption in the PRC. The company further reported that all three officials had resigned their positions effective immediately. As a result of this investigation, trading in Petrochina shares was halted on August 27, 2013. On this news, Petrochina shares declined $3.92 per share, or over 3.5%, to close at $107.82 on August 28, 2013. With offices in New York, Chicago, Florida, and San Diego, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. CONTACT: Robert S. Willoughby Pomerantz Grossman Hufford Dahlstrom & Gross LLP rswilloughby@pomlaw.com PEYTO EXPLORATION: Aware of Potential New Open Range Class Action ----------------------------------------------------------------- Peyto Exploration & Development Corp. on Sept. 20 disclosed that it has received correspondence from a law firm representing two shareholders of Poseidon Concepts Corp. advising that such counsel has been instructed to finalize and file an application to seek leave of the Alberta Court of Queen's Bench to pursue a class action lawsuit against Peyto, as a successor to new Open Range Energy Corp. The proposed action contains various claims relating to alleged misrepresentations in disclosure documents of Poseidon (not New Open Range), which claims are also alleged in class action lawsuits filed in February 2013 against Poseidon and certain of its current and former directors and officers, and underwriters involved in a public offering of common shares of Poseidon completed in February 2012. Pursuant to a plan of arrangement announced on September 6, 2011 and completed on November 1, 2011, Poseidon (formerly named Open Range Energy Corp.) completed a corporate reorganization resulting in two completely separate publicly-traded companies: Poseidon, which continued to carry on the energy service and supply business; and New Open Range, a corporation incorporated on September 14, 2011 for purposes of participating in the arrangement, which carried on Poseidon's former oil and gas exploration and production business. Peyto acquired all of the issued and outstanding common shares of New Open Range approximately one year later, on August 14, 2012. On April 9, 2013, Poseidon obtained creditor protection under the Companies' Creditor Protection Act. Among the allegations in the proposed class action are that New Open Range (a separate and distinct legal entity from Poseidon) knowingly influenced Poseidon, or persons acting on behalf of Poseidon, to release certain disclosure documents which are alleged to include misrepresentations, or influenced the directors or officers of Poseidon to authorize, permit or acquiesce in such release. The proposed class action seeks various declarations and damages including compensatory damages which the plaintiffs estimate at $651 million and punitive damages which the plaintiffs estimate at $10 million, which damage amounts appear to be duplicative of damage amounts claimed in the class actions against Poseidon, certain of its current and former directors and officers, and underwriters involved in a public offering of common shares of Poseidon completed in February 2012. The application seeking leave to pursue the proposed class action against Peyto has not been filed. If the application is filed, Peyto intends to vigorously oppose the application. Peyto believes the claims against it (as successor to the newly formed New Open Range) are unprecedented and are without merit. If, despite Peyto's opposition, the application to pursue the proposed class action is granted, the proposed class action still cannot proceed unless certified by the Court. Such certification will also be strongly opposed, as will all steps the plaintiffs may take to pursue such a claim against Peyto. Peyto will continue to aggressively protect its interests and the interests of its shareholders and will seek all available legal remedies against the plaintiffs, including recovery of all costs incurred by Peyto in defending the threatened action. PORTLAND GENERAL: Still Faces Suits by Electric Service Customers ----------------------------------------------------------------- Portland General Electric Company continues to face suits filed in Marion County Circuit Court on behalf of two classes of electric service customers, according to the company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. In two separate legal proceedings, lawsuits were filed in Marion County Circuit Court against PGE in 2003 on behalf of two classes of electric service customers. The class action lawsuits seek damages totaling $260 million, plus interest, as a result of the Company's inclusion, in prices charged to customers, of a return on its investment in Trojan. In 2006, the Oregon Supreme Court issued a ruling ordering the abatement of the class action proceedings until the Public Utility Commission of Oregon (OPUC) responded to the 2002 Order. The Oregon Supreme Court concluded that the OPUC has primary jurisdiction to determine what, if any, remedy can be offered to PGE customers, through price reductions or refunds, for any amount of return on the Trojan investment that the Company collected in prices. [2002 Order: In 2000, PGE entered into agreements to settle the litigation related to recovery of, and return on, its investment in Trojan. The settlement, which was approved by the OPUC, allowed PGE to remove from its balance sheet the remaining investment in Trojan as of September 30, 2000, along with several largely offsetting regulatory liabilities. After offsetting the investment in Trojan with these liabilities, the remaining Trojan regulatory asset balance of approximately $5 million (after tax) was expensed. As a result of the settlement, PGE's investment in Trojan was no longer included in prices charged to customers, either through a return of or a return on that investment. The Utility Reform Project (URP) did not participate in the settlement and filed a complaint with the OPUC challenging the settlement agreements. In 2002, the OPUC issued an order (2002 Order) denying all of the URP's challenges. In 2007, following several appeals by various parties, the Oregon Court of Appeals issued an opinion that remanded the 2002 Order to the OPUC for reconsideration.] The Oregon Supreme Court further stated that if the OPUC determined that it can provide a remedy to PGE's customers, then the class action proceedings may become moot in whole or in part. The Oregon Supreme Court added that, if the OPUC determined that it cannot provide a remedy, the court system may have a role to play. The Oregon Supreme Court also ruled that the plaintiffs retain the right to return to the Marion County Circuit Court for disposition of whatever issues remain unresolved from the remanded OPUC proceedings. The Marion County Circuit Court subsequently abated the class actions in response to the ruling of the Oregon Supreme Court. On February 6, 2013, the Oregon Court of Appeals issued an opinion that upheld the 2008 Order [The OPUC then issued an order in 2008 (2008 Order) that required PGE to provide refunds, including interest from September 30, 2000, to customers who received service from the Company during the period from October 1, 2000 to September 30, 2001]. Because the opinion remains subject to a possible appeal by the plaintiffs and the class actions described remain pending, management believes that it is reasonably possible that the regulatory proceedings and class actions could result in a loss to the Company in excess of the amounts previously recorded and discussed. Because these matters involve unsettled legal theories and have a broad range of potential outcomes, sufficient information is currently not available to determine PGE's potential liability, if any, or to estimate a range of potential loss. PORTLAND GENERAL: Plaintiffs Balk at $33.1MM Refund Order --------------------------------------------------------- Class Action Plaintiffs filed petitions with the Oregon Supreme Court seeking review of the decision by the Oregon Court of Appeals to uphold an order requiring Portland General Electric Company to refund $33.1 million to customers, according to the company's Aug. 2, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. The suit is Citizens' Utility Board of Oregon v. Public Utility Commission of Oregon and Utility Reform Project and Colleen O'Neill v. Public Utility Commission of Oregon, Public Utility Commission of Oregon Docket Nos. DR 10, UE 88, and UM 989, Marion County Oregon Circuit Court, Case No. 94C-10417, the Court of Appeals of the State of Oregon, the Oregon Supreme Court, Case No. SC S45653. As a result of its reconsideration of the Settlement Order, the OPUC issued an order in September 2008 that required PGE to refund $33.1 million to customers. The Company completed the distribution of the refund to customers, plus accrued interest, as required. In October 2008, the URP and the Class Action Plaintiffs separately appealed the September 2008 OPUC order to the Oregon Court of Appeals. On February 6, 2013, the Oregon Court of Appeals issued an opinion that upheld the September 2008 OPUC order. On May 31, 2013, the Court of Appeals denied the appellants' April 3, 2103 request for reconsideration. On July 25, 2013, the appellants filed petitions with the Oregon Supreme Court seeking review of the February 6, 2013 Oregon Court of Appeals decision. QANTAS AIRWAYS: Mediation in Air Freight Fixing Suit Set for Nov. ----------------------------------------------------------------- The Australian Associated Press reports that a dozen international airlines including Qantas will be taken to the Federal Court next year over allegations of fixing air freight surcharges. Law firm Maurice Blackburn filed a class action against the airlines in February 2007. Qantas, Air New Zealand, Singapore Airlines, Cathay Pacific, British Airways and Lufthansa Cargo are alleged to have engaged in cartel conduct between January 2000 and early 2007. The class action seeks damages on behalf of air freight customers who paid more than AU$20,000 to have goods transported to Australia. "This has been a long haul, but we are determined to see the group of members, mostly shippers of freight from small businesses to large multinationals, get compensation for the losses they allege they suffered at the hands of this notorious cartel," Maurice Blackburn principal Brooke Dellaveodova said in a statement. Justice John Middleton has ordered the parties to attend mediation on November 25 and 26, ahead of a Federal Court hearing set to start in October 2014. Maurice Blackburn are operating on a "no win, no charge" basis with litigation firm IMF Australia. The Australian Competition and Consumer Commission (ACCC) has been investigating possible price collusion among the airlines for many years, resulting in fines of nearly AU$100 million. * * * The Malaysian Insider reports that Malaysia Airlines and Singapore's SIA are among several international airlines named in a class action filed in 2007 in Australia. They will be taken to the Federal Court next year over allegations of fixing air freight surcharges, Bernama quoted law firm Maurice Blackburn as saying. The court recently granted leave to some of the defendants to cross-claim against other airlines, including Malaysian Airlines Cargo Sdn Bhd. REVEL ENTERTAINMENT: Faces Class Suit Over Refund Promises ---------------------------------------------------------- Writing for Courthouse News Service, Cheryl Armstrong reports that an Atlantic City casino made millions by promising gamblers that it would refund their slot machine losses, but it never paid up, a class claims in Federal Court. Revel Entertainment Group LLC and Chatham Asset Management LLC are the co-owners and operators of Revel Atlantic City Hotel, Resort & Casino. After posting losses of $149 million last year, the companies aggressively promoted "Gamblers Wanted" this past summer to attract more customers and emerge from bankruptcy, according to the complaint. "This marketing campaign was conducted during June and July 2013 through various media outlets, including advertisements on television, radio, internet and outdoor posters and billboards," the complaint states. During July 2013, Revel allegedly promised customers that it would "refund all losses over $100 incurred at the Revel slot machines." Various advertisements ran that stated one of the following: "If you lose we'll give it all back," "In July refund all slot losses," "In July, you can't lose" and "All July slot losses refunded," the complaint states. Lead plaintiffs Margaret and Nicholas Peragine say the campaign was a hit, bringing consumers from all over to the Revel Casino in Atlantic City. "Revel's gross gaming revenue increased 33%, gross table revenue increased 36% and slot machine revenue increased 32% when compared to July 2012," according to the complaint. "Upon information and belief, Revel's slot machine revenue in July 2012 was approximately $17.5 million." The Peragines said they visited the Revel in July 2013 to "take advantage" of the defendants' promotion and both lost more than $100 on the slot machines. When they contacted Revel to receive their refund, however, a representative allegedly told them that "they would receive slot play dollars instead of cash and that the slot play dollars had no cash value and could only be used by gambling at the Revel Casino slot machines." The representative also told them that a flyer would be mailed to each of them further explaining the refund process, according to the complaint. "The flyer stated that plaintiffs would receive their 'refund' in the form of free slot play dollars in the amount of 5% of the total loss incurred during July 2013," the Peragines claim. "In order to claim the free slot dollars, plaintiffs had to 'Come to Revel each week to play [their] slot refund coupon." To receive their $100 in slot play dollars, the Peragines allegedly have to travel to the Revel for 20 straight weeks, according to the complaint. Missing a week would allegedly result in the total and permanent forfeiture of that week's slot play dollars. "None of the 'Gamblers Wanted' campaign advertisements stated there were any restrictions or limitations on the Slot Refund Offer, other than that the Slot Refund Offer only applied to losses of greater than $100 incurred during July 2013. Some, but not all, of defendants 'Gamblers Wanted' advertisements set forth other limitations and restrictions in conflicting and virtually unreadable fine print that was displayed too quickly for consumers to read and/or displayed in a font too small to be readable," the complaint states. While the miniscule font flashed for two seconds on television and Internet video advertisements, the online press release contained no disclaimer, restrictions or limitations, and the radio advertisements told listeners only to visit the Player's Club for details, the Peragines say. "A reasonable customer who viewed or heard defendants' 'Gamblers Wanted' advertisements would interpret such advertisements to mean that any slot losses incurred in excess of $100 during July 2013 would be immediately refunded to the customer in either cash or a cash equivalent," the complaint states. "Defendants' purposefully created and disseminated the 'Gamblers Wanted' advertisements that promised refund slot losses during July 2013 with the intention of never fulfilling such promises." The class seeks punitive damages for violations of the New Jersey Consumer Fraud Act, the New Jersey Truth-In-Consumer Contract, the Warranty and Notice Act, and the New York General Business Law, as well as breach of contract, unjust enrichment and bad faith. Chatham Asset Management declined to comment on the pending litigation, while Revel Entertainment Group did not return a request for comment. The Plaintiffs are represented by: Benjamin F. Johns, Esq. Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. CHIMICLES & TIKELLIS, LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 E-mail: bfj@chimicles.com josephsauder@chimicles.com mds@chimicles.com The case is Peragine, et al. v. Revel Entertainment Group LLC, et al., Case No. 1:13-cv-05451-NLH-AMD, in the U.S. District Court for the District of New Jersey (Camden). RITE AID: "Moore" and "Goode" Suits Are Related, Judge Says ----------------------------------------------------------- Rose Bouboushian, writing for Courthouse News Service, reports that a federal judge refused to assign a class action accusing Rite Aid of using an illegal LexisNexis background check on prospective employees to a new judge, saying it's similar enough to a case already before him. U.S. District Judge Jan DuBois in Philadelphia said the newer class action, filed in March, "shares a central core of common facts" with a 2011 class action filed against LexisNexis Risk & Information Analytics Group. "Both are putative class actions concerning LexisNexis's employment adjudications using the Esteem database," DuBois wrote, referring to a LexisNexis database that classifies individuals as thieves based on alleged "admission statements" submitted by employers. In the March lawsuit against Rite Aid and LexisNexis Search Solutions Inc., lead plaintiff Kyra Moore claimed the retailer refused to hire her when a background check using the Esteem database deemed her "noncompetitive." She said she'd never stolen from her previous employer, CVS, but may have set aside some items for future purchase that were later put back on the shelves or taken by someone else. Moore designated the case as related to Goode v. LexisNexis Risk & Information Analytics Group Inc., an action filed by former Forman Mills and Dollar General employees also accused of theft. The plaintiffs in that lawsuit accuse LexisNexis of violating the Fair Credit Reporting Act (FCRA) by denying them the opportunity to contest the Esteem reports. They say LexisNexis has a "contractual quid pro quo" arrangement with subscribers, whereby Esteem subscribers are required to contribute new records of theft incidents in exchange for database access to vet job applicants. DuBois refused to dismiss the Goode case last year. In a five-page order dated September 10, 2013, he rejected motions by Rite Aid and LexisNexis to have Moore's complaint randomly assigned to another judge and to strike its designation as related to the Goode complaint. "Rite Aid asserts that Goode and Moore are unrelated because of differences in the parties, allegations, time period, and requested remedies," DuBois wrote. "By concentrating on how the cases diverge, defendant's arguments miss the mark: related cases need not be identical." The two cases are related, he said, because they "contain a central event with a core of similarity." "The central legal question in each is whether LexisNexis's employment evaluations, as structured, violate provisions of the FCRA. Whether LexisNexis or its clients are alleged to have violated the FCRA, LexisNexis's practices when collecting information, creating reports, and providing notice are at issue in the two cases," DuBois wrote. "In short, the cases are related because the harm alleged to have been sustained by both putative classes stems from the same facts- the use of LexisNexis's employment adjudication services and whether such conduct violates the FCRA," he concluded. Rite Aid, the country's third-largest retail drugstore chain, reportedly operated 4,623 stores and made more than $25 million in revenue in 2012 as of March. The 4,100-employee LexisNexis Risk Solutions reported nearly $1.5 billion in revenue in 2012. The Plaintiff is represented by: David A. Searles, Esq. Erin Amanda Novak, Esq. John Soumilas, Esq. James A. Francis, Esq. FRANCIS & MAILMAN, P.C. Land Title Building, 19th Floor 100 South Broad Street Philadelphia, PA 19110 Telephone: (215) 735-8600 E-mail: dsearles@consumerlawfirm.com enovak@consumerlawfirm.com jsoumilas@consumerlawfirm.com jfrancis@consumerlawfirm.com - and - Irv Ackelsberg, Esq. LANGER GROGAN & DIVER PC Three Logan Square 1717 Arch St., Suite 4130 Philadelphia, PA 19103 Telephone: (215) 320-5660 Facsimile: (215) 320-5703 E-mail: iackelsberg@langergrogan.com Nadia Hewka, Esq. Sharon M. Dietrich, Esq. COMMUNITY LEGAL SERVICES 1424 Chestnut St. Philadelphia, PA 19102 Telephone: (215) 981-3793 Facsimile: (215) 981-0434 E-mail: nhewka@clsphila.org sdietrich@clsphila.org The Defendants are represented by: Jonathan D. Wetchler, Esq. Alison C. Morris, Esq. Caroline Austin, Esq. Sean Zabaneh, Esq. DUANE MORRIS LLP 30 South 17th Street Philadelphia, PA 19103 Telephone: (215) 979-1886 Facsimile: (215) 405-3734 E-mail: jwetchler@duanemorris.com acmorris@duanemorris.com caustin@duanemorris.com sszabaneh@duanemorris.com The case is Moore v. Rite Aid Hdqtrs Corp. et al., Case No. 2:13- cv-01515-JD, in the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia). SANOFI-AVENTIS US: Sued by Sale Agents of Zaltrap(R) Over Bonus --------------------------------------------------------------- Lisa Overton and Merribeth Bazzell, individually, and on behalf of a class of similarly situated individuals v. Sanofi-Aventis U.S., LLC d/b/a Sanofi US, Case No. 3:13-cv-05535-PGS-DEA (D.N.J., September 17, 2013) is brought on behalf of all current or former employees of Sanofi, who were eligible to receive commissions, bonuses, payments, benefits, or other compensation related to the sales of Zaltrap(R) in the third and fourth quarters of 2012. The Wage Payment Law required Sanofi to give advance notice to the Plaintiffs and Class Members of any change in the method by which his or her compensation was calculated, before putting the change into effect, the Plaintiffs note. In violation of the Wage Payment Law, Sanofi retroactively changed the agreed-upon uncapped pay-per-vial commission structure the day before compensation checks were owed and almost three months after the conclusion of the pay period for this compensation was earned, the Plaintiffs allege. Lisa Overton is a resident of Glen Allen, Virginia. She was employed by Sanofi as an Oncology Key Account Lead for the Washington D.C. sales territory. Merribeth Bazzell is a resident of Mandeville, Louisiana. She was employed by Sanofi as Senior Clinical Product Specialist, Oncology, for the New Orleans territory. The Plaintiffs and Class Members were employed by Sanofi to, among other things, promote and sell Zaltrap(R), which was being launched in the United States in August 2012. Sanofi is a Delaware limited liability corporation doing business as Sanofi US. The Company is engaged in research, development, manufacturing, marketing and sales of a variety of pharmaceutical and healthcare products in New Jersey and throughout the United States of America. The Plaintiffs are represented by: Adam M. Slater, Esq. Matthew Ross Mendelsohn, Esq. MAZIE SLATER KATZ & FREEMAN LLC 103 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 228-9898 E-mail: aslater@mskf.net mmendelsohn@mskf.net SHERWIN-WILLIAMS: Ruling in Lead Paint Suit Expected by Year-End ---------------------------------------------------------------- James R. Hagerty and Dionne Searcey at The Wall Street Journal report that lawyers for makers of house paint were due to make their final arguments on Sept. 23 in an effort to avoid a court ruling requiring them to spend as much as $2.5 billion to remove lead paint from hundreds of thousands of homes in California. While makers of cigarettes and products containing asbestos have been required to pay billions of dollars in damages to people hurt by those items, paint companies so far have been successful in fending off lawsuits blaming them for the health problems of people exposed to lead. Since 1978, the use of lead has been banned in residential paint in the U.S. Lawsuits have failed in Rhode Island, Missouri, Illinois, New Jersey and Wisconsin, often because plaintiffs couldn't establish that lead was a public nuisance, a legal standard that requires them to show the product interferes with public health and safety. The 13-year-old court battle in California marks one of the most ambitious legal challenges yet for the paint industry. The case finally went to trial in mid-July in a state Superior Court in San Jose. The judge, James Kleinberg, who is presiding over the case without a jury, is expected to issue his ruling before year-end. Asbestos cases are brought by individuals suffering from illnesses such as mesothelioma, a cancer of the lining of the lungs that most doctors believe is caused solely by asbestos exposure. Similar suits against tobacco makers that were brought by individuals flopped, but the litigation was successful when state attorneys general began suing tobacco defendants in the 1990s, and a massive settlement was reached. Plaintiffs in lead-paint litigation have struggled to get the courts to accept that lead is a public nuisance, but in California the courts have allowed the lawsuit to proceed as a public- nuisance case, though plaintiffs will still have to prove the paint companies are liable. The suit, filed by 10 city and county governments in California, seeks a court order requiring the defendants -- current or former makers or distributors of paint and pigments -- to pay to remove lead-paint hazards from homes and other buildings in Los Angeles County, San Francisco and other places where local governments have joined the legal action. The defendants are Sherwin-Williams Co., NL Industries Inc., ConAgra Grocery Products Co., DuPont Co. and Atlantic-Richfield Co., which is owned by BP PLC. Expert witnesses have said the cleanup efforts demanded by the suit could cost between $1 billion and $2 billion. Motley Rice, a law firm that has reaped large fees in asbestos and tobacco litigation, is representing the California plaintiffs on a contingency-fee basis. The suit says lead paint can "severely and permanently" damage children's mental and physical development and alleges that the defendants promoted the use of lead paint despite knowing about the risks. The suit quotes an internal Sherwin-Williams publication in 1904 describing lead in paint as "poisonous in a large degree, both for the workmen and for the inhabitants of a house painted with lead colors." A lawyer for Sherwin-Williams said that remark was in an article about a study that was later "disproven." The city and county governments aren't seeking the complete removal of lead paint from all homes. Instead, they want lead paint to be replaced or sealed on "friction surfaces," such as doors, windows and floors, where frequent movement could dislodge the paint. The defendants have argued that they couldn't have known 50 or more years ago the full risks of lead, and that the use of lead paint began declining after the 1920s as knowledge of the hazards grew. They say lead levels in children's blood in California generally have declined to minuscule amounts. They also note that old paint isn't the only source of lead risk to children; gasoline containing lead, also now banned, left residues in soil, for instance. California already has an effective program to deal with lead-paint hazards, the defendants argue, and the suit would create an overlapping layer of regulation. The cities and counties respond that current government programs "lack the resources to force homeowners to remove all lead paint from homes." The lawsuit argues that action is needed "before children are harmed," rather than only after they are exposed to lead. An unintended consequence, the defendants argue, is that landlords might be less inclined to keep old homes properly painted and maintained if they believe the industry would be required to pay for a cleanup. "This is a slumlord bailout," Antonio Dias -- afdias@jonesday.com -- a Jones Day partner representing Sherwin-Williams, said in an interview. The defendants also say that efforts to remove old paint could backfire by releasing hazardous material that now is buried under layers of modern, lead-free paint. The plaintiffs say hazards can be removed safely. Christopher Connor, chief executive of Sherwin-Williams, told analysts in July that the industry's past legal victories in Rhode Island and other states provide precedents for the California battle. Sherwin-Williams hasn't created a reserve to pay for a possible court-ordered cleanup, he said, adding: "We've never created a reserve for lead lawsuits." STELLARONE CORP: Faces Merger-Related Class Suit in Virginia ------------------------------------------------------------ StellarOne Corporation is facing a merger-related class action lawsuit in Virginia, according to the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On June 9, 2013, StellarOne Corporation ("StellarOne") and Union First Market Bankshares Corporation ("Union") entered into an Agreement and Plan of Reorganization (the "Merger Agreement") pursuant to which StellarOne will merge with and into Union (the "Merger"). In June 2013, a purported shareholder of StellarOne filed a lawsuit in the U.S. District Court for the Western District of Virginia captioned "Jaclyn Crescente v. StellarOne Corporation, et als." This lawsuit names StellarOne, members of StellarOne's board of directors, and Union First Market Bankshares Corporation as defendants, and is purportedly brought on behalf of a putative class of StellarOne's common shareholders and seeks a declaration that the lawsuits are properly maintainable as a class action with the named plaintiff as the proper class representative. The lawsuit alleges that StellarOne, StellarOne's board of directors, and Union First Market Bankshares Corporation breached duties and/or aided and abetted such breaches by failing to properly value the shares of StellarOne and agreeing to certain terms of the transaction. StellarOne believes that the claims are without merit. StellarOne Corporation -- http://www.stellarone.com/-- is a Virginia bank holding company headquartered in Charlottesville, Virginia. The Company's sole banking affiliate is StellarOne Bank headquartered in Christiansburg, Virginia. Additional subsidiaries include VFG Limited Liability Trust and FNB (VA) Statutory Trust II, both of which are associated with the Company's subordinated debt issues. SUBURBAN PROPANE: Defends Class Suit Alleging Consumer Claims ------------------------------------------------------------- Suburban Propane Partners, L.P., is defending itself against a a class action lawsuit alleging contractual and consumer statute claims, according to the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2013. Suburban Propane Partners, L.P. (the "Partnership") currently is a defendant in a putative class action in which the court has denied class certification without prejudice. The Partnership believes such lawsuit is without merit. In the putative class action, the Partnership has been successful in eliminating several of the claims such that only certain contractual and consumer statute claims remain. The Partnership is contesting this putative class action vigorously and has determined, based on the allegations and discovery to date, that no reserve for a loss contingency other than for legal defense fees and expenses is required. The Partnership is unable to reasonably estimate the possible loss or range of loss, if any, arising from this litigation. Suburban Propane Partners, L.P. is a publicly traded Delaware limited partnership principally engaged, through its operating partnership and subsidiaries, in the retail marketing and distribution of propane, fuel oil and refined fuels, as well as the marketing of natural gas and electricity in deregulated markets. The Company is headquartered in Whippany, New Jersey. SUBURBAN PROPANE: Settlement Proceeds Distribution Began Aug. 7 --------------------------------------------------------------- Distribution of settlement proceeds to class members commenced on August 7, 2013, according to Suburban Propane Partners, L.P.'s August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2013. The operations of Suburban Propane Partners, L.P. (the "Partnership") are subject to operating hazards and risks normally incidental to handling, storing and delivering combustible liquids such as propane. The Partnership has been, and will continue to be, a defendant in various legal proceedings and litigation as a result of these operating hazards and risks, and as a result of other aspects of its business. In this last regard, on May 9, 2013, a California trial court approved the settlement of a class action in which were alleged several claims relating to two fees charged by the Partnership in connection with its residential propane business in California. During the fourth quarter of fiscal 2012, to avoid both the continued expenses and burden of defending that action and the uncertainty inherent in all litigations, the Partnership entered into an agreement to settle that California action on a class-wide basis in return for the payment of a monetary sum and certain non-monetary consideration, and established an accrual of $4.5 million for the estimated cost of the settlement. Distribution of settlement proceeds to the class members commenced on August 7, 2013. Suburban Propane Partners, L.P. is a publicly traded Delaware limited partnership principally engaged, through its operating partnership and subsidiaries, in the retail marketing and distribution of propane, fuel oil and refined fuels, as well as the marketing of natural gas and electricity in deregulated markets. The Company is headquartered in Whippany, New Jersey. TOWER GROUP: Gardy & Notis Files Securities Class Action in N.Y. ---------------------------------------------------------------- Gardy & Notis, LLP on Sept. 20 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of New York, Case No. 13-CV-05852, on behalf of Robert P. Lang, and all similarly-situated persons and entities who purchased or acquired Tower Group International, Ltd. or its predecessor company Tower Group Inc. common stock between July 30, 2012 and August 8, 2013, inclusive. The action alleges that Tower and certain of its executive officers committed violations of the Securities Exchange Act of 1934. Any Tower investor wishing to serve as lead plaintiff in the above lawsuit must apply to the Court no later than October 21, 2013. If you are a Tower shareholder and wish to discuss this lawsuit or have any questions concerning your rights and interests, you may contact our Firm by calling 212-905-0509, or contacting the attorneys named below. Tower is a Bermuda-based insurance and reinsurance holding company that offers commercial, personal and specialty insurance products and services in the U.S. through its U.S. insurance subsidiaries and also offers reinsurance products globally. The complaint alleges that during the Class Period Tower and certain controlling individuals of Tower made fraudulent material misrepresentations and omissions regarding Tower's business and operations. Among other things, the complaint alleges that defendants materially misrepresented and/or failed to disclose the following adverse facts: (i) that the Company failed to properly estimate its loss reserve provisions as required by Generally Accepted Accounting Principles, and (ii) that the Company failed to properly allocate its goodwill and certain deferred tax assets. On August 7, 2013, Tower issued a press release announcing that it was postponing the release of its financial results for the second quarter of 2013 and its previously scheduled conference call to discuss the results, originally scheduled for August 8, 2013. In the press release, the Company stated that, "additional time is needed to review matters relating to the estimate of its loss reserves and, primarily due to the integration of the Canopius Bermuda merger, its allocation of goodwill and certain tax accounts." The Company also stated that it does not expect to file its quarterly report on Form 10-Q for the quarter ended June 30, 2013 by the required filing date of August 9, 2013. On August 8, 2013, the Company provided guidance on its second quarter 2013 results wherein it disclosed that the Company may record adverse reserve development of 60 million to 110 million pre-tax. The Company also disclosed that it had hired an independent actuarial firm to review selected areas of its loss reserves as of June 30, 2013. Following this news, the price of Tower's shares dropped 5.20 per share, or more than 24%, to a closing price of 16.41 per share on August 8, 2013. On August 9, 2013, the Company filed a Notification of Late Filing on Form 12b- 25 with the United States Securities and Exchange Commission. On August 13, 2013, the rating agency A.M. Best Co. put the ratings of the subsidiaries of Tower under review with negative outlook. The negative rating action also reflects the ratings agency's concern about an anticipated prior-year loss reserve charge of approximately 60 million to 110 million pre-tax. The Company's results might suffer from reserve leverage and the increased uncertainty with respect to future reserve charges. On September 17, 2013, Tower announced that it planned to release its second quarter 2013 financial results during the week of October 7, 2013. In the press release, Tower also reaffirmed that it is not providing and does not expect to provide any information with respect to its results for the second quarter, including the amount of any adjustments for its estimates of loss reserves and amounts of goodwill, until it releases its earnings for the second quarter during the week of October 7, 2013. As a result of this news, shares of Tower closed down nearly 30% on September 18, 2013. Plaintiff seeks to recover damages on behalf of all purchasers of Tower common stock during the Class Period. The plaintiff is represented by Gardy & Notis LLP, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. CONTACT: If you wish to discuss this action or have any questions concerning this notice, please contact: GARDY & NOTIS, LLP Mark C. Gardy, Esq. Jonathan A. Adler, Esq. 501 Fifth Avenue, Suite 1408 New York, New York 10017 Telephone: 212-905-0509 E-mail: mgardy@gardylaw.com Website: http://www.gardylaw.com UMG RECORDINGS: Court Resolves Discovery Dispute in "James" Suit ---------------------------------------------------------------- Magistrate Judge Maria-Elena James issued an order regarding a joint discovery dispute letter filed on July 18, 2012, in the case captioned RICK JAMES, by and through THE JAMES AMBROSE JOHNSON, JR., 1999 TRUST, his successor in interest, individually and on behalf of all others similarly situated, Plaintiffs, v. UMG RECORDINGS, INC., a Delaware corporation, Defendant, NO. C 11-1613 SI (MEJ), (N.D. Cal.). This is a consolidated putative class action for breach of contract, breach of the covenant of good faith and fair dealing, and statutory violations of various state laws against defendant, UMG Recordings, Inc., and its affiliated and subsidiary entities filed by plaintiff recording artists and producers, who allege that UMGR underpaid licensing royalties on digital downloads of Plaintiffs' recordings by paying them at the lower "records sold" rate, instead of at the higher "licensing" rate in their contracts. The parties have been unable to resolve their discovery disputes without assistance from the Court. The Court's August 29, 2013 Order concerns the most recent dispute, in which UMGR seeks an order compelling further responses to Interrogatory Nos. 29-35. These interrogatories seek information and damages calculations concerning Plaintiffs' implied breach of the covenant of good faith and fair dealing claims. A copy of the District Court's August 29, 2013 Order is available at http://is.gd/seoDnyfrom Leagle.com. Rick James, Plaintiff, represented by Cecilia Han -- chan@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, David M. Given, Phillips Erlewine & Given LLP, Eric B. Fastiff -- efastiff@lchb.com -- Lieff, Cabraser, Heimann & Bernstein,LLP, Kara M Wolke, Glancy Binkow & Goldberg LLP, Leonard B. Simon, The Law Offices of Leonard B. Simon PC, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Nicholas A. Carlin, Phillips Erlewine & Given LLP, Nicole Diane Reynolds, Lieff Cabraser Heimann & Bernstein, LLP, Robyn C. Callahan, Phillips, Erlewine & Given LLP & Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP. Carlton Douglas Ridenhour, 11-5321, Plaintiff, represented by David M. Given, Phillips Erlewine & Given LLP, Leonard B. Simon, The Law Offices of Leonard B. Simon PC, Aaron M. Sheanin, Pearson, Simon & Warshaw, LLP, Arthur Nash Bailey, Jr., Hausfeld LLP, Bruce L. Simon, Pearson, Simon & Warshaw, LLP, Bruce Lee Simon, Pearson Simon & Warshaw, LLP, Bruce J. Wecker, Hausfeld LLP, Clifford H. Pearson, Pearson, Simon & Warshaw LLP, Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, James J. Pizzirusso, Hausfeld LLP, Michael Paul Lehmann, Hausfeld LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Nicole Diane Reynolds, Lieff Cabraser Heimann & Bernstein, LLP, Robyn C. Callahan, Phillips, Erlewine & Given LLP, Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP & William James Newsom, Pearson, Simon & Warshaw, LLP. Dave Mason, 11-2431, Plaintiff, represented by Alexander Hilary Tuzin, Phillips Erlewine and Given LLP, Cecilia Han, Lieff, Cabraser, Heimann & Bernstein, David M. Given, Phillips Erlewine & Given LLP, Eric B. Fastiff, Lieff, Cabraser, Heimann & Bernstein,LLP, Kara M Wolke, Glancy Binkow & Goldberg LLP, Leonard B. Simon, The Law Offices of Leonard B. Simon PC, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Nicholas A. Carlin, Phillips Erlewine & Given LLP, Nicole Diane Reynolds, Lieff Cabraser Heimann & Bernstein, LLP, Robyn C. Callahan, Phillips, Erlewine & Given LLP & Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP. Whitesnake Productions (Overseas) Limited, 11-2431, Plaintiff, represented by Alexander Hilary Tuzin, Phillips Erlewine and Given LLP, Cecilia Han, Lieff, Cabraser, Heimann & Bernstein, David M. Given, Phillips Erlewine & Given LLP, Eric B. Fastiff, Lieff, Cabraser, Heimann & Bernstein,LLP, Kara M Wolke, Glancy Binkow & Goldberg LLP, Leonard B. Simon, The Law Offices of Leonard B. Simon PC, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Nicholas A. Carlin, Phillips Erlewine & Given LLP, Nicole Diane Reynolds, Lieff Cabraser Heimann & Bernstein, LLP, Robyn C. Callahan, Phillips, Erlewine & Given LLP & Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP. Ron Tyson, 12-1289, Plaintiff, represented by Aaron M. Sheanin, Pearson, Simon & Warshaw, LLP, Arthur Nash Bailey, Jr., Hausfeld LLP, Bruce Lee Simon, Pearson Simon & Warshaw, LLP, Bruce J. Wecker, Hausfeld LLP, Clifford H. Pearson, Pearson, Simon & Warshaw LLP, Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, David M. Given, Phillips Erlewine & Given LLP, Douglas Lowell Johnson, Johnson & Johnson LLP, James J. Pizzirusso, Hausfeld LLP, James Timothy Ryan, Johnson & Rishwain LLP, Jeffrey Alan Koncius, Leonard B. Simon, The Law Offices of Leonard B. Simon PC, Michael D. Hausfeld, Hausfeld LLP, Michael Paul Lehmann, Hausfeld LLP, Neville L. Johnson, Johnson & Johnson LLP, Raymond Paul Boucher, Kiesel Boucher Larson LLP, William James Newsom, Pearson, Simon & Warshaw, LLP, Nicole Diane Reynolds, Lieff Cabraser Heimann & Bernstein, LLP, Robyn C. Callahan, Phillips, Erlewine & Given LLP & Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP. William McLean, Plaintiff, represented by Nicole Diane Reynolds -- nreynolds@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Robyn C. Callahan -- rcc@phillaw.com -- Phillips, Erlewine & Given LLP, Roger Norton Heller -- rheller@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP & David M. Given -- dmg@phillaw.com -- Phillips Erlewine & Given LLP. Andres Titus, Plaintiff, represented by Nicole Diane Reynolds, Lieff Cabraser Heimann & Bernstein, LLP, Robyn C. Callahan, Phillips, Erlewine & Given LLP, Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP & David M. Given, Phillips Erlewine & Given LLP. Robert Walter "Bo" Donaldson, Plaintiff, represented by Nicole Diane Reynolds, Lieff Cabraser Heimann & Bernstein, LLP, Robyn C. Callahan, Phillips, Erlewine & Given LLP, Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP & David M. Given, Phillips Erlewine & Given LLP. THE TUBES, 11-2431, Intervenor Pla, represented by David M. Given, Phillips Erlewine & Given LLP, Elliot Perry Cahn, Law Ofc Elliot Cahn & Nicole Diane Reynolds, Lieff Cabraser Heimann & Bernstein, LLP. UMG Recordings, Inc., Defendant, represented by Jeffrey D. Goldman -- JGoldman@JMBM.com -- Jeffer Mangels Butler Mitchell LLP, Brian Meredith Yates -- BYates@JMBM.com -- Jeffer, Mangels, Butler & Marmaro & Ryan Scott Mauck -- rmauck@jmbm.com -- Jeffer Mangels Butler Mitchell LLP. UNFI CANADA: Recalls Bob's Red Mill Sorghum Flour ------------------------------------------------- Starting date: September 18, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Gluten Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: UNFI Canada Central Region Distribution: Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Quebec Extent of the product distribution: Retail CFIA reference number: 8334 Affected products: Bob's Red Mill 'Sweet' White Sorghum Flour 623 g. with sell by date of 11/07/2014 WALTER INVESTMENT: Faces "Cummings" Class Suit in Florida --------------------------------------------------------- Walter Investment Management Corp. is facing a shareholder class action lawsuit in Florida, according to the Company's August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On July 24, 2013, a putative shareholder class action complaint was filed in the United States District Court for the Middle District of Florida against the Company, Mark O'Brien, Charles Cauthen, Denmar Dixon, Marc Helm and Robert Yeary captioned Cummings, et al. v. Walter Investment Management Corp., et al., 8:13-cv-01916-JDW-TBM. The Complaint asserts federal securities law claims against the Company and the individual defendants under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b- 5 promulgated thereunder; additional claims are asserted against the individual defendants under Section 20(a) of the Exchange Act. The complaint alleges that between May 9, 2012, and June 6, 2013, the Company and the individual defendants made material misstatements or omissions about the integrity of the Company's financial reporting, including the reporting of expenses associated with certain financing transactions, and the liabilities associated with the Company's acquisition of Reverse Mortgage Solutions, Inc., or RMS. The complaint seeks unspecified damages on behalf of the individuals or entities which purchased or otherwise acquired the Company's securities from May 9, 2012, through June 6, 2013. The Company intends to defend the matter vigorously. Headquartered in Tampa, Florida, Walter Investment Management Corp. -- http://www.walterinvestment.com/-- is a full-service, fee-based provider to the residential mortgage industry. The Company's primary business provides value-added specialty servicing to the forward residential loan market across several product types including agency, non-agency, first and second lien and manufactured housing loans. The Company's specialty servicing business focuses on credit-sensitive residential mortgages. WELLS FARGO: Faces Suit in California Over Short Sale of Property ----------------------------------------------------------------- Wells Fargo conditions the short sale of property on being paid a security that offsets the deficiency between the amount due on the underlying purchase money loan and the price obtained through the short sale, a class claims. The case is Jason Hunt v. Wells Fargo Bank N.A.; Wells Fargo Home Mortgage, in the California Superior Court for Sacramento County. YAHOO! INC: Appeal From Dismissal of Stockholder Suit Pending ------------------------------------------------------------- An appeal from the dismissal of a consolidated stockholder class action lawsuit remains pending, according to Yahoo! Inc.'s August 8, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Since June 6, 2011, two purported stockholder class actions were filed in the United States District Court for the Northern District of California against the Company and certain officers and directors of the Company by plaintiffs Bonato and the Twin Cities Pipe Trades Pension Trust. In October 2011, the District Court consolidated the two actions under the caption In re Yahoo! Inc. Securities Litigation and appointed the Pension Trust Fund for Operating Engineers as lead plaintiff. In a consolidated amended complaint filed December 15, 2011, the lead plaintiff purports to represent a class of investors who purchased the Company's common stock between April 19, 2011, and July 29, 2011, and alleges that during that class period, defendants issued statements that were materially false or misleading because they did not disclose information relating to Alibaba Group's restructuring of Alipay. The complaint purports to assert claims for relief for violation of Section 10(b) and 20(a) of the Exchange Act and for violation of Rule 10b-5 thereunder, and seeks unspecified damages, injunctive and equitable relief, fees, and costs. On August 10, 2012, the court granted the defendants' motion to dismiss the consolidated amended complaint. The Plaintiffs have appealed. Yahoo! Inc. -- http://www.yahoo.com/-- together with its subsidiaries, operates as a digital media company that delivers personalized digital content and experiences through various devices worldwide. Yahoo offers online properties and services to users; and a range of marketing services to businesses. The Company's communications and communities offerings include Yahoo! Mail, Yahoo! Messenger, Yahoo! Groups, Yahoo! Answers, Flickr, and Connected TV. The Company was founded in 1994 and is headquartered in Sunnyvale, California. * "Rigorous Analysis" Buzzword in Class Action Jurisprudence ------------------------------------------------------------ D. Matthew Allen, Esq. -- mallen@carltonfields.com -- and Amanda Arnold Sansone, Esq. -- asansone@carltonfields.com -- at Carlton Fields report that without a doubt, the term "rigorous analysis" has become a buzzword in current class action jurisprudence. In recent years, the Supreme Court has issued landmark class action decisions in Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend that further entrenched the phrase into the lexicon of class action practitioners. But do these most recent "rigorous analysis" decisions signal a sea change in class action jurisprudence? We think not. Rather, we see Comcast, Wal-Mart, and even a decision many observers consider an outlier, Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, as a natural progression of the slow evolution of the class action device. This article describes that progression. Historically speaking, we see judicial treatment of class actions under Rule 23 in terms of four distinct phases: the Innovation Phase (1966 to early 1970s), the Realistic Phase (mid-1970s to early 1980s), the Formalism Phase (early 1980s to 1995), and, most recently, the Rigorous Analysis Phase (1995 to present). Based on recent Supreme Court precedent, the Rigorous Analysis Phase is not going away anytime soon. Phase 1: Innovation Phase (1966 to early 1970s) During the Innovation Phase, courts viewed the class action device as an exciting new tool to efficiently manage and resolve complex cases -- and also to advance social justice. Courts in this phase emphasized the virtue of the class action as opening the door to the courthouse to litigants who otherwise would be precluded from bringing their claims. At the same time, courts in the Innovation Phase dismissed potential management difficulties associated with the trial of multiple, diverse claims at one time, particularly in such areas as injury, causation and damages. For example, in Siegel v. Chicken Delight, Inc., an early antitrust class action, the defendants argued that there were "immense difficulties and complexities" in determining the amount of damages actually suffered as a result of an alleged antitrust violation. The district court responded -- in language that would be repeated in multiple decisions -- that "any detailed discussion of the subject at this juncture of the proceedings would be premature." The courts in the Innovation Phase were confident that whatever difficulties were predicted by defendants, they would not materialize in practice or would be worked out down the road. These assumptions, of course, proved unduly optimistic. One commentator of the day reported in 1973 that more than 53 percent of the class actions filed in 1966 were still pending in 1971, observing that "this is certainly not the kind of increased efficiency which the framers of the amended Rule had in mind." These difficulties led Second Circuit Chief Judge Lumbard to write in dissent from the reversal of the district court's denial of certification in Eisen v. Carlisle and Jacquelin that he considered the case to be a "Frankenstein monster posing as a class action." So what did courts do to get a handle on management difficulties? They tried innovative techniques. One proposed method was to try common issues first and save individual issues for later determination. Another was to permit plaintiffs to recover aggregate damages under a fluid recovery concept. Eventually, many courts and commentators alike recognized that these innovations did not make unmanageable class actions more manageable. Instead, they made settlements more likely. Phase 2: Realistic Phase (mid-1970s to early 1980s) As the excesses of the Innovation Phase became apparent, in the late 1970s, the courts moved into a new phase -- the Realistic Phase. This Phase is characterized by retrenchment as courts and commentators began to better appreciate some of the limits of the class action device. Indeed, in this phase, notably in antitrust cases, several courts of appeal began to caution district courts against too-quick certification decisions. The Ninth Circuit, among others, warned that treating class members collectively without consideration of individual issues "significantly alters substantive rights," and such "enlargement or modification of substantive . . . rights by procedural devices is clearly prohibited by the Enabling Act that authorizes the Supreme Court to promulgate the Federal Rules of Civil Procedure." The culminating case in this phase was the Supreme Court's 1982 decision in Gen. Telephone Co. of Southwest v. Falcon.11 In that case, the district court had certified an employment discrimination class action. Some members of the class were denied promotion allegedly because they were Mexican-American. Others allegedly were denied being hired altogether because of their race. They were lumped together in the same class based on an "across the board" rule that a named plaintiff employee complaining of one allegedly discriminatory practice could represent class members complaining of a different practice. This across the board rule was based on a presumption that all the class claims were fairly encompassed within the named plaintiff's claim, satisfying Rule 23(a)(3) typicality. The Supreme Court rejected the rule and its presumption of discrimination. The Court made two important pronouncements in doing so. First, it stated: "Actual, not presumed, conformance with Rule 23(a) remains . . . indispensable."12 Second, it announced that district courts are to undertake a rigorous analysis before certifying a class under Rule 23(a). Phase 3: Formalism Phase (early 1980s to 1995) Eventually, Falcon would lay the foundation for the current Supreme Court attitude of healthy skepticism toward certification of broad, diverse classes. In the immediate aftermath, however, courts merely gave lip service to Falcon. And beginning in the early 1980s, district courts began to abandon the carefully crafted, fact-driven framework established by the circuit courts in the Realistic Phase of the late 1970s. In Phase 3, the Formalism Phase, certification decisions were more driven by pigeon-holing cases into wooden legal categories rather than engaging in fact-intensive analysis. This phase is characterized by an unusual deference to plaintiff's allegations and experts. Courts' analyses tended to consist primarily of repeated legal pronouncements from prior opinions, building on one another, but often pieced together in a formalistic, uncritical way without substantial consideration of whether the facts and circumstances of one case truly apply to another. Courts throughout the country emphasized several dubious legal principles that stacked the deck in favor of certification. Those legal principles included, for example, that the court cannot prejudge the merits, that the court must accept the facts in the complaint as true, that doubtful cases should be certified, that liability is the overriding issue over causation and damages, and that plaintiff's expert testimony should be given deference. And these decisions were essentially unreviewable. Until the enactment of Rule 23(f) in 1998, there was no vehicle to appeal a class certification decision other than go to trial and judgment first. Very few defendants were willing to take that risk. Phase 4: Rigorous Analysis Phase (1995 to present) By 1995, though, the appellate courts had had enough. In a three- year period, from 1995 to 1997, the Fifth, Sixth, Seventh, Ninth and Eleventh Circuits had all decertified major, ambitious mass tort products liability and race discrimination class actions. What made several of these decisions even more extraordinary is that they were decided on writs of mandamus, before the enactment of Rule 23(f). This was the advent of the Rigorous Analysis Phase, which took hold in fits and starts in various subject areas and which has accelerated over the past three years. In 1997 and 1999, the Supreme Court joined the fray, issuing landmark opinions that decertified two massive settlement classes in Amchem Products v. Windsor20 and Ortiz v. Fibreboard Corp. Amchem is a fascinating case because it was never intended to be litigated. It was prepackaged as a settlement class when filed. The case involved a global settlement of all then-current and future asbestos-related claims in the entire federal court system. It was the most ambitious settlement reached under the auspices of Rule 23. The settlement involved something for everyone. But not equally. Future claimants, for example, received far less in compensation than already injured claimants. The district court approved the certification of a settlement class over numerous objections. The Third Circuit reversed because the Rule 23 adequacy and predominance requirements were not satisfied. The Supreme Court agreed with the Third Circuit. It held that the district court had improperly substituted fairness and efficiency concerns for an evaluation of the Rule 23 requirements, which had to be satisfied even in the settlement context. The court forcefully reminded trial courts that they "are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure 'shall not abridge . . . any substantive right.'" The court concluded its analysis with the not too subtle warning that "the rulemakers' prescriptions for class actions may be endangered by 'those who embrace [Rule 23] too enthusiastically just as [they are] by those who approach [the rule] with distaste.'" In 1998, Rule 23(f) was enacted, giving litigants the right to seek permission to appeal class certification decisions to the courts of appeals. But it took 13 years after the enactment of Rule 23(f) for the next significant class action appeal to reach the Supreme Court. That case was Wal-Mart Stores, Inc. v. Dukes in 2011. By 2011, the federal courts of appeals had brought some sense of stability to much of class action jurisprudence. Many federal courts took seriously the Supreme Court's admonition in Falcon that rigorous analysis was required before a class could be certified. Frankly, most of the problem cases were in the state courts. Then, after years of failed attempts, in 2005, Congress passed the Class Action Fairness Act, which made it easier to get state law class actions into federal court under a relaxed diversity jurisdiction standard. So things were better. But every now and then a decision like the California district court's Wal- Mart Stores, Inc. decision would pop up. In 2000, a 54-year-old worker at a California Wal-Mart Store, Betty Dukes, alleged that she was a victim of sex discrimination. She had six years of positive performance reviews. Nonetheless, she was denied the training she needed to advance to a higher salary position. Wal-Mart argued that she was denied the opportunity to advance because she clashed with a female supervisor and was disciplined for returning late from lunch breaks. Ms. Dukes argued that Wal-Mart had a policy of discriminating against women. She filed a lawsuit in San Francisco district court, along with three other women, seeking to represent 1.6 million women who worked or previously had worked at a Wal-Mart store since 1998. The plaintiffs sought on behalf of this massive, sprawling class injunctive relief, a declaratory judgment, backpay, and punitive damages. In June 2004, the district court certified under Rule 23(b)(2) the largest employment discrimination class in history. In 2007, the Ninth Circuit affirmed the class certification in a split decision 2-1. In 2009, the full Ninth Circuit granted rehearing en banc and voted 6-5 to affirm the certification.26 The Supreme Court reversed. There are a number of significant features to the decision: The court put to rest the old saw that class certification can be based on the allegations of the complaint, which are taken as true, along with the language from the 1970s Eisen decision that was so prevalent in the formalistic decisions of the 1980s and early 1990s -- that the court could not examine the merits in determining whether to certify a class. The court flatly declared that the Rule 23 analysis is not a pleading standard. And rigorous analysis, the court said, often requires a preliminary peek at the merits in order to determine whether the Rule 23 requirements are met. Most of the federal circuits had already reached these conclusions. But the Supreme Court's emphasis rooted out the last vestiges of the deferential standard that so characterized the Formalistic Phase cases. The court resurrected the long-dormant Rule 23(a)(2) commonality requirement. Class action lawyers on both the plaintiff and defense side had long considered commonality to be a throw-away element that was easily satisfied for the plaintiff and most often conceded by the defendant. The thinking was, as long as a plaintiff could dream up one hypothetical common question that could be asked, that was sufficient. But the Supreme Court declared that commonality does not merely require the recital of any common question relating to the case. Any competently crafted class action complaint can satisfy this standard. Instead, commonality requires a common answer to the common question. In the case before the court, it required a showing that all class members suffered the same injury. That simply was not the case. There was no evidence of a general policy of discrimination at Wal-Mart. There could not have been, because hiring and promotion decisions were decentralized, made at a store-by-store level, not at the home office; The court strongly suggested but stopped short of explicitly requiring a Daubert inquiry into expert testimony at the class certification stage. In so suggesting, the court put to rest the pronouncement of the Phase 3 trial courts that considerable deference should be given to plaintiff's experts and that the court should avoid a battle of the experts in deciding whether to certify a class; The court rejected the notion advocated by the plaintiff that manageability problems with a large class action can be solved by trying the claims of a sample group of plaintiffs and applying the formula established in those trials to the remainder of the class. Trial by formula was a violation of the defendant's right to present all its available defenses, irrespective of whether those defenses made a class action more or less likely; and, The court said that claims for individualized money damages are not suitable for class certification under Rule 23(b)(2). Because the plaintiff sought back pay for the class, that was an effective claim for individualized money damages, and such money damages claims could only be certified under (b)(3), not (b)(2). Sea Change in Law? Was Wal-Mart a sea change in class action law? Yes and no. On commonality, the Wal-Mart opinion represented a significant change -- and tightening -- of the prior understanding of the Rule 23(a)(2) requirement. In the two years since the decision was issued, there have been over 500 cases citing the new commonality standard. Many undoubtedly come out the same way they would have before Wal-Mart. But not all do. At least three circuits, the Fourth, Fifth and Eighth, have reversed certification decisions precisely because the district court did not sufficiently rigorously analyze commonality after the change in standard announced in Wal-Mart.37 Other than its tightening of the commonality requirement of Rule 23(a), Wal-Mart was actually not that novel. With respect to the other four points highlighted above, the decisive trend in the circuit courts already was to hold the same way as the Supreme Court did. And yet, at the level of ethos, Wal-Mart is terribly important. What Wal-Mart did was solidify in the minds of district judges that the Court meant what it said a long time ago in Falcon that rigorous analysis requires a close application of the detailed factual record to the precise elements of the cause of action, not just on commonality but on all the elements of Rule 23. Two cases decided by the Supreme Court this year prove the point. They reach seemingly disparate results, but when viewed closely against the framework of rigorous analysis that we have outlined, they graphically illustrate how this works. Taking the second decided case first, in Comcast v. Behrend,38 cable TV consumers alleged that their cable provider Comcast violated the antitrust laws by conspiring with other cable systems to increase Comcast's share of the Philadelphia market. The plaintiffs offered four theories of anticompetitive conduct. But the district court ruled that only one theory -- deterring overbuilders (companies that build over an existing cable company's geography) -- was capable of common treatment. The plaintiffs presented expert economic testimony to show classwide impact and damages. The district court certified a class even though the plaintiff's expert conceded that his modeling did not allocate classwide damages among the four different theories of anticompetitive conduct, and did not identify damages specifically attributable to the overbuilder theory. The Third Circuit affirmed, rejecting Comcast's argument that the court had to perform a Daubert analysis of the plaintiff's expert testimony at the class certification stage. Many observers were hoping that the Supreme Court would expand on its statement in Wal-Mart that a Daubert hearing is required to evaluate expert testimony at the class certification stage. They were disappointed. But they may have gotten something even better. In a 5-4 decision, the Supreme Court reversed the certification. Although the court ducked the Daubert issue, it did hold that, under the rigorous analysis standard, there was not a close fit between the plaintiffs' liability theory and its causation or impact analysis. In both Falcon and Wal-Mart, the Supreme Court had cited the rigorous analysis requirement in the context of applying the Rule 23(a) typicality and commonality requirements. In Comcast, for the first time, the court said the same analytical principles applied in the 23(b)(3) context and then added that (b)(3) predominance is even more demanding. Effectively, the Supreme Court has now declared that all the Rule 23 elements require a searching factual analysis, whether the procedural posture is a litigation class or settlement class, whether the class certification inquiry overlaps with the merits or not. Many observers believe that after Comcast and Wal-Mart, class certification hearings will become increasingly evidence-intensive and will require searching examination under Daubert of expert testimony. The other case is Amgen, Inc. v. Connecticut Retirements Plans and Trust Funds. The question in that case was whether plaintiffs in securities fraud class cases are required to prove at the class certification stage that the defendant made a material misstatement before the fraud on the market presumption could be triggered that would permit the plaintiff to rely on a presumption of reliance. The theory is that in an efficient market, the market price will reflect all publicly available information. Therefore, in Basic v. Levinson, the court had long ago decided that in an efficient market, the plaintiff is entitled to a rebuttable presumption that all purchasers of the security relied on the alleged misstatement in making their purchase. In Amgen, the Supreme Court ruled 6-3 that the plaintiffs do not have to prove materiality. Why? Because, according to the court, materiality is inherently a common question. It is an objective inquiry based on the significance of the misrepresentation to the reasonable investor. Amgen does not signal a retreat from the healthy skepticism signaled in Wal-Mart. Rather, the decision is simply a function of the present nature of securities litigation as a matter of substantive law. In other contexts, the courts have jettisoned procedural presumptions that support class certification in most contexts. The across the board presumption in the employment discrimination context is gone after Falcon. The "Bogosian shortcut" that allows an assumption of presumed impact in price-fixing cases is gone as well, for the most part. These and other presumptions so common in the earlier, more activist periods have gradually been rejected or ignored by the courts, clearing the way for defendants to vigorously defend against class certification by arguing that, on the critical question of predominance, individual issues of impact and damages predominate over supposed common issues of liability. But the fraud on the market presumption in securities cases is not a procedural presumption designed to aid class certification, it is a substantive law presumption applicable to all securities cases, class actions or otherwise. The Supreme Court in Basic expressly grounded the presumption -- not on the convenience of obtaining certification under Rule 23 -- but on "the congressional policy embodied in the 1934 Act." Ominously for plaintiffs, Justice Alito said in concurrence in Amgen that it may be time to reconsider the fraud on the market theory,43 which many scholars consider to be outdated and resting on a shaky economic foundation. Be that as it may, one thing the Supreme Court has emphasized over and over is that the class action device is purely procedural and cannot impinge upon the substantive requirements of the cause of action -- either to aid the plaintiffs, as in Amchem, or to aid the defendants, as in Amgen. In other words, the Supreme Court continues to insist that class action litigants take very seriously the explicit requirements of the cause of action in analyzing whether a class should be certified. The bottom line, in our opinion, is that Amgen does not weaken Wal-Mart's constraints on class certification. This was confirmed when the court decided Comcast after Amgen. So where does this leave us? We have a solid body of federal law jettisoning the formalistic line drawing of the early 1970s and the late 1980s and focusing heavily on how the case practically will be tried -- the application of the substantive elements of the cause of action to the specific facts of the claim. This means more up-front discovery in most cases. It means the class decision is pushed back to later in most cases. It means expert fights in most cases. But for the foreseeable future in federal class action jurisprudence, rigorous analysis remains the watchword. Asbestos Litigation ASBESTOS UPDATE: Lorillard Tobacco Faces $8MM Verdict in PI Suit ---------------------------------------------------------------- Adolfo Pesquera, writing for Daily Business Review, reports that an $8 million verdict that burdened Lorillard Tobacco Co. with a major portion of fault was hailed by the plaintiffs attorney as the largest award against a cigarette maker for an asbestos- related injury. From 1952 to 1956, Lorillard produced a version of its Kent brand cigarettes using a filter containing asbestos fibers. Richard Delisle, 74, of Leesburg was diagnosed in July 2012 with mesothelioma, a fatal lung cancer caused by asbestos. He contended the Kents he smoked as a teenager contributed to his disease. Lorillard attorney Ricardo Cedillo -- rcedillo@lawdcm.com -- of Davis, Cedillo & Mendoza in San Antonio, Texas, noted Mr. Delisle told health care providers he did not start smoking until about 1960. Mr. Cedillo alleged Mr. Delisle never smoked Kents with asbestos in filters. Even if he did, Mr. Cedillo said tests showed the amount of fibers released during smoking was negligible. He insisted Mr. Delisle must have contracted the illness from one of the other defendants. Defendants included Crane Co., a paper mill operator in Massachusetts where Mr. Delisle worked in the early 1960s fitting pipes. The gaskets he worked on contained asbestos. The jury found Lorillard 22% at fault and Hollingsworth & Vose Co., the filter manufacturer, also 22% at fault. The trial was heard before Broward Circuit Judge John Murphy. Because of a joint venture indemnity agreement between the two companies, Hollingsworth's liability shifted to Lorillard, said David Jagolinzer of Ferraro Law in Coral Gables, Mr. Delisle's attorney. Crane was found 16% at fault, Mr. Jagolinzer said. No liability was assigned to Mr. Delisle, and the remaining 40% was against Fabre defendants. The 44% portion against Lorillard, or $3.52 million, is the largest jury judgment ever awarded against a tobacco company in a mesothelioma case, Mr. Jagolinzer said. "There's never been one tried in Florida before," he said. "I picked a jury for one in Hillsborough, but the case settled before trial. In the nation, there have only been about five cases that have ever been successful. The highest verdict was for $1.2 million in a case in California." The case was filed in Broward because a defendant that was dismissed before trial, Premix-Marbletite Manufacturing Co., is based in Pompano Beach. ASBESTOS UPDATE: Fibro Found in Poteet Public Library ----------------------------------------------------- Adrian Delgado, writing for Pleasanton Express, reported that when Carol Merchant, longtime resident of Poteet, Texas, and former teacher, stepped onto the Poteet library floor in August, she instantly recognized what she thought was asbestos appearing to be underneath the tiles. According to the report, Merchant said the floor tiles were dirty and what appeared to be asbestos was "shredding, peeling and powdering". She called the Texas Department of State Health Services and requested an inspection. Ruth Murray of the TDSHS Asbestos Program visited the Poteet library on August 16th. Murray took photos and filed a report on her findings. Merchant gave Murray a Chemical Analysis that Chester Rackley of MARC III conducted on the library in 2011. The survey stated that 3% chrysotile asbestos was found in the brown floor tiles and the black mastic that adhered them to the floor. Chrysotile is the most common form of asbestos according to the U.S. Department of Health and Human Services. The International Agency for Research on Cancer and the U.S. Department of Health and Human Services consider asbestos to be a carcinogen and link it to a number of lung related diseases. For size comparison, a red blood cell is 6 micrometers. The report related that after the inspection Murray then sent an email to Poteet City Administrator Scott Moore requesting he conduct a new survey of the asbestos situation and to submit an asbestos management report within 90 days to the TDHHS. On August 18th, friends of Merchant called her as late as midnight to tell her that people had been in the Poteet library even though the library is normally closed on Sundays. Merchant found that the tile was cleaned off. Merchant contends that someone came in and cleaned the tile. It is her opinion that the survey that was requested of the City of Poteet will be inaccurate because it was cleaned. Ruth Murray returned to take more pictures and file another report after the tiles were cleaned. Soon after, Murray transferred to a different department with TDSHS and her position was filled by Ken Ofunrein. While 3% asbestos was indeed found in the library, TDSHS Press Officer Chris Van Deusen says that the amount of asbestos doesn't violate TDSHS rules. "Our rules really apply when there are renovations going on." According to The Texas Department of State Health Services Asbestos Regulatory Regulations, issued February 15, 2011, special precautions are required to remove tile and mastic that contains over 1% asbestos. Those special precautions prohibit contractors from using methods that would crumble, pulverize, or otherwise break up materials containing asbestos into small pieces. As of Sept. 16, Poteet City Administrator Scott Moore says that the city had hired Chester Rackley to do an asbestos survey on the library again in August. "When he [Rackley] came back out in August, he did not see that had changed significantly, so he really didn't give me an indication that we needed another assessment." Mr. Rackley recommended that the City of Poteet take one of two possible options: either write up an asbestos management plan, or remove the floor tile completely. According to Moore, the city of Poteet is choosing to remove the tile from the library. Moore is currently in the process of collecting estimates on what it would cost to take out the tile. Moore also said that the city is also in the process of filing paperwork with the US Department of Agriculture to obtain funds for a new library and community center. ASBESTOS UPDATE: Fibro Removed from St. Ignatius Retreat House -------------------------------------------------------------- Bart Jones, writing for Long Island Newsday, reported that workers are removing asbestos from the North Shore's historic St. Ignatius Retreat House, prompting fears among preservationists and community groups that the wrecking ball isn't far off. According to the report, North Hills Mayor Marvin Natiss said the work is legal and doesn't endanger the health of nearby residents. The village is sending out a letter to that effect. "Everything is being done absolutely in accordance with state regulations and law," under the supervision of the state Labor Department, Natiss said. "The residents are certainly protected." But preservationists and local civic groups view the work as bringing the 93-year-old former Jesuit estate where a future pope once stayed a step closer to demolition. "That is one of the things you do before you demolish a building," said John Bralower, vice chairman of the North Shore Land Alliance preservation group. "I would be shocked if it were not a prelude to demolition." The new owners of the mansion, Manhasset Bay Group Inc., which bought the 33-acre property for $36.5 million in July from the New York province of Jesuit priests, declined to comment. Natiss said he doesn't think the asbestos removal necessarily indicates the building will be torn down, since it would have to be removed even if the building was to be renovated. Officials have said the developers plan to turn the property into 66 upscale, single-family homes. Several local officials are now calling for the 87-room mansion, also known as Inisfada, to be saved. Nassau Legis. Richard J. Nicolello (R-New Hyde Park) wrote to state officials supporting a bid to put the building on the state and national registers of historic places. "This is not just a magnificent structure worthy of preservation because of its astounding architectural beauty, but it has also been a spiritual heart of the Long Island community for decades," Nicolello wrote. Assemb. Michelle Schimel (D-Great Neck) called St. Ignatius a "rare jewel" and said replacing it with a housing development could burden local schools with more students. "Already faced with a 2 percent cap that does not consider increasing enrollment as a factor, how can the school budget be sustainable if student enrollment balloons under this development?" she said. Natiss said he has no legal right to stop either the demolition or the planned development. He said that since the Jesuits removed a chapel where the future Pope Pius XII prayed in 1936, the house has little historical value. ASBESTOS UPDATE: Fibro at Whiteside County's Landfill Gets OK ------------------------------------------------------------- David Giuliani, writing for saukvalley.com, reported that asbestos may be on its way to Whiteside County's landfill -- at least from Prophetstown. According to the report, on Sept. 17, the County Board agreed to ask the state to allow asbestos at the landfill. This effort was prompted by Prophetstown's need to dispose of asbestos from the rubble of a downtown fire in July. Last month, county officials called the Illinois Environmental Protection Agency and were told it would take a long time to get approval for asbestos. Then they got political help. County Board Chairman Jim Duffy, D-Sterling, contacted Rep. Mike Smiddy, D-Hillsdale, who represents Whiteside County. Smiddy later got top IEPA officials on a conference call. And the state promised to fast-track the county's request. When the county started the landfill in the early 1990s, it banned asbestos as a way to alleviate neighbors' concerns. Houston-based Waste Management, which runs the landfill, is helping the county with its request. Mike Wiersema, the landfill's manager, said asbestos is a human health issue, not an environmental risk. It would be buried under other trash so that it doesn't go airborne, he said. "Prophetstown has done a good job of separating it. They have loads standing by," Wiersema said. Officials expect the IEPA to respond to the request within 3 weeks. If it's approved, then the county wouldn't have to go back to the agency. It could then develop rules for acceptance of asbestos, "so there isn't a free-for-all," Wiersema said. Duffy said the fast-tracking of the permit change wouldn't have been possible without Smiddy's help. The state officials, he said, wondered why the landfill didn't accept more special waste than it does. "That rather surprised me," he said. "They thought we were being too restrictive." Whiteside County's landfill is one of the few that doesn't accept asbestos. Lee County's is among those that do. ASBESTOS UPDATE: Widow of Mesothelioma Victim Warns of Risk ----------------------------------------------------------- Amy Dyduch, writing for This Is Local London, reported that a widow, whose husband died a painful death 50 years after he was exposed to asbestos, has warned others to get themselves checked. According to the report, Peter Blackburn died aged 71 in the Princess Alice Hospice in Esher on January 30, after a painful battle with mesothelioma -- a rare form of cancer most commonly caused by exposure to asbestos. An inquest held at West London Coroner's Court on September 17, his 25th wedding anniversary, gave the cause of death as bronchopneumonia and asbestos-related malignant mesothelioma. Mr Blackburn's widow Susan, 58, said: "I want to say to anyone if they get breathless and they've had exposure to asbestos then to go to see their doctor as soon as possible because I would hate anyone to go down Peter's route." The inquest heard Mr Blackburn, who was born in Barnes and spent his later life in Richmond, had worked as a builder and ripped out underground boilers that were covered in asbestos in 1963. Coroner Jeremy Chipperford said: "It is clear to me that this was an indiscriminate disease and that is the verdict that will be recorded. "This was a painful and distressing experience that he went through, both for the family and those treating him." The UK has one of the highest rates of mesothelioma in the world, largely because asbestos use continued in the UK long after it was halted in other parts of the world. Academics have suggested the number of mesothelioma cases might rise as those exposed to asbestos years ago begin to suffer the symptoms. Mr Blackburn, a fit and healthy man, had six trips to hospitals after he suffered from breathlessness and pain on his right side. He underwent a number of procedures including the fitting of a chest drain and had a Pet scan, but was always sent home. The inquest heard Mr Blackburn's case was a catch-22 because doctors did not have tissue evidence to administer cancer treatment drugs, which can kill patients who are frail if they do not have cancer. Mrs Blackburn said: "He was such a strong person and he wouldn't want anyone to suffer like he has. "It is the medical anguish he went through -- he said he wouldn't wish it on his worst enemy." The couple met in the Bull's Head Pub in Barnes in 1980, married eight years later and had two sons. Mr Blackburn served in the Army's second battalion for four years and when they later moved to Richmond, the couple would often enjoy walks in Kew Gardens and by the river. Mrs Blackburn said: "He had a fantastic sense of humour, was very loyal, hardworking, trustworthy, loved his family, loved travelling -- he was a happy bunny. "I really want people to be aware of asbestos because it is insidious and a really wicked thing." ASBESTOS UPDATE: Fibro Delays Start of Glick Bldg. Demolition ------------------------------------------------------------- Zach Short, writing for Hancock County Journal-Pilot, reported that the demolition of the Glick building on Main St. will take place once the asbestos removal has been completed, but there could be a short delay. According to the report, the contractor removing the asbestos floor tiles in the building discovered more asbestos in a transit pipe. The Carthage City Council approved and additional $3,690 to remove the asbestos source. With the demolition of the Glick building looming, there is concern for the public's safety for those shopping next door at The Christmas Shop. The Christmas Shop opens Oct. 1 through December, and owner Dan Gillogly has been approved $1,500 per month to rent the former Country Pastimes building on the north side of the square through the holiday season. There have been some issues with internet service for the Carthage Fire Department, and members are willing to discontinue their cell phones in exchange for better internet service. As of now, the speed of service with the current supplier is too slow to do any training. It was mentioned that all city departments are having the same issue. City Clerk Kathy Graham will investigate a current promotion being offered from Frontier, and cell phone service for the Fire Department will be cancelled and new internet service will be provided if the offer is deemed acceptable. The Fire Department will also be discussing and voting on whether they want to be involved with the First Responder program through Blessing Hospital. If the department participates, the city will support their decision and allow them to utilize one piece of equipment to go out on any call in. The Fire Department has also been hired to paint parking lines around the square for $2,000. Mayor Jim Nightingale reported that Shannon Duncan from the Western Illinois Regional Council (WIRC) had informed him that a grant number had been assigned to the emergency waterline project. The grant number means that the money has been designated for this project from the state, but the timeline is still unknown. Once the funding arrives, bids will be solicited. Community Development Director Amy Graham updated the council on the Chamber of Commerce activities as well as the Hometown Teams Exhibit from the Smithsonian and the Mayor's Round Table and its plans to proceed with the mapping program. It was announced the first mapping session will be held on Oct. 21 at Lake Hill Winery. The fee for this program will be shared among various groups and the city. ASBESTOS UPDATE: Deadly Dust Feared When Church Is Demolished ------------------------------------------------------------- Amelia Burr, writing for This Is Local London, reported that people living near a church containing asbestos fear they could be exposed to the dust when it is demolished. According to the report, the poisonous material was found in the ceiling of the hall of Chingford Hatch Methodist Church in Connington Crescent just before it was due to be knocked down to make way for a care home. People only found out when a resident spotted a folder belonging to the company marked 'Asbestos' in the church hall. They became concerned when sub-contractors were spotted burning materials in the rear of the church, causing smoke and dust to blow into their gardens. London Demolition, the company responsible for the works, immediately ordered the fire to be put out as it broke company policy. It has also moved to reassure the public, insisting measures are in place to ensure there is no threat to health. But Pam Mitchell, 63, is not convinced. She said: "Everybody's worried about it. There are children living nearby. "They say there's going to be sprinklers and glue but they don't know what the weather's going to be like, there could be asbestos dust everywhere." Sue Honour, 61, also of Connington Crescent, also remains anxious about the demolition. "It's very disconcerting when they light a bonfire and you get dust and smoke coming into your garden. That really did concern me because I didn't know what they were burning," she added. A 71-year-old man who also lives in the street but who refused to give his name, discovered there was asbestos in the church when he found a folder belonging to the demolition company inside the hall labelled 'asbestos'. "People see the word asbestos and they panic," he said. London Demolition has revealed the steps it will take to deal with the asbestos. Thomas Greenham, from the firm, said: "Before demolition works are carried out a refurbishment and demolition asbestos survey is carried out. This survey is carried out to identify the presence of any asbestos. "A refurbishment and demolition survey was carried out on June 20 2013 for 20 Connington Crescent. This survey identified 4sq m of asbestos cement in one of the room's ceilings. "We have soft stripped the building which will now enable the safe removal of the asbestos cement ceiling. This item will be removed in whole sections and will not be broken, which prevents the release of any asbestos fibres. "In addition to this the product will be sprayed with a PVA Glue water solution as an extra precaution before removal which further prevents and supresses any fibre release. The asbestos cement will then be double bagged and taken to a licenced landfill for safe disposal. "We were due to carry out these works but some residents have raised concerns about the presence of asbestos and as a result we have ceased works on site and have arranged to meet with the concerned residents to reassure them that we are carrying out the works safely by going through the health and safety procedures and method statement that will be carried out which will ensure the health and safety of our operatives, neighbours and the general public." ASBESTOS UPDATE: More Fibro Found at Brisbane Primary School ------------------------------------------------------------ The Australian Associated Press reported that more asbestos has been found at a Brisbane primary school. According to the report, excavators discovered the asbestos while digging trenches to lay down pipes behind one of the buildings at Graceville Primary School. The area and a nearby playground at the school have been closed off. This comes a week after construction workers found the potentially deadly substance while doing works to lay down the foundations for new classrooms. This resulted in the closure of the school's oval. The oval has since been reopened. Education Queensland says the latest contaminated area will be professionally cleaned. "Education Queensland has very strict asbestos management guidelines in place and ensures the safety of students and staff is its number one priority," the department's statement says. Material containing asbestos exists in most buildings constructed before 1990 and is not considered dangerous unless damaged or disturbed. Asbestos-related disease is slow to appear and can take more than 20 years before victims develop symptoms. ASBESTOS UPDATE: Residents Angered Over Fibro Left in Streets ------------------------------------------------------------- Chris Baynes, writing for Your Local Guardian, reported that outraged families have condemned "negligent" Croydon Council (in South London, England) for failing to clear up potentially lethal asbestos for six weeks after it was dumped near their homes. According to the report, safety campaigners have also criticised the inadequate response to dozens of calls from concerned Coulsdon residents about the toxic material, which can cause cancer, that was left in a public alleyway by fly-tippers. Experts have said the waste material should have been cleaned up within 24 hours and was particularly dangerous because it had been broken up. But instead council contractors refused to touch the dangerous corrugated asbestos sheets when they visited the alley -- where children regularly play -- in early August. The council finally arranged for the sheets to be collected after being contacted by the Croydon Guardian and MP Richard Ottaway. Furious residents are now considering complaining to the Local Government Ombudsman. The council apologised and blamed "miscommunication" for the delay, which it admitted was "clearly alarming". More than 4,500 people a year are thought to die from asbestos- related diseases, caused by the inhalation of dangerous fibres. It is understood a renegotiation of the contract between the council and the contractor is partly being blamed for the situation. Contractors only collected a pile of harmless building waste thrown into the alley, where children regularly play, which connects Westleigh Avenue and Chipstead Valley Road, when they first visited. Dad-of-two Colin Jakeman, 36, of nearby Chipstead Close, said: "Not everyone knows what asbestos looks like. It can be really nasty stuff. "It has been there for the best part of two months - it is not like the council can plead ignorance. It is a public health hazard - there are drains, kids play there and everyone is still using the alley. "The council were called and came out and cleared all the rubbish - everything except the asbestos. They obviously recognised it as asbestos and said 'oh no, we're not touching that' and left it." Judi Yates, 68, of Westleigh Avenue, said: "There are a lot of children along this road, as well as pregnant mums. "It can be really dangerous, especially when you have got big trucks trundling over it. "I feel the council have been negligent. We made that many phonecalls and they didn't seem to be do anything." Mrs Yates said a council call handler had told her the authority's contract with its hazardous waste disposal firm had expired and not been replaced. Another resident, Mario Celiberdi, claimed he had contacted the council several times a week before the asbestos was collected. A council spokesman denied it had let the contract lapse, but admitted a review of the contract had been "one of a number of factors" in delaying the collection. Tony Whitson, chairman of the Asbestos Victim Support Groups Forum, said the type of asbestos dumped was usually a low-level danger but could become "like a bottle of poison" when broken. He said: "All asbestos can be dangerous, so it has got to be treated seriously. "If asbestos sheets are left they are vulnerable to damage - either by children or anyone else - and that creates a problem. "It is like a bottle of poison. Leave the top off the bottle, you're fine - take it off, you're in trouble. When asbestos is broken and damaged the fibres can be released. "The reprehensible thing about the council in this case is to leave it there. They should deal with it expeditiously, within 24 hours. It is unacceptable." Margaret Sharkey, spokeswoman for London Hazards Centre, said: "It is not the heaviest industrial exposure, but there is no safe level and if you were in the vicinity you could have breathed in the fibres. "It is dangerous and people are right to be worried, especially because kids are more likely to develop the illnesses." A spokesman for Croydon Council said: "Unfortunately, miscommunication between officers and the contractors led to this flytipping not being removed as quickly as it should, and for this we apologise. "We can confirm that it has now been safely disposed of." ASBESTOS UPDATE: Deadly Dust Removed From Houston Hall ------------------------------------------------------ Daniel Gottfried, writing for The Tufts Daily, reported that workers contracted by the university abated asbestos in Houston Hall this summer during a routine renovation project. Asbestos is a mineral that was widely used in construction until 1973, when the Environmental Protection Agency (EPA) began to regulate its use due to its ability to cause lung and other organic diseases. Director of Facilities Services Bob Burns explained that abatement, or removal, of asbestos in buildings during renovation projects happens frequently and follows standard procedure. "There [were] asbestos found, but that isn't uncommon," he said. "For many buildings built prior to the 1980s, asbestos was used and has many different applications. Unless it is airborne, which is called 'friable' [asbestos], it isn't an issue." According to Burns, when renovation projects occur, the possibility arises that asbestos will be disturbed. "Our policy is, if there is asbestos in a space and we have to pull up the carpeting or any minor demolition, then we would abate the asbestos," Burns said. "You don't have to deal with asbestos just because it is under the floor. You have to deal with asbestos if you pull up the floor, and we always do that when we renovate any of our buildings." The project was completed over the summer when no students were residing in the hall, he added. "We do most of our renovations when students and faculty are gone," he said. Residents of Houston Hall were contacted last year informing them that the renovations and removal would occur following their departure from the dorm, according to a Resident Assistant in Houston Hall who wished to remain anonymous. "All we saw was preparation," he said. "I don't think there was any danger. The act or removal didn't take place until everyone was out." Burns said that he gives advance notice if a project will be occurring during the academic year. "When the activity is occurring, we inform all occupants," Burns said. "If we had to go into an academic building right now for whatever reason -- if something came loose -- our policy is to give everyone between ten days and two weeks' notice. But because [the Houston renovations] occurred this summer when no one was living there, we just took care of it." The renovations in Houston included updating bathrooms, common spaces and a number of rooms, he said. According to Burns, the Department of Facilities Services deals with asbestos cases regularly when it conducts renovations. "In the course of doing business, we know that there is asbestos because of when the buildings were constructed, but when we find it or encounter it, then we have to deal with it," he said. "You don't have to go looking for it." Burns said that Facilities brings in outside contractors for the abatement process. "We have to bring a contractor in who is trained to deal with this material and pull it off," he said. "It has to be contained and treated -- you can't just throw it in a dumpster somewhere." ASBESTOS UPDATE: Fibro Scare Closes Aylmer Police Station --------------------------------------------------------- Laura Armstrong, writing for Ottawa Citizen, reported that Gatineau's Aylmer sector police station was closed indefinitely at midday on Sept. 19 after insulating material that could potentially contain asbestos was found during renovations. According to the report, in an email to the Citizen, communication officers from the City of Gatineau said the police station at 625 ch. D'Aylmer, was pre-emptively closed to the public until further notice. The city, they said, uses an expert to carry out tests to determine the presence of asbestos in the building. Gatineau police said residents in Aylmer should call 819-246-0222 before travelling to a police station outside their sector. Depending on circumstances and need, Gatineau police will dispatch a patrol or have the caller travel to the police station in Hull, where the Aylmer station's officers and civilian personnel were moved temporarily. The station's closing will not affect territorial coverage and regular patrols, said Gatineau police. The emergency phone outside the Aylmer station is working and acts as a direct line to the emergency call centre. ASBESTOS UPDATE: ADAO Testifies to Congress to Aid Fibro Ban ------------------------------------------------------------ Mesothelioma News reported that the day that asbestos is banned within the United States might be coming closer thanks to the work of Linda Reinstein, head of the Asbestos Disease Awareness Organization. Linda testified at the House of Representatives Subcommitte hearing on Sept. 18 over the dated Toxic Substances Control Act, a bill that was implemented in 1976 and is in dire need of reform as our knowledge of dangerous toxins and carcinogens has expanded profoundly in the last 39 years. "Founded in 2004, ADAO is the largest independent, non-profit organization in America committed to bringing a voice to those hurt by asbestos. Since asbestos-related illnesses in America such as mesothelioma are more rare (albeit fatal and preventable) compared to other cancers, previously, many victims of asbestos and their loved ones felt alone, uninformed, unheard. Now, these individuals have a place to learn more about asbestos, mesothelioma and their treatment options; they have a place to share stories of their loves ones who have passed; they have a place to take action and contribute by helping to educate our communities and government officials on the very serious dangers at hand. With ADAO and the dedicated work of its head Linda Reinstein, we have a place from which we can share our stories, inspire others, start the process of healing and, perhaps most importantly, make sure that this never happens again. Some of this work towards banning asbestos must be done by our government officials who are pushed towards the right path by lawyers who represent those injured by asbestos in court. But the work of lawyers like those at Baron and Budd is incomplete without the testimony and shared stories of those injured by mesothelioma and their loved ones. Perhaps the most inspiring thing about Linda Reinstein, the ADAO and her testimony at the House Subcommitte is that Linda is not a lawyer, doctor, scientist, lobbyist or any other figurehead we typically associate with starting the seeds of change within U.S. law. Instead, Linda is simply a widow of mesothelioma. And from that intimate place of experience with the disease, Linda is perhaps the best person to face Washington with her story. Real change must be made within our government to protect our citizens from asbestos. A ban on asbestos use, manufacturing and importation must be enacted. At this time there is no ban in the current Toxic Chemical Reform Bill. As the Subcommittee reflects on Linda's testimony we ask them to take a page from Linda's playbook: House Subcommittee debating the need for TSCA reform, turn your country's pain into something positive for our future. Ban asbestos so that the people suffering from asbestos-related illnesses are heard; ban asbestos so that the loved ones of people suffering from asbestos-related illnesses may know that their suffering will not go unnoticed. We hope that the nearly four decades it took to consider amending the Toxic Substances Control Act of 1976 are put to good use, just as Linda turned her personal tragedy into a public service for good. We hope that in the decades to come, there will be no more mesothelioma." ASBESTOS UPDATE: Old Village Hall, Fire House Need Fibro Removal ---------------------------------------------------------------- Scott Moore, writing for Lindenhurst (N.Y.) Patch, reported that the moving of the Old Village Hall to its new home in Irmisch Park will be delayed for awhile, according to village officials, after asbestos in the building was found. According to the report, the building dates back nearly 100 years, when asbestos was used heavily in the construction of buildings, and it must be removed before the village can move the building into Irmisch Park, said administrator Shawn Cullinane. "The problem is the buildings are really old," Cullinane said. "The firehouse has been built, and rebuilt, several different times in the last 80 years." While the movement of the Old Village Hall will not be a major undertaking, Cullinane said the bigger concern was the main fire house, which is scheduled to be taken down and rebuilt. "When you demolish a building, you can't just let it fly into the air," Cullinane noted. " The fire house, due its large size, would have a ten-day posting period to let the public know of the removal. Afterwards, the removal will begin and the ongoing project would move on. Asbestos is a fire-resistant and insulating material that was used in construction during the early 1900's. It was later found to cause a slew of health maladies, including lung cancer and other organ problems. The removal of the harmful material will cost over $88,500 for the fire department's main house and over $18,000 for the Old Village Hall. The village had a contingency budget in place for the firehouse project in case of unforeseen costs such as this, which includes the moving of the Old Village Hall. ASBESTOS UPDATE: Aussies Not Protecting Themselves From Fibro ------------------------------------------------------------- Pat Guth, writing for Mesothelioma.com, reported that in a country where the rate of asbestos-caused cancer is higher than anywhere else in the world, little is being done to be certain that the next few generations of Australians are not subject to the same hazards as their parents and grandparents. According to the report, a recent study of New South Wales Residents, with results reported in the Sydney Morning Herald, indicated that those who participate in do-it-yourself projects at their homes or businesses rarely take steps to protect themselves from exposure to asbestos. "The study of almost 860 people who recently completed a do-it- yourself renovation found more than 61 per cent said they had been exposed to asbestos. More than one in five said their children had been exposed," the study reports. Co-author Dr. Anthony Johnson said he was appalled by the findings. "There is no safe level of exposure," said Dr Johnson, a respiratory physician from the Liverpool area. "We don't want to scare people, because the overall health risks are low, but we do see people who have mesothelioma and the only exposure they can recall is something like this." Noting that it takes an average of 42 years for mesothelioma to develop, Dr. Johnson fears that the disease is likely to be present in Australia for decades to come because of the careless attitude of those who encounter the material and believe it to be safe. "Asbestos was removed from fibro around 1984," he added. "But we are worried we are going to keep seeing cases for the next 40 years if people keep getting exposed. [Mesothelioma] is a horrible disease but it's completely preventable." The study showed that exposure occurs most often when DIYers cut, drill, or sand asbestos-containing building products such as insulation, roofing, tiles, and other similar items. More than half of those surveyed said they never, or only sometimes, wore protective masks while performing this work. Asbestos Diseases Research Institute director Nico van Zandwijk said the study was a warning to people who enjoy doing their own renovations or do so to save money. "The fact that more than 60 per cent of people said they were exposed - and that's just the people who could recall they were exposed - means that the level of awareness about the dangers of asbestos is insufficient," he said. "People need to think before they cut." DIY enthusiasts in the U.S. might also encounter asbestos during their renovations, depending on the age of their home. Individuals should always schedule a pre-renovation inspection of their home if it was built prior to about 1980 and they suspect that asbestos products may have been used. ASBESTOS UPDATE: Ohio Teachers Duct Tape Peeling Fibro Carpeting ---------------------------------------------------------------- Kristen Griffin, writing for Mesothelioma.com, reported that in a desperate bid to protect the health and safety of the students, faculty and staff of the Fairfield School District in Ohio are turning to duct tape to stave off any asbestos contamination in the classrooms. Peeling asbestos carpeting, no air conditioning, cramped space and general disrepair are forcing Fairfield School officials to consider replacing aging buildings. According to the report, though faculty recognize the implicit danger and incredible health hazards the deteriorating asbestos carpeting poses, sealing the peeling carpet with duct tape is not recommended. The bootstrap fix will not shield students and teachers from the dangers of asbestos exposure. Inhaling asbestos dust generated from a damaged asbestos-containing product can lead to mesothelioma cancer. Asbestos is not the only hurdle teachers face on a daily basis: cramped classrooms cramp learning; no air conditioning means that some classrooms in the aging buildings reach potentially deadly temperatures; and one elementary school must rely on lunches provided by another school since it does not have a kitchen. In the elementary school, the crumbling roof allows water to seep in causing mold. Before the Fairfield School District can move forward with razing and rebuilding the Central Elementary School and Freshman School, and building a brand new elementary school, district officials must ensure its financing. The Ohio School Facilities Commission has offered -- and the Fairfield School District has already accepted -- $19 million towards the $73 million overall project total leaving the district liable for the remaining $54 million. To help defray the enormous price tag, the Fairfield School District placed a $2.62 million bond on the November 5 ballot. Voters will have to decide whether the additional financial burden is worth funding the necessary repairs. For a $100,000 home, the bond will ultimately cost a homeowner $91.70 annually. Some residents agree that the school district needs new buildings but are against seeing the cost of the project reflected in an increased tax bill. Alternatives to levying a bond to pay for the project are also being considered by district officials. ASBESTOS UPDATE: Fibro Detection Halts Sydney Cruise Wharf ---------------------------------------------------------- Cameron Boggs, writing for Lloyd's List Australia, reported that discovery of a small amount of bonded-asbestos has led Sydney Ports management to immediately take action ensuring excavations at Sydney Overseas Passenger Terminal northern sea wall pose no threat to people. According to the report, a spokesperson for Sydney Ports told Lloyd's List Australia while bonded-asbestos is common in landfill and poses the least risk of the asbestos types, the company has decided to modify its site works to ensure there is no further excavation. ASBESTOS UPDATE: Grimsby Swimming Pool Closed Over Fibro Fears -------------------------------------------------------------- Grimsby Telegraph reported that Grimsby swimming pool closed after independent experts discovered a small amount of asbestos dust in the main pool hall. According to the report, specialist contractors were carrying out routine survey work and had found asbestos within non-operational parts of the building. Remedial work is underway, and immediate measures were taken to restrict access to those areas. These areas were not accessible by the public and clear signage is in place to avoid any risk of unauthorised entry. As part of this ongoing work, further tests have confirmed the need to take precautionary measures to temporarily close the pool hall area on health and safety grounds. Councillor Chris Shaw, leader of the Council, said, "An inspection by independent experts has found a small amount of asbestos dust in the main pool hall. We have acted quickly and taken immediate precautionary steps to close the building. Our first priority is the safety and wellbeing of the people who use Grimsby swimming pool." ASBESTOS UPDATE: Colorado Waives Fibro Cleanup for Flood Recovery ----------------------------------------------------------------- Keli Rabon, writing for TheDenverChannel.com, reported that relaxed state requirements for asbestos cleanup and removal have paved the way for a speedier recovery for homeowners and businesses affected by the devastating floods. But cleanup professionals say the trade-off could be putting people at risk. "You can't see it, taste it or smell it. There's no way you'll know without having a certified person come in and test for it," says an industrial hygienist and state-certified asbestos inspector whose name was withheld because he fears retaliation for speaking out, according to the report. On average, he says one in three homes in the state contains asbestos, and despite a common misconception that asbestos- containing products are no longer manufactured, the products are often shipped in from Canada and Mexico. "If you don't know if a material has asbestos in it, you have to assume the material does, and treat it as an asbestos-containing material until it can be sampled and proven to not have asbestos in it," the inspector said. But in flood cleanup guidance released, the Colorado Department of Public Health and Environment said, "To enable timely cleanup of flood debris . . . the department will temporarily not enforce certain regulatory requirements." When it comes to asbestos contamination, the document states that, "If this is not known, the material may be handled as non-asbestos flood debris, and disposed of at a permitted landfill." But the asbestos inspector disagreed. "Just removing the gross materials doesn't guarantee that all the asbestos fibers are going to be gone from the structure," the inspector said. "So there could still be asbestos in the home, even though the materials are taken out?" Call7 Investigator Keli Rabon asked. "Absolutely, because it's a microscopic fiber," he said. If inhaled, those microscopic asbestos fibers can cause chronic lung disease or cancer, like mesothelioma. Studies show it can take 20 to 30 years before symptoms appear. "Through this policy, is the state putting people at risk?" Rabon asked. "Absolutely," the inspector said. "I don't agree with that at all. The safety of our citizens, first-responders and cleanup crews is our number one priority," said Will Allison, CDPHE's Director of Air Pollution Control. Allison says the safest option is to clean flood debris as quickly as possible. "We've seen 20,000 homes damaged or destroyed by the recent flooding, and since that's not the traditional type of remodel we would see, we recognize that in some stances, traditional regulations, it's not practical to have them apply," Allison said. Previous guidance from the state has said, "Buildings of any age, even those newly built, may have asbestos containing material." Allison admits many people may not know if asbestos is in their home. "This may be another area where we provide some updated guidance in the near future," Allison said. The inspector told Call7 Investigators he hopes that revised guidance comes quickly. Otherwise, he fears people may face the impact of the flooding once again, many years down the road. "It just takes one fiber to get in there and start working its way through your lung to give you mesothelioma. Obviously, I'm not a medical expert, but I wouldn't want to gamble that with my children or myself," the inspector said. ASBESTOS UPDATE: Missouri Fibro Exposure Leads to Lawsuit --------------------------------------------------------- The Associated Press reported that an employee of Empire District Electric Co. alleges in a lawsuit that the utility exposed its employees to asbestos and other hazardous materials at a plant in southeast Missouri. According to the report, the lawsuit was filed in Jasper County Circuit Court by Les Rider, of Diamond. It seeks class-action status for employees who worked at the utility's Riverton plant. The lawsuit alleges that asbestos is peeling and flaking throughout the Riverton plant. It says Rider and other employees were told to get rid of various scrap materials in a way that environmental oversight employees would not find them, and that work exposed workers to asbestos fibers. Amy Bass, spokeswoman for Empire, told the Joplin Globe the company does not comment on pending litigation. ASBESTOS UPDATE: Toxic Dust Disturbed at Maroochydore High School ----------------------------------------------------------------- Noosa News reported that workers repaired and cleaned a classroom at Maroochydore High School (Queensland, Australia) overnight after the discovery of a small amount of asbestos dust. According to the report, a teacher and two year eight students disturbed the dust when they were lowering an overhead projector screen and the screws supporting one of the brackets suddenly pulled out of the wall. The material, less than a teaspoon full, originated from the six screw holes where the screen bracket had been secured to the wall. Testing of the powder confirmed it was asbestos. The Department of Education said the school had acted immediately to safeguard the teacher and students by enacting its asbestos management guidelines. They were provided with showers and replacement clothes and encouraged to consult a doctor if they had any concerns. The school immediately contacted the parents of both Year eight boys and will purchase new clothing for all three involved. Education Queensland has strict asbestos management guidelines and ensures the safety of students and staff is its number one priority. ASBESTOS UPDATE: Fibro Roofing in Malta Building Removed -------------------------------------------------------- Times of Malta reported that the asbestos roofing adjacent to Mizzi House, which houses the Malta Competition and Consumer Affairs Authority, in Blata l-Bajda has been removed. According to the report, PT Matic Environmental Services Ltd, which was entrusted with the job, said in a statement that materials were removed with minimum breakage. A dust suppressant was sprayed to the panels and debris to minimise any fibre release. Upon completion of works, a thorough environmental clean-up was conducted. All asbestos waste was double wrapped in thick gauge polythene, labelled and loaded into a steel container for disposal within a licensed landfill site in the EU. Several tests were undertaken prior to, during, and subsequent to the removal works in all the areas, for the personnel's safety and to ensure that no damage is done to the environment. ASBESTOS UPDATE: Dying Worker Wins $38MM for Fibro Exposure ----------------------------------------------------------- Sylvia Hsieh, writing for Lawyers.com, reported that a South Carolina worker who has less than a year to live after being diagnosed with mesothelioma won a $38 million jury award against the makers of equipment containing asbestos. According to the report, Lloyd Strom Garvin, 74, was exposed to asbestos in equipment like pumps and valves that he used during years of work on his family farm and in a factory. He originally sued 13 manufacturers, but most settled or dropped out before trial. Three defendants that make asbestos-containing equipment -- Durco, Crane Co. and Byron Jackson -- remained to face trial. Lawyers Jessica Dean and Theile McVey argued that the companies should have known about the risks of abestos but failed to warn workers that used their products. Garvin testified by video because he is recovering from double pneumonia and is not expected to survive his cancer for more than another year. Mesothelioma is a particularly deadly form of cancer of the lung's linings. The only known cause is exposure to asbestos. Dean asked the jury to award $1 million to Garvin for every year that he would have lived if he had not gotten cancer. He was expected to live another 10 to 11 years, she told the jury. After four hours of deliberation, the jury came back and awarded Garvin $10 million in actual damages and $1 million to his wife of 50 years, Velda, for loss of consortium. Jurors added punitive damages to that, ordering Durco and Crane Co. to pay $11 million each and Byron Jackson to pay $5 million. An attorney for Crane Co., Terry Budd, called the verdict "flawed" and said the company will "definitely appeal." ASBESTOS UPDATE: Deadly Dust "Buried at Golf Course" ---------------------------------------------------- Tim Barlass, writing for The Sydney Morning Herald, reported that when the new Gibraltar Hotel next to the council golf course in Bowral was completed last May, the opening was attended by Premier Barry O'Farrell, Minister for Small Business Katrina Hodgkinson and local MP Pru Goward. According to the report, developer John Uliana, who now sits as an independent on the Wingecarribee Shire Council, and wife Liz looked on as the Premier said: "If you have an idea and work bloody hard, you can generally achieve your goal, do well for your family and contribute to the community, and ultimately that seems to be what John and Liz have done despite every obstacle thrown at them." But exactly how Cr Uliana, who runs Bowral Country Living Pty Ltd with his wife, achieved those goals has been put under close scrutiny. The report related that complaints from another independent councillor made to the Independent Commission Against Corruption claim the developer, also leasee of the adjacent golf course, buried asbestos on the course before the new hotel was built. In documents seen by The Sun-Herald, councillor Garry Turland writes: "During the course of construction of the hotel adjacent to the course by Councillor Uliana's company a number of older buildings were demolished. This involved the removal and treatment of asbestos. The statements of the former golf course superintendent indicate that the asbestos was buried on the golf course site." Cr Turland said: "The clubhouse was full of asbestos. He dug a hole and buried it." Former course superintendent Glen Wright told The Sun-Herald he knew where the asbestos was and that staff had told him about it. "If it was just fibro you would not bury it," he said. "Someone has gone to a lot of trouble of burying it and putting a lot of shit on top of it." The documents also allege Cr Uliana dumped waste from other building sites on the golf course and that he had breached terms of the golf course lease. They also accuse Wingecarribee Shire Council of handling the issues in private rather than in open council meetings. But Cr Uliana said it was untrue that he had removed asbestos from the clubhouse or that he had buried asbestos on the golf course. He also said only a small amount of work required under the lease had not been completed because of drainage issues to be addressed by the council. He said he had reluctantly taken on the lease of the golf course so that houses wouldn't be built on it. "The original linings of the building are still there, they have not been demolished," he said. Cr Uliana said the allegations were politically inspired to try to remove him from the delicately balanced council. "I welcome any investigation, they will find that what has happened here is political. Evil prospers when good men do nothing." ICAC wrote to Cr Turland earlier this month saying it would conduct an initial assessment but that not all matters it received resulted in an investigation. The Wingecarribee council said a small triangle of bonded asbestos fibrous cement was found near the greenkeeper's shed after it received a complaint. As a precautionary measure, a company had recently been engaged to prepare an asbestos remediation strategy, which had been submitted to the Environment Protection Authority. ASBESTOS UPDATE: Transfer of Former Riverview Property Approved --------------------------------------------------------------- Jo Ann Bobby-Gilbert, writing for The Review, reported that the former Riverview Florist property on Parkway will be transferred from the city to its Community Improvement Corporation as part of a deal approved on Sept. 19. According to the report, the CIC's board of trustees agreed during its meeting to contribute $6,000 toward the estimated $12,000 cost of asbestos removal on the property with the stipulation that the property be transferred to the board. An offshoot of city government, the CIC has the authority to buy and sell property without adhering to the bidding procedures mandated for governing bodies. The board's executive committee met prior to the trustees' meeting and approved the contribution and transfer, but not without some debate. Committee member Don Heldman said he had heard the company which identified the asbestos sites, J&J Asbestos Abatement, isn't authorized to "do this work," complaining also that he has heard other members say that "all our meetings have to be in a hurry because everything is cut and dried and we can't vote 'no' because we're gonna get a black eye." Member Sherrie Curtis pointed out that all information is mailed to members for their review prior to meetings. Trustee Fred Kane also said J&J Asbestos Abatement is only licensed to determine what needs abated but is not certified to do the abatement, and no certification from the Environmental Protection Agency has been obtained. Kane also said he believes the cost will be greater than $12,000 since there are more than 80 acres that "need cleaned up," which could result in other environmental issues. Service-Safety Director Ryan Estell explained that the steps to which Kane and Heldman were referring take place now that J&J Asbestos has identified the areas which need abated, including hiring a contractor to perform the abatement and acquiring EPA permits. He stressed that a Phase I environmental study was completed by a Pittsburgh firm which looked for any underground tanks, oil spills and other issues, with none found. Asbestos was found by J&J Asbestos only in the greenhouses on pipe wraps and window caulking, Estell emphasized. Ultimately, the measure passed unanimously by both the committee and board of trustees. City Council will meet in special session to consider the property transfer to the CIC. A streets/lands and buildings committee will meet at 6:30 that night to review the property transfer which would then have to be forwarded for council's consideration. ASBESTOS UPDATE: Electricians, et al., at Risk for Fibro Exposure ----------------------------------------------------------------- Lawyersandsettlements.com reported that electricians and electrical cable installers may not know it, but they are at risk for being exposed to asbestos through repair, demolition or installation work. This lethal, fibrous material was used in felted asbestos insulation or asbestos tape to insulate wiring. So working on old power lines, old wiring or breaker boxes would put electricians at risk for asbestos exposure. Older arc chutes also contain asbestos. It was used in circuit breakers, for example, before the mid-1980's, when they were made of asbestos-containing plastic molding compound. According to the report, boiler technicians, sadly, are also at risk from materials in the workplace. According to the Environmental Protection Agency, insulation blankets (the outside covering or shell), door gaskets, duct insulation, and tape at duct connections of furnaces and boilers can all contain asbestos. Technicians who worked on repairing boilers and furnaces in the past would have been at risk for asbestos exposure. Asbestos was used between 1930 and 1972 as high-temperature insulation for oil, coal, or wood furnaces, generally found in older homes. Steam and hot water pipes were insulated with asbestos-containing material, particularly at elbows, tees, and valves. Pipes may also be wrapped in an asbestos "blanket", or asbestos paper (which looks very much like corrugated cardboard). Asbestos-containing insulation has also been used on and inside round and rectangular furnace ducts. Sometimes the duct itself may be made of asbestos-containing materials. ASBESTOS UPDATE: Ex-Shipyard Worker Sues Former Employer, Others ---------------------------------------------------------------- Lawyersandsettlements.com reported that George Joseph Van Houten has filed an asbestos lawsuit alleging his former employers failed to take proper safety precautions to reduce or eliminate his risk for asbestos exposure. Van Houten has, as a result of his asbestos exposure, developed malignant asbestos mesothelioma. Van Houten alleges in his lawsuit that he was exposed to injurious levels of asbestos while working at Avondale Shipyards from 1964- 1969. During this period, he alleges, he used and handled and/or was in the vicinity of others using or handling asbestos or asbestos-containing products at these facilities in ship engine rooms and where fibers in the ambient air could be breathed in. He was diagnosed with malignant mesothelioma in March of 2013. One of the defendants, Avondale Inc, is accused of "negligently, recklessly, willfully and/or because of gross and wanton negligence, fault, or strict liability, fail[ing] to properly discharge its duties to the Plaintiff in failing to provide a safe workplace." Specifically, the company allegedly neglected to provide safety instructions for eliminating or reducing risks of exposure to products that contained fibrous, incombustible, chemical-resistant substances, failed to provide adequate measures to control the level of infiltration into the ambient air and to the plaintiff's home, and failure to deliver medical monitoring and air monitoring. Avondale also allegedly failed to inspect products, to test for defects or hazards, to accurately report the results of those tests and medical studies; and further, allegedly failed to design the products without asbestos where alternate and equally suitable products were available, in addition to improperly packaging, transporting, handling, storing, and disposing of the product. Van Houten is seeking an undisclosed amount for all medical costs and expenses, lost earnings, mental suffering, anguish, physical pain and suffering, loss of consortium, loss of quality of life and all other forms of relief deemed appropriate. The defendants in the lawsuit include: Avondale Industries Inc., Air & Liquid Systems Corporation, Armstrong International, Asbestos Corporation, Aurora Pump Company, Inc., Buffalo Forger, Inc., BW/IP, Inc., CBS Corporation, Cleaver, Brooks, Inc., Cooper US, Copes-Vulcan, Inc., Crane Company, Crosby Valve, Inc., CSR, Inc., Eagle, Inc., Eaton Corporation, Inc., The Fairbanks Company, Inc., FMC Corporation, Foster Wheeler Energy Corporation, Goodyear Tire & Rubber Company, Goulds Pumps Inc., Hopeman Brothers Inc. IMP Industries Inc., Ingersoll-Rand Company, International Paper Company, John Crane Inc., Joy Technologies Inc., McCarty Corporation, Mine Safety Appliances Company, The Nash Engineering Company, Owens Illinois Inc. Reilly-Benton Company, Inc., Schneider Electric USA Inc., SpiraxSarco, Inc., Sterling Fluid Systems (USA) LLC., Taylor-Seidenbach Inc., Trane US Inc., Union Carbide Corporation, Uniroyal Inc., Velan Valve Corporation, Warren Pumps LLC, The Wm. Powell Company, American Employers, American Insurance Company, Home Insurance Company, OneBeacon Insurance Company, the Stonewall Insurance Company and executives with Avondale/Huntington Inglass/Northrop Gunman Ship Systems. ASBESTOS UPDATE: Former Shipyard Worker Sues Eagle Inc., Others --------------------------------------------------------------- Lawyersandsettlements.com reported that Mr. Ora Ham, a former shipyard welder who was recently diagnosed with asbestos-related disease, has filed an asbestos suit against Eagle Inc., Reilly- Benton Company Inc., Taylor-Seidenback Inc. and Metropolitan Life Insurance Company in the Orleans Parish Civil District Court. Ham alleges he was exposed to asbestos and asbestos-containing products while working as an insulator and welder from approximately 1963-1979 at several shipyards and drilling companies in Louisiana and Texas. The lawsuit contends that the defendants allowed dangerous asbestos fibers to escape from their custody, control, and guard by designing, evaluating, manufacturing, packaging, furnishing, storing, handling, transporting, installing, distributing, selling and/or supplying asbestos-containing products to Ham's job sites. In his lawsuit, Ham alleges the defendants are strictly liable for manufacturing and selling defective products and for systematic negligence by failing to properly test their products, warn against the dangers inherent in their use, provide proper instructional material and safety devices to reduce the dangers of those products especially when other similar, non-asbestos- containing products would have served as high heat insulation. Ham also claims the defendants "knew that their products would have to be cut, sawed, broken, sprayed, hammered into place and generally handled in such a manner as to created dust which when ingested or inhaled into the body would cause severe and disabling diseases." Ham is seeking an undisclosed amount for physical pain and suffering, mental pain and anguish, loss of enjoyment of life and medical expenses. The companies named in the suit as job sites include: Gulfport Shipyard, Wards Drilling Company, Livingston Shipyard, Texaco, Chevron, Mobil, Motiva, LeBlanc Welding, Lee Towing Company, Action Construction, H. B. Zachary, International Maintenance Company, Inland Marine and Diamond Offshore Drilling. ASBESTOS UPDATE: Fibro Displaces West Anchorage Residents --------------------------------------------------------- Garrett Turner, writing for Channel 2 News, reported that homeowners in West Anchorage are familiar with their noisy neighbor: Ted Stevens Anchorage International Airport. According to the report, since 2001, the Alaska Department of Transportation has made efforts to reduce the impact of aircraft noise with its Residential Sound Insulation Program. In late July, a construction company contracted by the DOT started to sound proof Charlie Volkheimer's house in the Lake Hood area, the report related. The work should have been finished in a couple of weeks, but Volkheimer had concerns after seeing debris in his HVAC (heating, ventilation and air conditioning) system. "We asked them to come out and do asbestos testing in the house because of all of the sheet rock dust and all the messes they left behind," Volkheimer said. Volkheimer's contractor shared with him the original environmental survey of his home, which was done last February. He says it indicated his house was an "asbestos hotspot." Volkheimer says he met with the U.S. Environmental Protection Agency. "We're aware of the situation and we're looking at options to see how we can assist," said the EPA in a released statement. As for the alleged asbestos claim, the DOT says it's investigating the situation. "Right now, the Department of Transportation facilities care deeply about the safety of all Alaska residents and it's in the process of investigating this internally," Jeremy Woodrow, DOT Communication Officer, said. "At this time, it's too early in the process to provide any details but the department will investigate this issue fully so it can provide answers and bring closure to everyone involved." Volkheimer says the EPA sealed off his house and he's now living out of a hotel. He says if test results come back positive for lead and asbestos poisoning, he could be left with nothing. "I want the other people that are involved in this program to know that they did this to us and they might be potentially at risk also," Volkheimer said. "The other homeowners that are involved in this should do their due diligence and make sure their homes are tested." The only certainty to emerge is that Volkheimer's home improvement project meant to keep things quiet has become an issue that has stirred up a lot of noise. ASBESTOS UPDATE: Stainforth Court Complex Needs Fibro Removal ------------------------------------------------------------- Matt Smith, writing for Herald Sun, reported that the budget to rejuvenate Tasmania's most troubled housing complex has blown out from $5 million to $8.5 million. According to the report, Housing Minister Cassy O'Connor announced the additional money on Sept. 21 as 10 of the 84 units to be renovated at the Stainforth Court complex at Cornelian Bay were on show for the first time. Ms O'Connor said the additional money was needed for asbestos removal, landscaping and retro-fitting of the units to make them disability friendly. "We have increased the scope of the project," Ms O'Connor said. "The original tender was for $5 million but we also budgeted for it to be a $7 million project. "But with the need to remove asbestos, the desire to have platinum disability units here and some extra money that we thought would be well spent toward landscaping we have increased the budget from within our existing funds. "To reach platinum level, the units had to achieve all 16 elements of the Liveable Housing Design Guidelines. "There's also been funding made available to upgrade fire safety, install video intercom in all units and much-improved communal facilities including a community room, landscaped grounds and a barbecue area." Ms O'Connor denied there was a budget blow-out. "A 'blow-out' would involve only doing the works we originally planned and completing them over-budget," she said. "Instead, we've actually improved and expanded this re-development -- using extra money from the existing housing budget." Stainforth Court had gained a reputation for violence, drug use and crime. The units were earmarked for the wrecking ball in 2010 when former State Government minister Lin Thorp suggested they could be torn down. Premier Lara Giddings said the apartments had not been renovated since they were built in 1954. "This is critical to modernise them and create a space where people feel respected," Ms Giddings said. ASBESTOS UPDATE: Hazardous Waste Abound in Subic ------------------------------------------------ Jonathan L. Mayuga, writing for Business Mirror, reported that the Subic Bay Metropolitan Authority and the Department of Environment and Natural Resources have so far taken no concrete action to prevent the mishandling and illegal transport and disposal of hazardous waste at the old decommissioned power plant in the former US naval base turned international free port. According to the report, while the DENR's office in Region 3 sent an inspection team to check the premises of the old power plant complex, it was learned that the team only checked for polychlorinated biphenyl substance but not asbestos. Worse, the DENR Region 3 team did not conduct an inspection of the truck of the company contracted to demolish the old power plant that was seized by the Customs Intelligence and Investigation Service on August 5 for alleged nonpayment of proper taxes, sources in Subic said. The company was also allowed to salvage of the scrap metal in the vintage power facility. It will be recalled that the Action for Consumerism and Transparency for Nation Building, said they are concerned that asbestos and other hazardous materials such as PCBs, that are certain to be present in the power plant are not being handled properly and disposed of by Bonapor. Action said the Bureau of Customs (BOC) CIIS on August 5 impounded the truck, for allegedly shipping out of the free port scrap materials from the former Subic Power Plant without paying taxes and other fees. Bonapor is now under investigation by the CIIS-Subic Collection District. Action said the SBMA and the BOC should check if the company has the requisite licenses to handle hazardous and dangerous chemicals, as well as to dispose of such material. Action said the fact that the company was cavalier in its attitude with paying taxes may be an indication of the questionable level of professionalism and standards of the company. The group said the CIIS should also make an effort to check the contents of the truck that was seized on August 5, if these included asbestos. Asbestos is the name given to a group of naturally occurring minerals used in certain products such as building materials and vehicle brakes to resist heat and corrosion. Asbestos includes chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos and actinolite asbestos. The US Department of Labor's Occupational Safety and Health Administration, in an asbestos advisory issued in 2002, said the inhalation of asbestos fibers by workers in factories using the mineral compound can cause serious diseases of the lungs and other organs that may appear years after the exposure has occurred. The US's Center for Public Integrity has lamented that while more than 50 countries have banned asbestos, the US has not phased out the use of the toxic mineral in building materials, insulation, automobile brakes and other products. PCBs, on the other hand, is a group of chemicals that contain 209 individual compounds (known as congeners) with varying harmful effects. PCBs are no longer produced or used in the United States. The major source of exposure to PCBs today is the redistribution of PCBs already present in soil and water. Long-term exposure to some PCB formulations by inhalation in humans results in respiratory tract, gastro-intestinal, liver, skin and eye ailments. Epidemiological studies indicate an association between dietary PCB exposures and developmental effects. ASBESTOS UPDATE: Foundation Launches Drive to Cut Fibro Death Toll ------------------------------------------------------------------ Grant Prior, writing for Construction Enquirer, reported that the British Lung Foundation launched a major asbestos campaign in a bid to cut the current toll of 20 construction workers a week dying from the effects of exposure. According to the report, the Take 5 and Stay Alive campaign is aimed at tradespeople. The foundation said that every week on average 20 tradesmen -- six electricians, four plumbers and eight joiners die in the UK from exposure to asbestos. The material was outlawed in 2000 but thousands of building still contain asbestos. Federation research showed a worrying lack of information and training among small employers and sole traders, with workers not seeing it as a big risk or worrying about losing jobs and money if they raise concerns, and not knowing how to identify asbestos and what to do if they find asbestos. When disturbed and inhaled, asbestos fibres can cause a range of illnesses, including the terminal chest cancer mesothelioma. The tiny invisible particles stick to clothes, meaning that as well as risking their own lives, workers can be unknowingly putting their family members, colleagues and friends at risk. The Take 5 and Stay Alive campaign aims to ensure tradespeople have the knowledge to act safely and responsibly, ensuring they can identify asbestos and determine what type it is, and assess whether they have the training and equipment to deal with it safely. British Lung Foundation Chief Executive Dr Penny Woods said: "Twice as many people die from asbestos-related illnesses than on the roads each year in Britain. "It's the biggest work-related killer, and the numbers of deaths associated with it are rising each year. "Sole traders and people working for small companies are often under particular pressure to take jobs and deliver quickly, and this can sometimes put them at particular risk of asbestos exposure. "But it's not just tradespeople putting their own lives at risk. If asbestos is disturbed the particles can affect others too, and we know several women who have died after years of washing their husbands' contaminated overalls. "Our Take 5 and Stay Alive campaign aims to give tradespeople the tools to act responsibly. We want to ensure they can identify asbestos wherever and in whatever form it might be present, and know how to deal with it safely. "Our message is simple -- taking just five minutes to assess the situation could save your life, and keep your family, friends, clients and business safe from exposure to potentially fatal asbestos dust." ASBESTOS UPDATE: Plant Removal Continued Despite Fibro Risk ----------------------------------------------------------- Philip Poynter Construction Safety reported that Poole Investments plc has been fined GBP60,000 and ordered to pay GBP20,000 in prosecution costs after plant dismantling work exposed workers to asbestos fibres at a disused tile factory in the Poole. According to the report, a series of people and workers were allowed on to the site despite the company being aware of the presence of asbestos materials from a survey it commissioned. Bournemouth Magistrates heard (Sept 17) the company agreed to sell redundant plant at the factory site to a local trader. Between October 2010 and the following April 2011 the trader unwittingly released asbestos dust and fibres whilst demolishing part of a disused pottery kiln to access the redundant plant. Poole Investments had commissioned an asbestos survey but allowed work to take place on site and next to the damaged kiln before the survey was completed. In addition, after the company received the survey report workers were allowed to continue activities at the premises. Poole Investments plc, of Anglo Office Park, White Lion Road, Amersham, Buckinghamshire, was fined GBP60,000 and ordered to pay a further GBP20,000 in costs after pleading guilty to three breaches of the Control of Asbestos Regulations 2006. Speaking after the hearing, HSE Inspector, James Powell said: "Poole Investments plc committed safety failings that led to workers being needlessly exposed to dangerous asbestos dust and fibres. They failed to identify that asbestos containing material was present on the site before the work started, resulting in failure to properly manage the work or provide appropriate protection for workers. Worse still, they allowed this work to continue even after they were in possession of a report showing asbestos was present and advising that the area should be made out of bounds. Asbestos-related diseases kill more people than any other single work-related cause. All types of asbestos can be dangerous if disturbed. The danger arises when asbestos fibres become airborne. They form a very fine dust. Breathing asbestos dust can cause serious damage to the lungs and cause cancer." ASBESTOS UPDATE: South West Rocks Homeowner Counts Clean-up Costs ----------------------------------------------------------------- Todd Connaughton, writing for The Macleay Argus, reported that asbestos contamination of properties in an exclusive South West Rocks St (NSW) has left one homeowner with a big bill for the clean-up and neighbours out of pocket and upset. According to the report, the contamination occurred after a contractor with a high-pressure water cleaner began washing down the asbestos roof of a house in Seaview St. Neighbours quickly became concerned when water mixed with asbestos began to rain down on their properties. One neighbour, who does not wish to be named, was aware the roof was made of asbestos and contacted Kempsey Shire Council to voice his alarm. "I was told by the person I spoke to that the council only had jurisdiction over the work if it was the owner actually doing it," the neighbour said. "If it was a contractor then it was a problem for WorkCover. So I contacted the WorkCover office in Port Macquarie. They were very concerned and sent someone straight up to see what was going on. "The man doing the pressure washing had left by then but WorkCover took control of the situation and ordered a clean-up." WorkCover engaged a professional asbestos decontamination service to undertake the clean-up, which, the agency told South West Rocks News, is almost complete. Meanwhile an investigation into the incident is continuing. "WorkCover directed the property owner to engage an occupational hygienist and licensed asbestos removalist to safely remove asbestos from the property and issue a clearance certificate declaring the site safe," the spokesman said, referring to the decontamination operation. "WorkCover is also providing advice to the owners of neighbouring properties." Meanwhile the owners of one of the adjoining properties, a holiday rental, say they have had to cancel more than $5000 worth of school holiday bookings. Further information on asbestos in homes and how to manage it before undertaking renovations or maintenance can be found at www.asbestosawareness.com.au A Kempsey Shire Council spokesman said the council was dealing with the matter under the Protection of the Environment Operations Act but did not wish to comment further. ASBESTOS UPDATE: Vermiculite Concerns Discussed in Online Video --------------------------------------------------------------- The IAQ Video Network and Cochrane & Associates on Sept. 22 announced the release of another online video to help educate people about issues that may impact their health. The latest educational video discusses vermiculite insulation and potential exposure to asbestos fibers. Vermiculite is a type of mineral that has been a commercial commodity throughout the world for well over 50 years. When heated to a high temperature, flakes of vermiculite expand as much as 8-30 times their original size. The expanded vermiculite is a light-weight, fire-resistant, and odorless material and has been used in numerous products, including insulation for attics and walls. "A mine in Montana was the source for over 70 percent of all vermiculite sold in the United States from 1919 to 1990," reported Paul Cochrane, President of Cochrane and Associates, the company behind the IAQ Video Network and the new public outreach video. "Unfortunately, there was also a deposit of asbestos at that mine, so the vermiculite was contaminated with asbestos. Vermiculite from this mine was used in the majority of vermiculite insulation in the United States. We hope this video helps to shed some light on vermiculite insulation and potential asbestos exposure concerns if the insulation is disturbed." To view this video please visit: http://youtu.be/WDNVhBwKmpc To view over 250 past videos that have been viewed more than 586,000 times about microbial pathogens, environmental, health & safety topics, please visit: http://www.youtube.com/iaqmarketer This educational video was sponsored by a number of organizations and leading industry professionals that help protect the public's health. Sponsors include: EMSL Analytical, LA Testing, Mold Solutions, Clark Seif Clark, MBM Insurance Resource Center, Healthy Indoors magazine and BioCure Environmental to name a few. To learn more, or to inquire about IAQ Video Network sponsorship opportunities and customized videos, please visit http://www.IAQTV.comor http://www.cochraneassoc.com,email info@cochraneassoc.com or call (602)510-3179. About Cochrane & Associates, LLC & the IAQ Video Network Cochrane & Associates is a business development, public relations and marketing consulting firm that specializes in the environmental, HVAC, mold and indoor air quality industries. The company has worked with many of the industries' leading institutions and companies and continues to be an innovator in the industry. They are also the driving force behind the IAQ Video Network. ASBESTOS UPDATE: Council Worker Asked to Cover Up Deadly Dust ------------------------------------------------------------- The Australian Associated Press reported that a former northwestern NSW council worker claims he was asked to cover up dumped asbestos with green waste and garbage. According to the report, Mark Sankey said he worked at landfill sites for Gwydir Shire Council from 2008 until March this year. On numerous occasions he alleges he was asked to cover dumped asbestos with garbage, green waste, push it into walls and sometimes burn it. "When I was first in that job I was exposed to asbestos many, many times," he told AAP. "They would ask me to just push the asbestos under the garbage so people couldn't see it." He said only two landfills in the shire were locked, allowing dumping to occur overnight. It was only after he began receiving training on how asbestos was to be properly disposed of that he began questioning the requests. "When I asked questions they threatened me with my job." In March, Mr Sankey said he was made redundant after being told his skills were no longer required. Gwydir Shire Council was not immediately available to comment on Mr Sankey's claims, which come after the Asbestos Diseases Foundation of Australia (ADFA) accused the council of unsafe work practices and illegal dumping, which is potentially putting the residents at risk. ADFA president Barry Robson said worried Warialda locals had reported council workers cutting asbestos cement pipes in a residential street without safety equipment or warnings. He also said there were reports asbestos was being illegally dumped or "simply being tossed over the fence of local tips". But Gwydir Shire Mayor John Coulton dismissed the reports as "unfair and misleading", saying safety concerns had been fully investigated. "The council is confident that no staff member or member of the public has been endangered during the water pipe replacement program in Warialda," he said in a statement. He also rubbished allegations workers in the small town were told to misclassify asbestos waste to minimise disposal costs. WorkCover NSW and the Environmental Protection Authority (EPA) have both confirmed they were looking into the claims. The EPA said it received a report from Gwydir Shire Council on September 19 saying the council had inadvertently deposited about 10 cubic metres of soil with bonded asbestos pipe on council-owned lands at Warialda. ASBESTOS UPDATE: Slater Junior High to Close for Abatement ---------------------------------------------------------- The Valley Breeze reported that school officials will shut down Slater Junior High School on Sept. 30, and Oct. 1, so workers can address a ceiling containing asbestos, a silicate mineral that can be harmful to human health. According to the report, in an email to Slater staff, Supt. Deborah Cylke said that crews working on demolishing the ceiling in the boys' locker room discovered a concealed ceiling above. The hidden ceiling was tested for asbestos and came back positive. Air quality tests were conducted outside the locker room, as required by the Environmental Protection Agency, and came back negative, according to Cylke. Asbestos is dangerous if disturbed, said Cylke, so abatement practices are strictly regulated. She has been advised that it's safe to do the work with people in the building, but is "aware that what is safe and what is perceived as safe may not be the same," said Cylke. Since the work to take care of asbestos in the locker rooms cannot be done over the weekend, Cylke said she has decided to close school for the first two days of the school week. School will only reopen upon completion of acceptable air quality tests, she said. School officials have advised the Department of Education that NECAP tests have to start as scheduled on Oct. 2. "No one dislikes a three-day weekend; however, I wish it was not because of additional ceiling repair issues," wrote Cylke. "A safe school environment and your safety are my priorities." ASBESTOS UPDATE: Fibro Halts Plans for Carolina Sharpe House ------------------------------------------------------------ Rebecca Perring, writing for St. Albans & Harpenden Review, reported that the long-awaited rebuild to improve a sheltered housing scheme in St Albans has been halted because building contractors have found traces of asbestos. According to the report, demolition of the current Caroline Sharpe House to make way for a brand new elderly residential home has begun. However the find of asbestos behind window frames in the Chiltern Road care home has meant works have stopped. In May 2009, 24 residents in the current Caroline Sharpe house were moved into temporary accommodation and by the end of 2009 the majority had been temporarily relocated to Linley Court, in Valley Road. The new home, which includes a new front entrance, an extra floor of, a roof garden and balcony is due to be completed by North Hertfordshire Homes in July next year. John Foster, Sandridge parish councillor, said: "Three years ago all the residents were decanted and it has been a sorry saga of delays. "My concern and concerns among residents is the impact this halt will have on works. We just hope this won't affect the scheduled hand over. "Residents are really looking forward to seeing their new home and hopefully the contractors can make up for lost time." However Keeley Hale, project development manager at North Hertfordshire Homes, reassured residents "delays would be absorbed." She said: "The asbestos is being professionally removed by HSE after the find of asbestos behind one of the window frames. "We are hopeful that we have enough in the programme to absorb the delay." ASBESTOS UPDATE: Utica Mutual Sues Clearwater in Reinsurance ------------------------------------------------------------ HarrisMartin Publishing reported that in a newly filed action, Utica Mutual Insurance Co. is demanding more than $1 million in reinsurance proceeds from Clearwater Insurance Co. for the settlement of asbestos claims brought against Goulds Pumps Inc. In a Sept. 20 complaint filed in the U.S. District Court for the Northern District of New York, Utica asserts Clearwater is obligated under the reinsurance contracts to "follow the settlements." Between 1978 and 1982, Utica issued four consecutive umbrella liability policies to Goulds Pumps that were in effect from Jan. 1, 1978, to Jan. 1, 1982. ASBESTOS UPDATE: Appeal in Weitz Luxenberg Cases Dismissed ---------------------------------------------------------- The Appellate Division of the Supreme Court of New York dismissed the appeal in the case captioned IN RE: NEW YORK CITY ASBESTOS LITIGATION -- ALL WEITZ & LUXENBERG CASES IN WHICH BLACKMER PUMP COMPANY IS A Defendant, MOTION NO. M-4013 (N.Y. App. Div.), unless perfected for the January 2014 Term; motion otherwise denied. A full-text copy of the Decision dated Sept. 17, 2013, is available at http://is.gd/Am76vlfrom Leagle.com. ASBESTOS UPDATE: Tolling of Time to Perfect Appeal Denied --------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, denied enlargement of the time to perfect appeal in the case captioned IN RE: NEW YORK CITY ASBESTOS LITIGATION: DUMMITT v. A.W. CHESTERTON -- CRANE CO. -- ESTATE OF DUMMITT, MOTION NO. M-3566 (N.Y. App. Div.). A full-text copy of the Decision dated Sept. 17, 2013, is available at http://is.gd/T7CtTrfrom Leagle.com. ASBESTOS UPDATE: Bid for Reargument in NY Suit Denied ----------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, denied reargument or other relief requested in the case captioned IN RE: NEW YORK CITY ASBESTOS LITIGATION -- WEITZ & LUXENBERG, P.C., v. GEORGIA-PACIFIC LLC, MOTION NO. M-3551 (N.Y. App. Div.). A full-text copy of the Decision dated Sept. 17, 2013, is available at http://is.gd/GmaH8lfrom Leagle.com. ASBESTOS UPDATE: Ill. Court Affirms Ruling in "Gillenwater" Suit ---------------------------------------------------------------- Plaintiff Charles Gillenwater, suffers from mesothelioma, which he contracted by inhaling airborne fibers from an asbestos-containing product. He brought a personal-injury action against defendants, Honeywell International, Inc., Owens-Illinois, Inc., and Pneumo Abex, LLC, all manufacturers of asbestos-containing products. He sought compensation from them on the theory that they had been in a civil conspiracy with one another to conceal the respiratory dangers of asbestos. Charles Gillenwater's alternate theory -- alternate to the theory that the three defendants conspired together -- was that Owens-Illinois entered into the same conspiracy with a nonparty, Owens-Corning Fiberglas Corporation, the manufacturer of Kaylo, an asbestos-containing insulation to which he also was exposed during his career as a pipefitter. The other plaintiff, Donita Gillenwater, is Charles Gillenwater's wife. She alleged a loss of consortium as a result of her husband's contracting mesothelioma. The trial court entered summary judgment in the Defendants' favor on Donita Gillenwater's claims of loss of consortium. The case then went to trial on the remaining claims, and the jury returned a verdict in Charles Gillenwater's favor and against the three defendants. The jury awarded him compensatory damages in the amount of $9.6 million and also awarded him punitive damages in the amounts of $20 million against Honeywell, $40 million against Owens-Illinois, and $20 million against Abex. Honeywell, Owens-Illinois, Abex, and Crane filed motions for judgment notwithstanding the verdict, and the trial court granted the motions by Honeywell, Owens-Illinois, and Abex but denied the motion by Crane. The court entered judgment in Charles Gillenwater's favor and against Crane in the amount of $8,425,000. Charles Gillenwater appeals from the trial court's decision to grant the motions by Honeywell, Owens-Illinois, and Abex for judgment notwithstanding the verdict. Donita Gillenwater appeals from the summary judgment in favor of Honeywell, Owens-Illinois, and Abex on her claims of loss of consortium. Looking at all the evidence in the light most favorable to Charles Gillenwater and drawing all reasonable inferences in his favor, the Appellate Court of Illinois, Fourth District, concluded that the evidence so overwhelmingly favors the Defendants that no verdict against them could ever stand. As for Donita Gillenwater's claims of loss of consortium, the Defendants were entitled to summary judgment because they owed her no duty, given that she was not yet married to Charles Gillenwater at the time he was exposed to asbestos-containing products, the Court ruled. Accordingly, the Court affirmed the trial court's judgment. The case is CHARLES GILLENWATER and DONITA GILLENWATER, Plaintiffs-Appellants, v. HONEYWELL INTERNATIONAL, INC.; PNEUMO ABEX, LLC; and OWENS-ILLINOIS, INC., Defendants-Appellees, and JOHN CRANE, INC., Defendant, NO. 4-12-0929 (Ill. App.). A full- text copy of the Decision dated Sept. 18, 2013, is available at http://is.gd/3oepBLfrom Leagle.com. ASBESTOS UPDATE: La. Court Affirmed Judgment in "Watts" Suit ------------------------------------------------------------ Defendant-appellant, Hebert Brothers Engineers, Inc., appeals a trial court's judgment awarding to plaintiffs-appellees, Rosa Lee Watts and her children, the survival action damages of the decedent, Alfred Watts, after his death from lung cancer contracted as a result of his employment with Hebert Brothers on the Dow Chemical Company premises located in Plaquemine, Louisiana. In a decision dated Sept. 16, 2013, the Court of Appeals of Louisiana, First Circuit, amended the judgment to reflect Hebert Brothers' virile portion and, as amended, affirmed the trial court's ruling. The case is ALFRED WATTS AND ROSA LEE WATTS, v. GEORGIA-PACIFIC CORP. (INDIVIDUALLY AND AS SUCCESSOR TO BESTWALL GYPSUM COMPANY); METROPOLITAN LIFE INSURANCE COMPANY; FOSTER WHEELER ENERGY CORPORATION; MINNESOTA MINING AND MANUFACTURING COMPANY (A/K/A "3M"); NORTH AMERICAN REFRACTORIES COMPANY; GENERAL REFRACTORIES COMPANY; HARBISON-WALKER REFRACTORIES COMPANY (FORMERLY A DIVISION OF INDRESCO INC.); UNIROYAL, INC. (SUCCESSOR TO U.S. RUBBER COMPANY); THE McCARTY CORPORATION; RAPID AMERICAN CORPORATION, ET AL, NO. 2012 CA 0620 (La. App.). A full-text copy of the Decision is available at http://is.gd/V6Uwtufrom Leagle.com. Denyse F. Clancy, Esq., and Lindsey Goldstein, Esq., in Baton Rouge, Louisiana, Attorneys for Plaintiffs/Appellees Alfred Watts, Rosa Lee Watts et al. H. Alston Johnson, III, Esq., and Daina Bray, Esq., in Baton Rouge, Louisiana, Attorneys for Defendants/Appellants Hebert Brothers Engineers, Inc. ASBESTOS UPDATE: "Caire" Suit Remanded to State Court ----------------------------------------------------- Plaintiff, Ronald R. Caire, Sr., filed a motion to remand his action to the 34th Judicial District Court for St. Bernard Parish, Louisiana from where it was removed. Defendants, Murphy Oil USA, Inc., David Mendrek, and William Turnage oppose the motion. The Plaintiff filed the suit against Murphy and Defendants Robert Landry, David Mendrek, William Turnage, (collectively called "Employee-Defendants), Eagle, Inc., The McCarty Corporation, Reilly Benton Company, Anco Insulators, Inc., and Taylor- Seidenbach, Inc., (collectively called "Insulator Defendants"), seeking damages for his development of bladder cancer allegedly caused by exposure to toxic and carcinogenic substances while working at the Murphy Oil Refinery in St. Bernard Parish, Louisiana. The Plaintiff brought the suit for negligence and strict liability and claims damages for physical pain and suffering, mental pain and suffering and emotional distress, loss of enjoyment of life, disability, medical expenses, and loss of earnings. The Plaintiff claimed he has developed cancer due to occupational exposure to asbestos is sufficient to establish that the jurisdictional minimum will be exceeded. In their opposition to the Plaintiff's motion to remand, the Defendants argue that the Plaintiff cannot show a causal connection between exposure to asbestos, allegedly contained in the Insulator Defendants' products and the contraction of bladder cancer. Having found that neither the Employee-Defendants, nor the Insulator Defendants are improperly joined, complete diversity is destroyed, thus the matter must be remanded to state court, Judge Helen G. Berrigan of the United States District Court for the Eastern District of Louisiana said in a Sept. 23, 2013, order and reasons, a full-text copy of which is available at http://is.gd/b8Ysbmfrom Leagle.com. The case is RONALD R. CAIRE, SR. v. MURPHY OIL USA, INC., ROBERT LANDRY, DAVID MENDREK, WILLIAM TURNAGE, EAGLE, INC., THE McCARTY CORPORATION f/k/a McCARTY-BRANTON, INC., REILLY BENTON CO., INC., ANCO INSULATORS, INC., AND TAYLOR-SEIDENBACH, INC., SECTION C, CIVIL ACTION NO. 13-4765 (E.D. La.). ASBESTOS UPDATE: Inmate's Civil Rights Action Dismissed ------------------------------------------------------- Plaintiff David Cullivan, an inmate currently incarcerated at Vienna Correctional Center filed a pro se civil rights action pursuant arising from the conditions of his confinement at Vienna. The Plaintiff, among other things, complain of asbestos presence in Vienna. The Plaintiff seeks $70 million in damages and release from prison. In a memorandum and order dated Sept. 9, 2013, Judge G. Patrick Murphy of the U.S. District Court for the Southern District of Illinois dismissed the case with prejudice for failure to state a claim upon which relief may be granted. Defendant Vienna is also dismissed with prejudice from the action. The case is DAVID CULLIVAN, #S-03907, Plaintiff, v. VIENNA CORRECTIONAL CENTER, Defendant, CASE NO. 13-CV-00666-GPM (S.D. Ill.). A full-text copy of Judge Murphy's Decision is available at http://is.gd/8yj08Ifrom Leagle.com. ASBESTOS UPDATE: Kansas Court Denies Inmate's Reconsideration Bid ----------------------------------------------------------------- The U.S. District Court for the District of Kansas granted summary judgment to the defendants in the case captioned BYRON SMITH, Plaintiff, v. E.J. GALLEGOS, et. al., Defendants, CASE NO. 06- 3061-JTM (D. Kan.), on February 7, 2013, finding the Defendants entitled to qualified immunity because they did not violate any clearly established Eighth Amendment right and did not subject Smith to a wanton infliction of unnecessary pain when Smith was minimally exposed to asbestos dust during a work assignment at the U.S. Penitentiary at Leavenworth. Smith filed a motion to reconsider and a motion for hearing on March 7, 2013, claiming that the court misapprehended the facts of the case and the law. Smith claims that the court misapprehended the extent of his exposure, the Defendants' culpability, and the Defendants' knowledge about the location of asbestos. He also claims that the court misapprehended the law because the Defendants were aware of the risk to him and the law clearly establishes an Eighth Amendment right to be free of any levels of friable asbestos. In a memorandum and order dated Sept. 10, 2013, Judge J. Thomas Marten of the United States District Court for the District of Kansas denied the motions, holding that the court did not misapprehend the facts of the case. Further, the court did not err in finding no clearly established constitutional right to be free from such a limited exposure to friable asbestos, Judge Marten said. The court's previous analysis used the incorrect qualified immunity standard, but this does not change the result, Judge Marten added. Applying the proper legal standard, the court finds that Smith cannot show that the defendants were aware of relevant facts from which an inference could be drawn that a substantial risk of serious harm existed, let alone that the defendants actually drew that inference, Judge Marten further held. A full-text copy of Judge Marten's Decision is available at http://is.gd/KBn6U2from Leagle.com. ASBESTOS UPDATE: Illinois Court Junks Inmate's Civil Rights Action ------------------------------------------------------------------ Judge J. Phil Gilbert of the U.S. District Court for the Southern District of Illinois dismissed without prejudice all Federal Tort Claim Act claims and claims of negligence and gross negligence and the complaint filed by Plaintiff Anthony Patrick, an inmate in the custody of the Illinois Department of Corrections and housed at Vienna Correctional Center. The Plaintiff filed the action for deprivation of his constitutional rights and the FTCA. The Plaintiff also alleged that he was being exposed to asbestos during his stay at the correctional. Judge Gilbert also dismissed without prejudice Defendant Randy Davis from the complaint. The case is ANTHONY PATRICK, No. M38082, Plaintiff, v. RANDY DAVIS, Defendant, CASE NO. 13-CV-00844-JPG (S.D. Ill.). A full- text copy of Judge Gilbert's Sept. 11, 2013, memorandum and order is available at http://is.gd/WuLPr1from Leagle.com. ASBESTOS UPDATE: W. Va. Court Affirms Ruling in "Seckman" Suit -------------------------------------------------------------- Petitioner Ronald Seckman appeals the decision of the West Virginia Workers' Compensation Board of Review, in which the Board affirmed an order of the Workers' Compensation Office of Judges. In its Order, the Office of Judges affirmed the claims administrator's decision, which held Mr. Seckman's claim compensable on a non-medical basis, but determined that the claim was not subject to the presumption set out in West Virginia Code Section 23-4-8c(b) (2009), and that Mr. Seckman's date of last exposure was October 30, 1990. Mr. Seckman, in 2007, filed an application for workers' compensation benefits based on being diagnosed with occupational pneumoconiosis by his doctor. Mr. Seckman alleged that he had been exposed to asbestos, smoke from rolling mills, and welding fumes throughout his work at Alcan Rolled Products. In a Sept. 12, 2013, memorandum decision, the Supreme Court of Appeals of West Virginia, affirmed the decision of the Board of Review. The Court agreed with the conclusion of the Board of Review and the findings of the Office of Judges. Although Mr. Seckman presented evidence that he had been exposed to the hazards of occupational pneumoconiosis, his evidence has been successfully contradicted by the sampling and testing of Mr. Merrifield who demonstrated that Mr. Seckman was not exposed to harmful levels of dust and particulate matter after October 30, 1990. The Office of Judges made this finding based on a preponderance of the evidence and did not commit any reversible error, the Court said. Based on this finding, the Office of Judges was correct to hold that Mr. Seckman was not entitled to the presumption that he suffered from occupational pneumoconiosis under West Virginia Code Section 23-4- 8c(b), because the period of January 26, 1981, to October 30, 1990, is an insufficient length of time under the statute, the Court added. The Court found that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. The case is RONALD SECKMAN, Claimant Below, Petitioner v. ALCAN ROLLED PRODUCTS -- RAVENSWOOD, LLC, Employer Below, Respondent, NO. 11-1631 (W. Va.). A full-text copy of the Decision dated Sept. 12, 2013, is available at http://is.gd/4ZzGPNfrom Leagle.com. ASBESTOS UPDATE: Ohio Court Affirms Ruling in "Brown" Suit ---------------------------------------------------------- Plaintiff-appellant, Barron Brown, appeals from the judgment of the Court of Claims of Ohio granting a motion to dismiss filed by defendant-appellee, the Ohio Department of Rehabilitation and Correction. According to the Appellant's complaint, he is currently incarcerated at Chillicothe Correctional Institution where he is serving a mandatory 20-year sentence. The complaint asserts that, arising out of litigation in federal court, he and a class of inmates housed at CCI entered into a settlement agreement with appellee wherein appellee agreed to remediate asbestos in several CCI housing units. In this action, appellant seeks compensation for "Negligent Intentional Infliction of Emotional Distress," due to the alleged exposure of "unreasonable dangerous levels of unabated, exposed, and fiable [sic] asbestos" at CCI, where he has been housed for the previous eight years. According to appellant's complaint, because of such prolonged exposure, he now suffers from "CANCERPHOBIA." The Appellee filed a motion to dismiss, which the trial court granted, after finding that the Appellant's complaint failed to state a claim upon which relief could be granted. In a decision dated Sept. 17, 2013, the Court of Appeals of Ohio, Tenth District, Franklin County, affirmed the judgment of the trial court, agreeing with the trial court that the Appellant's complaint fails to state a claim upon which relief can be granted. The case is Barron Brown, Plaintiff-Appellant, v. Ohio Department of Rehabilitation and Correction, Defendant-Appellee, NO. 12AP-815 (Ohio App.). A full-text copy of the Decision is available at http://is.gd/C7HEzyfrom Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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