/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/131011.mbx C L A S S A C T I O N R E P O R T E R Friday, October 11, 2013, Vol. 15, No. 202 Headlines AB&I FOUNDRY: Accused of Fixing Prices of Cast Iron Soil Pipes ACTION EDUCATION: Appeal From Merrill Suit Ruling Dismissed AGNICO-EAGLE MINES: 2nd Cir. Affirms Dismissal of AP-Fonden Case AIR TRANSPORT: ABX Won Final Approval of Class Suit Settlement BANK OF AMERICA: Klein Moynihan Discusses Class Action Settlement BLACKBERRY LTD: Sued in N.Y. for Allegedly Misleading Investors BRIDGESTONE: "Shop Supplies Fee" Class Action Dismissed CADBURY ADAMS: Dale & Lessman Discusses Class Action Settlement CONSOLIDATED RAIL: Judge Trims Claims in Train Derailment Suit COLORADO: Governor Faces Class Action Over COGCC Statutes CREVE COEUR: Portion of "Ballard" Suit Remanded to Trial Court DEAN FOODS: Antitrust Class Suits Remain Pending in Tennessee DIGITAL GENERATION: Defends "Shaffer" Securities Suit in Texas DIRECTV LLC: Faces TCPA Class Action Over Unsolicited Robocalls DIVERSICARE HEALTHCARE: Awaits Ruling on Bid to Certify Class DIVERSICARE HEALTHCARE: Continues to Defend Arkansas Class Suit DIVERSICARE HEALTHCARE: Defend Covington-Related Class Suit EAGLE MATERIALS: Denies All Allegations in Drywall Suits FORD MOTOR: Pa. Court Refuses to Junk Breach of Warranty Claim GOLDMAN SACHS: Awaits Approval of Fannie Mae Suit Settlement GOLDMAN SACHS: Awaits Ruling in Suit Over Hudson Mezzanine CDOs GOLDMAN SACHS: Awaits Ruling on Bid to Dismiss HAMP-Related Suit GOLDMAN SACHS: Continues to Defend Consolidated CDO-Related Suit GOLDMAN SACHS: Continues to Defend Suit Alleging Discrimination GOLDMAN SACHS: Defends Suit Over RALI Pass-Through Certificates GOLDMAN SACHS: Defends Suits Over Mortgage Certificates vs. Units GOLDMAN SACHS: Faces Antitrust Suits Over Credit Derivatives GOLDMAN SACHS: Faces Suits Over Aluminum Storage Facilities Mgmt. GOLDMAN SACHS: MF Global Securities Litigation vs. GS&Co. Pending GOLDMAN SACHS: Suit Over Force-Placed Hazard Insurance Pending GREGORY TURZA: Klein Moynihan Discusses TCPA Junk Fax Ruling HITACHI AUTOMOTIVE: Faces Class Action Over Alleged Price-Fixing HUDSON CITY BANCORP: Has Yet to File Merger Suits Settlement INTUIT INC: Wins Approval of $6.55-Mil. Accord in TurboTax Suits LOS ANGELES: Judgments in "Owens" and "Pitts" Class Suits Upheld MARICOPA COUNTY, AZ: Court Orders Reforms in Immigration Crusade MICHIGAN COMMERCE: ATMs Not Accessible to the Blind, Suit Says NAT'L FOOTBALL: Thousands of Retired Players Opt Out of Settlement OTTAWA, CANADA: Former SALH Reservist Joins Benefits Class Action QANTAS AIRWAYS: Faces Further Penalty Payment Over Freight Fixing ROEHL TRANSPORT: Student Drivers File Wage Class Action STILLWATER MINING: Awaits Order on Bid to Junk "Jurgelewicz" Suit STILLWATER MINING: "Casey" Suit Dismissed Without Prejudice TOWERS PERRIN: Wins Prelim. Okay of $10MM Shareholder Suit Deal UNITED STATES: Fed. Claims Court Tosses Claims in "Jones" Suit UNLIMITED MOBILE: Conditional Class Cert. Granted in "Will" Suit UNITED STATES: Judge Pares Down Claims in Veterans Class Action WELLS FARGO: Court Narrows Claims in "Davis" Class Action * Orrick Discusses Rail Freight Class Certification Reversal * Employers Must Consider Class Action Waiver in Arbitration Asbestos Litigation ASBESTOS UPDATE: Flintkote Keeps Coverage Disputes in Arbitration ASBESTOS UPDATE: Traces of Fibro Not a Concern for Newcomb Cleanup ASBESTOS UPDATE: Fibro Rumors Fill University of Vermont Campus ASBESTOS UPDATE: Fibro-Related Illnesses Still Killing More People ASBESTOS UPDATE: Fibro Fear Over Barn Fire at Langton Matravers ASBESTOS UPDATE: NYS Citizens to Vote on Mine Access to Adirondack ASBESTOS UPDATE: Widow Files Mass Tort Claims v. 3 Companies ASBESTOS UPDATE: Eternit Insists Products are Fibro-Free ASBESTOS UPDATE: Fibro Commonly Used in Sydney Houses ASBESTOS UPDATE: Center Offers Compensation To-Do List for Victims ASBESTOS UPDATE: Deadly Dust at Work Caused Terminal Cancer ASBESTOS UPDATE: Sutton Council "Negligent" Over Fibro Flats ASBESTOS UPDATE: Man Exposed to Deadly Dust on Steelworks ASBESTOS UPDATE: Thetford Mother's Fear Over Fibro Risk ASBESTOS UPDATE: Lordswood Fibro Transfer Site Plan Turned Down ASBESTOS UPDATE: Trade Breakfast Attracts Hundreds of Workers ASBESTOS UPDATE: Fibro Discovery Delays Victoria Square Upgrade ASBESTOS UPDATE: Edinburg Uni Urged to Axe Fibro Claim Academic ASBESTOS UPDATE: Iowa Demolition Firms Fined for Fibro Violations ASBESTOS UPDATE: U.S. Shutdown Doesn't Stop Cancer Care at NIH ASBESTOS UPDATE: Problems Remain in Handling Fibro in Christchurch ASBESTOS UPDATE: Gagnard Sues Avondale, Northrop Grumman et al. ASBESTOS UPDATE: Bosticks File Suit in St. Clair County ASBESTOS UPDATE: Pa. Supreme Court Reinstates Defense Judgment ASBESTOS UPDATE: Hudson Valley Area Site of Illegal Dumping ASBESTOS UPDATE: Ex-Cop Calls Out Perth & Kinross Council ASBESTOS UPDATE: Firm Allowed to Make Asbestos Roofing Sheets ASBESTOS UPDATE: Commissioners Vote to Demolish 2 Butte Buildings ASBESTOS UPDATE: Fibro Fibers Found in Rock in Proposed Wis. Mine ASBESTOS UPDATE: Victim's Widow Awarded GBP180,000 in Compensation ASBESTOS UPDATE: Man Sentenced in New Jersey Dumping Scheme ASBESTOS UPDATE: Toxic Dust Found in Pre-Purchase Inspections ASBESTOS UPDATE: Deposition of Pathologist Allowed to Move Forward ASBESTOS UPDATE: Firm Fined for Fibro at Ellesmere Port Plant ASBESTOS UPDATE: Ex-Steelworkers Plagued by Fibro-Related Cancer ASBESTOS UPDATE: Ruling in Conley Breach of Contract Suit Affirmed ASBESTOS UPDATE: NY Court Denies Bid to Junk "Juni" Exposure Suit ASBESTOS UPDATE: "McCloskey" Suit v. Goodyear Proceeds to Trial ASBESTOS UPDATE: Nash Eng'g Dropped as Defendant in "Fischer" Suit ASBESTOS UPDATE: Bid to Dismiss "McDonald" PI Suit Denied ASBESTOS UPDATE: Recommendations Issued in "Walkup" Suit ASBESTOS UPDATE: RI Court Directs Further Discovery in "Cary" Suit ASBESTOS UPDATE: Crane Co.'s Bid to Dismiss "Liman" Suit Denied ASBESTOS UPDATE: Time to Perfect Appeal in NY Litig. Enlarged ASBESTOS UPDATE: Calif. Court Affirms Ruling in "Swanson" Suit ASBESTOS UPDATE: Miss. Judge Reprimanded in Misconduct Case ********* AB&I FOUNDRY: Accused of Fixing Prices of Cast Iron Soil Pipes -------------------------------------------------------------- A&S Liquidating Inc., on behalf of itself and all others similarly situated v. AB&I Foundry, Tyler Pipe Company, McWane, Inc., Charlotte Pipe and Foundry Company, and Randolph Holding Company, Case No. 3:13-cv-04568 (N.D. Cal., October 2, 2013) is a proposed class action lawsuit against the Defendants for violations of the federal antitrust laws in the cast iron soil pipe and fittings (collectively, "CISP") market. This case alleges a conspiracy among all Defendants to fix, raise, maintain and stabilize prices for CISP that they sold directly to the Plaintiff and other class members, which began at least as early as January 1, 2006, and continues through the present, A&S asserts. A&S further alleges that Charlotte Pipe's 2010 acquisition and liquidation of Star Pipe Products, Ltd.'s CISP business, which resulted in substantially decreased competition in the market for CISP, was an illegal acquisition, undertaken to facilitate and ensure the success of the alleged price fixing conspiracy. A&S is a Michigan corporation headquartered in Flint, Michigan. A&S purchased CISP through its predecessor, A&S Supply Co., Inc., directly from one or more Defendants during the Class Period. AB&I is a division of McWane, Inc., with its principal place of business located in Oakland, California. AB&I was acquired by McWane, Inc. in late 2006, and since that time AB&I has been a division of and controlled by McWane, Inc. McWane, Inc. is a Delaware corporation headquartered in Birmingham, Alabama. Tyler Pipe is a division of McWane, Inc., headquartered in Tyler, Texas. Charlotte Pipe and Foundry Company is a North Carolina corporation headquartered in Charlotte. Randolph Holding Company, LLC is a wholly-owned subsidiary of Charlotte Pipe and is a Delaware limited liability company headquartered in Charlotte, North Carolina. The Plaintiff is represented by: Solomon B. Cera, Esq. C. Andrew Dirksen, Esq. GOLD BENNETT CERA & SIDENER LLP 595 Market Street, Suite 2300 San Francisco, CA 94105 Telephone: (415) 777-2230 E-mail: scera@gbcslaw.com cdirksen@gbcslaw.com - and - Robert N. Kaplan, Esq. Richard J. Kilsheimer, Esq. Gregory K. Arenson, Esq. Matthew P. McCahill, Esq. KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 E-mail: rkaplan@kaplanfox.com rkilsheimer@kaplanfox.com g.arenson@kaplanfox.com mmccahill@kaplanfox.com - and - Larry S. McDevitt, Esq. David M. Wilkerson, Esq. THE VAN WINKLE LAW FIRM 11 North Market Street Asheville, NC 28801 Telephone: (828) 258-2991 E-mail: lmcdevitt@vwlawfirm.com dwilkerson@vwlawfirm.com - and - Kit A. Pierson, Esq. Meghan Boone, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave., NW, Suite 500, West Tower Washington, DC 20005 Telephone: (202) 408-4600 E-mail: kpierson@cohenmilstein.com mboone@cohenmilstein.com - and - Christopher J. Cormier, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Telephone: (561) 833-6575 E-mail: ccormier@cohenmilstein.com ACTION EDUCATION: Appeal From Merrill Suit Ruling Dismissed ----------------------------------------------------------- The Court of Appeals of California, Second District, Division Two, dismissed an appeal from a trial court ruling entered in the case, CRYSTAL MERRILL et al., Plaintiffs and Appellants, v. ACTION EDUCATIONAL SERVICES, INC., Defendant and Appellant, NO. B240202. Crystal Merrill and Fi Tran filed a putative class action against Action Educational Services, Inc. also known as West Coast University, Inc. for fraud, misrepresentation, and violation of the unfair competition law and other statutes, following their enrollment in the defendant's nursing school program. As part of their enrollment, plaintiffs each signed an enrollment agreement (EA) and one or more retail installment sales contracts (RICs). All of the RICs, and the EA signed by Merrill, contained a provision requiring arbitration of disputes. The EA signed by Tran did not contain an arbitration clause. The Defendant filed a petition to compel arbitration of all of the plaintiffs' claims. The trial court granted the petition to arbitrate plaintiffs' individual claims under the RICs as well as Merrill's individual claims under the EA. The court denied the petition to compel arbitration of Tran's claims under the EA, and stayed those claims, along with plaintiffs' class claims and their claims under the UCL. Defendant appealed from the trial court's order denying the petition to compel arbitration of Tran's claims under the EA. Defendant also appealed from the order staying plaintiffs' class claims. Plaintiffs appealed from the order granting the petition to compel arbitration of their individual claims under the RICs and Merrill's claims under the EA. The Calif. Appeals Court reversed the order denying the petition to compel arbitration of Tran's claims under the EA but dismissed (i) the defendant's appeal of the order staying the class claims and (ii) the plaintiffs' appeal. A copy of the Appeals Court's October 2, 2013 Opinion is available at http://is.gd/WPqUqdfrom Leagle.com. For Plaintiffs and Appellants, Eric Christopher Morris, Esq. -- emorris@lawsclg.com -- Southern California Lawyers Group and: Geralyn L. Skapik, Esq. Skapik Law Group 5861 Pine Ave, Suite A-1 Chino Hills, CA 91709 Tel: 909-398-4404 Fax: 909-398-1883 - and - Richard G. Osborn, Esq. OsbornLaw 8577 Haven Avenue, Suite 110 Rancho Cucamonga, CA 91773 Tel: (909) 237-7083 Fax: (909) 987-2014 Duane Morris LLP, Keith Zakarin -- KZakarin@duanemorris.com -- Edward M. Cramp -- EMCramp@duanemorris.com -- and Lisa K. Widdecke -- lkwiddecke@duanemorris.com -- for Defendant and Appellant. AGNICO-EAGLE MINES: 2nd Cir. Affirms Dismissal of AP-Fonden Case ---------------------------------------------------------------- The United States Court of Appeals for the Second Circuit affirmed a January 14, 2013 district court judgment entered in the case, FORSTA AP-FONDEN, Plaintiff-Appellant, JEROME STONE, Individually and on behalf of all others similarly situated, CHRIS HASTINGS, Individually and on behalf of all others similarly situated, Plaintiffs, v. AGNICO-EAGLE MINES LTD., SEAN BOYD, EBERHARD SCHERKUS, Defendants-Appellees, AMMAR AL-JOUNDI, DAVID GAROFALO, Defendants, NO. 13-0511-CV. Forsta AP-Fonden, the court-appointed Lead Plaintiff in the case, appealed the District Court's January 14, 2013 decision granting the Defendants' motion to dismiss the Plaintiffs' putative class action in its entirety. The Consolidated Securities Class Action Complaint alleges that Agnico-Eagle Mines, Ltd., Sean Boyd, and Eberhard Scherkus violated Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78j(b), and Rule 10b-5 of the Securities and Exchange Commission, 17 C.F.R. Section 240.10b-5, by knowingly or recklessly issuing false and misleading statements which at first concealed and later misleadingly minimized structural geological risks to Agnico's operation of its Goldex Mine. The Complaint also asserts a claim under Section 20(a) of the Exchange Act, 15 U.S.C. Section 78t(a), against Boyd and Scherkus. Having conducted an independent and de novo review of the record, the Second Circuit affirmed the judgment of the District Court substantially for the reasons "articulated in its thorough opinion" of January 14, 2013. "We have examined the remainder of Appellant's arguments and find them to be without merit," the Second Circuit said. A copy of the Appeals Court's October 3, 2013 Summary Order is available at http://is.gd/4bJksvfrom Leagle.com. David L. Wales -- DWales@blbglaw.com -- (Ann M. Lipton, Adam D. Hollander -- adam.hollander@blbglaw.com -- Evan M. Berkow -- evan.berkow@blbglaw.com -- on the brief), Bernstein Litowitz Berger & Grossmann LLP, New York, NY, for Appellant. Irwin H. Warren -- irwin.warren@weil.com -- (Miranda S. Schiller - - miranda.schiller@weil.com -- Evert J. Christensen, Jr. -- evert.christensen@weil.com -- Stacey A. Harkey -- stacey.harkey@weil.com -- on the brief), Weil, Gotshal & Manges LLP, New York, NY, for Appellees. AIR TRANSPORT: ABX Won Final Approval of Class Suit Settlement -------------------------------------------------------------- Air Transport Services Group, Inc.'s subsidiary received in July 2013 final approval of its settlement of a 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. On December 31, 2008, a former ABX Air, Inc. employee filed a complaint against ABX, a total of four current and former executives and managers of ABX, Garcia Labor Company of Ohio, and three former executives of the Garcia Labor companies, in the U.S. District Court for the Southern District of Ohio. The case was filed as a putative class action against the defendants, and asserts violations of the Racketeer Influenced and Corrupt Practices Act (RICO). The complaint, which was later amended to include a second former employee plaintiff, seeks damages in an unspecified amount and alleges that the defendants engaged in a scheme to hire illegal immigrant workers to depress the wages paid to hourly wage employees during the period from December 1999 to January 2005. On December 2, 2011, the plaintiffs agreed to settle this matter in exchange for the payment by ABX to plaintiffs and the putative class members of a monetary amount, which amount management believes to be less than it would have cost to defend the case at trial. The final settlement was approved by the Court on July 9, 2013, and is subject to a 30-day appeal period, after which the funds will be paid over to the class administrator for distribution in accordance with the terms of the settlement agreement. Air Transport Services Group, Inc. -- http://www.atsginc.com/-- is a holding company whose principal subsidiaries include an aircraft leasing company and independently certificated airlines. Air Transport and its subsidiaries provides airline operations, aircraft leases, aircraft maintenance and other support services primarily to the cargo transportation and package delivery industries. The Wilmington, Ohio-based Company offers a range of complementary services to delivery companies, freight forwarders, airlines and government customers. BANK OF AMERICA: Klein Moynihan Discusses Class Action Settlement ----------------------------------------------------------------- Klein Moynihan Turco LLP reports that in what may be the largest payment to settle an action brought pursuant to the Telephone Consumer Protection Act, the Bank of America will be paying over $32 Million in an effort to settle six pending TCPA class action litigation matters. The TCPA class action settlement, which must still be approved by a federal judge, was filed in the United States District Court for the Northern District of California on Friday, September 27, 2013. On September 30, BOA issued a statement denying the allegations of wrongdoing, but assuring the public that "we are pleased to resolve this matter." The BOA litigations are a collective microcosm of a nationwide movement to hold companies liable under the TCPA for using auto-dialers to contact consumers on their cellular telephones without consent. TCPA Allegations Against BOA Although the settlement covers several different lawsuits in different federal courts, the allegations are largely similar. By way of background, on December 6, 2007, the Federal Communications Commission issued a citation to BOA for violations of the TCPA, admonishing that "[i]f, after receipt of this citation, you or your company violate the Communications Act or the Commission's rules in any manner described herein, the Commission may impose monetary forfeitures not to exceed $11,000 for each such violation or each day of a continuing violation." Despite this, the plaintiffs allege, BOA continued placing unauthorized telephone calls to customer's cellular telephones using automated dialer technology. The subject of the calls varied, though by and large they related to residential mortgage loan account and credit card collection calls. With respect to at least one plaintiff, there is an allegation that she never gave BOA her cellular telephone number and, therefore, BOA must have "trapped" the customer's telephone number by making a record of her cellular telephone number on an earlier inbound call to BOA using caller identification technology. The TCPA Class Action Settlement BOA negotiated the TCPA class action settlement terms over many months, including three in-person negotiations and numerous telephonic mediation sessions. Despite the absence of any injunctive provisions in the final settlement agreement, the parties nevertheless have represented to the Court that BOA has developed "significant enhancements to its servicing systems which are designed to prevent the calling of a cell phone unless a loan servicing record is systematically coded to reflect the borrower's prior express consent to call his/her cell phone." Most significantly, however, BOA has agreed to pay this record setting TCPA class action settlement amount. Protect Yourself Against TCPA Class Action Claims The TCPA has become the new favorite statute of class action plaintiff's lawyers across the country. We have been following a number of class action TCPA cases on a nationwide basis. (See DirecTV Named in Multi-Million Dollar Class-Action TCPA Lawsuit, Bank of America Sued in Putative Class Action Lawsuit for Alleged TCPA Violations). This wave of TCPA litigation has resulted in a number of substantial settlement awards. (See Domino's Pizza Pays Almost $10 Million in TCPA Settlement, Papa John's To Pay $16.335 Million To Settle TCPA Class Action). Additionally, new federal regulations concerning the TCPA are scheduled to take effect on October 16, 2013. (See New TCPA Rules Effective October 16, 2013, Will the New TCPA Amendments Apply Only to Cell Phones?) It is becoming increasingly important for businesses to understand the scope of the TCPA and act affirmatively to protect themselves against class action claims and regulatory investigation. BLACKBERRY LTD: Sued in N.Y. for Allegedly Misleading Investors --------------------------------------------------------------- Nick Brown, writing for Reuters, reports that a shareholder of BlackBerry Ltd. sued the company and its executives on Oct. 4, accusing them of inflating the stock price by painting a misleadingly rosy picture of the business prospects of its BlackBerry 10 smartphone line. Waterloo, Ontario-based BlackBerry, formerly Research In Motion Ltd., misled investors last year by saying that the company was "progressing on its financial and operational commitments," and that previews of its BlackBerry 10 platform were well received by developers, according to shareholder Marvin Pearlstein in a lawsuit lodged in Manhattan federal court. Mr. Pearlstein is seeking to represent a class of "thousands" of shareholders who bought stock between September 27, 2012, when the company touted its strong financial position, and September 20 of this year, when it revealed it would have to write down between $930 million and $960 million related to unsold BlackBerry 10 devices, according to the lawsuit. "In reality, the BlackBerry 10 was not well-received by the market, and the company was forced to . . . lay off approximately 4,500 employees, totaling approximately 40 percent of its total workforce," the complaint alleges. In addition to BlackBerry, Chief Executive Thorsten Heins and Chief Financial Officer Brian Bidulka are named as defendants. A spokeswoman for BlackBerry declined to comment. BlackBerry put itself on the block in August after bleeding market share to other smartphone makers over the past few years, namely Apple Inc and Google Inc. It accepted a tentative offer of $4.7 billion from Fairfax Financial Holdings last month. Several sources close to the matter told Reuters the company is in talks with Cisco Systems, Google and SAP about selling all or part of itself. BlackBerry has also asked for preliminary expressions of interest from Intel Corp and Asian companies LG and Samsung by early this week. Cerberus Capital Management was reported to have expressed such interest on Oct. 2. According to the lawsuit, the write-down announced on September 20 sent stocks reeling, with share price dropping 24 percent, from $10.52 on September 19 to $8.01 on September 25. The 35-page complaint asserts two violations of the Securities and Exchange Act of 1934. It is not the first time BlackBerry has been in trouble with investors. A judge threw out a 2011 lawsuit by a proposed class of stockholders who said the company misled them about the prospects of its then-new line of tablet and other products. The plaintiffs in that case have appealed the decision. The latest lawsuit is Pearlstein et al v. BlackBerry Inc et al, U.S. District Court, Southern District of New York, No. 13-7060. BRIDGESTONE: "Shop Supplies Fee" Class Action Dismissed ------------------------------------------------------- Scott D. Kaiser, Esq., at Shook Hardy & Bacon LLP reports that a "shop supplies fee" class action against Bridgestone was dismissed. She needed new tires. So she went to a Bridgestone tire shop. She was charged a "shop supplies fee" of $1.20, which appeared on the itemized initial estimate, as well as the final invoice. A sign posted in the store explained the purpose of this "shop supplies fee": TO OUR CUSTOMERS: A variety of shop supplies are consumed in servicing our customer's vehicles. Parts and labor necessary for servicing customer's vehicles are itemized on estimates and invoices. However, shop supplies (such as protective items for your vehicle, solvents, cleaners, rags, etc.) do not lend themselves to precise itemization. Therefore, on invoices greater than $30, an additional charge of 6% of the total labor amount, not to exceed $25 will be added to your invoice. This charge represents costs and profits. Non-mandated disposal or recycling charges may also represent costs and profits. A lawsuit ensued. Plaintiff sought certification of a class of individuals charged the "shop supplies fee" at defendant's stores in Missouri. She sued under the MMPA and for money had and received, alleging that the "shop supplies fee" is deceptive because its name suggests that the entire fee goes towards supplies used in servicing a consumer's car. The Court granted Defendant's motion for summary judgment in its entirety, concluding as a matter of law that Defendant did not engage in an unlawful practice under the MMPA. The Court found that Defendant's disclosures regarding the reason for and calculation of the fee were "clear, simple, and straightforward." -- i.e. shop supplies do not lend themselves to precise itemization. The Court also rejected Plaintiff's notion that, "to be honest," the name of the fee must reference "profit." The Court stated that "[w]hile the MMPA requires honesty and candor, it does not require every item of merchandise, service, or fee that generates profit for a for-profit business to be titled as such." Toben v. Bridgestone Retail Oper., LLC, 2013 WL 5406463, at *2 (E.D. Mo. Sept. 25, 2013). CADBURY ADAMS: Dale & Lessman Discusses Class Action Settlement --------------------------------------------------------------- Chad Finkelstein, Esq. -- cfinkelstein@dalelessmann.com -- at Dale & Lessmann LLP reports that last month, major chocolate producers settled a class action for $23.2 million. The class action alleged that Cadbury, Mars, Hershey, Nestle and distributor ITWAL had engaged in price-fixing by artificially inflating the cost of chocolate. Settlements with all of the defendants have resolved the litigation, and will enable chocolate purchasers to be compensated for a portion of their spending on chocolate. The settlement funds are currently being held in trust. If you purchased chocolate from October 1, 2005 to September 30, 2007, you may be eligible to claim monetary compensation if you file a claim by December 15, 2013. There are two categories of chocolate purchaser: consumer and commercial purchaser. 1) Consumers Eligibility: A consumer is someone who purchased chocolate not for commercial resale. Examples include purchasing chocolate for personal consumption, or on behalf of sports teams or schools. Consumers must have purchased at least $1,000 in chocolate products from October 1, 2005 to September 30, 2007 to be eligible to claim monetary compensation. Spouses and/or children residing in the same household may combine their purchases to meet this threshold. Compensation: Consumers who are able to prove their purchases will be compensated at a rate of 2.625% of their purchase. Consumers who are not able to prove their purchases may still be compensated at a rate of 1.875% of their purchases, up to a maximum of $50. 2) Commercial Purchasers Eligibility: There are three sub-categories of Commercial Purchaser. Commercial Purchasers may fall under any number of these categories, depending on the purchases made. 2.1) Direct Commercial Purchasers purchased chocolate directly from Cadbury, Mars, Hershey or Nestle for direct commercial resale to Consumers. 2.2) Intermediary Commercial Purchasers purchased chocolate either directly from Cadbury, Mars, Hershey or Nestle or indirectly from an entity other than Cadbury, Mars, Hershey or Nestle for resale to entities other than Consumers (which includes affiliates, licensees and/or franchisees). 2.3) Secondary Commercial Purchasers purchased chocolate from an entity other than Cadbury, Mars, Hershey or Nestle (which includes purchases from affiliates, franchisors or licensors) for direct commercial resale to Consumers. Compensation: All Commercial Purchasers must provide proof of purchase, but may be able to rely on the Defendants' sales records for proof. Direct Commercial Purchasers will be compensated at a rate of 0.875% of their purchases. Intermediary Commercial Purchasers will be compensated at a rate of 0.175% of their purchases. Secondary Commercial Purchasers will be compensated at a rate of 0.7% of their purchases. Indirect Compensation In addition to the direct monetary compensation available to Consumers and Commercial Purchasers, a portion of the settlement has been set aside for distribution to consumer and public interest organizations in Canada. Making a Claim Chocolate purchasers with eligible claims are encouraged to file their claims online at http://www.chocolateclassaction.com Paper claim forms may also be requested by contacting the claims administrator at 1-866-432-5534. CONSOLIDATED RAIL: Judge Trims Claims in Train Derailment Suit -------------------------------------------------------------- Martin Bricketto, Linda Chiem, Kat Greene, Matt Fair and Dan Packel, writing for Law360, report that a New Jersey federal judge trimmed claims on Oct. 4 in a consolidated class action against Consolidated Rail Corp. over a 2012 train derailment and chemical spill in New Jersey, but said a negligence claim could stand because the victims sufficiently alleged a duty of care. U.S. District Judge Robert B. Kugler tossed three plaintiffs' claims, including an allegation that the rail company, Norfolk Southern Railway Co. and CSX Transportation Inc. -- owners of the bridge where the train derailed -- trespassed on their property through the spill. The companies said a trespass claim requires intentional conduct, and the spill's release of vinyl chloride onto the alleged victims' properties wasn't deliberate. Plaintiffs countered that a trespass claim can assert negligence, not intentional conduct, in order to be valid under New Jersey law. Judge Kugler found that it didn't appear that the entry of the chemicals onto plaintiffs' property was deliberate. While some courts have required intentional conduct as to the act causing the trespass but not intent as to the result, "[t]his court would be reluctant to expand trespass liability," the Oct. 4 filing said. After a train passing over the Paulsboro bridge derailed, four tanker cars fell into Mantua Creek -- releasing vinyl chloride vapor into the air and leaking the chemical into the creek, according to court filings. Vinyl chloride is a highly flammable chemical used to manufacture PVC pipes, and exposure to the chemical can cause a burning sensation in the eyes and respiratory discomfort. Defendants have faced a deluge of lawsuits in the wake of the November accident, with many of them consolidated in New Jersey federal court. Plaintiffs accuse the companies of ignoring reports of bridge malfunctions and not taking proper precautions to protect those nearby from hazardous substances. Plaintiffs in the consolidated action include Gloucester County residents who were allegedly evacuated due to the release of chemicals and lost money as a result of the derailment, as well as area businesses that allegedly lost income. The alleged victims said that, in the year leading up to the derailment, the transportation companies received at least 23 so-called trouble tickets that the bridge had malfunctioned. In the month preceding the accident, the companies allegedly received at least nine tickets reporting the bridge wasn't operating correctly. The companies argued the plaintiffs' negligence claim should be dismissed because they didn't plead the existence of a duty of care or a heightened standard of foreseeability. Judge Kugler disagreed, finding that while the consolidated complaint didn't explicitly use the term "duty of care," it contained enough facts related to the alleged breach of duties to state a plausible claim for relief. The judge said he wasn't "willing to parse the language in the complaint to the degree that [the companies] wish" and that a duty of care was implicit in the plaintiffs' allegations. Judge Kugler also shot down the companies' argument that the plaintiffs hadn't alleged facts suggesting their economic suffering was foreseeable. While the companies claimed it was the evacuation and shelter orders that caused plaintiffs' alleged losses, the judge said the defendants hadn't established an intervening event. "Shelter-in-place and evacuation orders leading to individuals missing work and businesses temporarily closing requires no leap in logic," the judge ruled. Plaintiffs would've suffered economic harm due to the spill even if the evacuation and shelter orders hadn't been issued, according to the Oct. 4 opinion. Plaintiffs also included a res ipsa loquitor allegation in their complaint but voluntarily dismissed it after acknowledging the doctrine isn't a stand-alone cause of action. Judge Kugler denied plaintiffs' attempt to include the language in their negligence claim, saying he couldn't amend the pleadings in ruling on the motion. Lastly, the judge dismissed plaintiffs' strict liability claim, saying it was too similar to a claim advanced in another case involving the derailment. Attorneys for both parties didn't immediately respond to requests for comment on Oct. 4. The plaintiffs are represented by Robert J. Campbell of the Law Offices of Robert J. Campbell. The defendants are represented by Brett J. Lean of Burns White LLC. The cases are In re: Paulsboro Derailment Cases, case number 1:13- cv-00784, in the U.S. District Court for the District of New Jersey, Camden Vicinage. COLORADO: Governor Faces Class Action Over COGCC Statutes --------------------------------------------------------- Nannette Hamilton, writing for The Coloradoan, reports that a federal class action suit was filed against Gov. John Hickenlooper. "I recently found myself signing a pending federal class action suit against Gov. John Hickenlooper. I had reached a point in my life when I was no longer beholden to Republicans or Democrats but to what is right," Ms. Hamilton said. The basis of the federal class action lawsuit is that the Colorado Oil & Gas Conservation Commission statutes illegally altered the Colorado Constitution (Article V, Sec. 35, Article XX, Sec. 6) without the consent of the governed, thereby rendering the COGCC authority and governor's enforcement of that authority as unconstitutional statutes. The suit documents the alteration of the state constitution in 1992 with the Lundvall Bros v. Voss - City of Greeley. It is the most cited case regarding the Colorado Oil & Gas Conservation Commission. The suit cites the 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. The state constitution protects the electorate by home rule and consent of the governed. Ms. Hamilton said "I would not mind paying a little more in taxes if it would mean taking on a lawsuit to uphold the state constitution." If you would like to sign the petition, visit http://petitions.moveon.org/sign/the-colorado-oil-gas CREVE COEUR: Portion of "Ballard" Suit Remanded to Trial Court -------------------------------------------------------------- In the case, CHERI BALLARD, et al. Appellants, v. CITY OF CREVE COEUR, and AMERICAN TRAFFIC SOLUTIONS, INC., Respondents, NO. ED98320, Cheri Ballard, Jay Baur, and Stephen and Brenda Arnold appeal from the judgment of the trial court granting a joint motion to dismiss filed by City of Creve Coeur and American Traffic Solutions, Inc. Appellants received violation notices from Creve Coeur alleging that they had violated Creve Coeur's red light camera ordinance and challenged the Ordinance in a six-count, purported class action petition. Appellants sought declaratory judgment regarding the Ordinance's constitutionality and conformity with state law, as well as Creve Coeur's authority to enact the Ordinance. Appellants also claimed the Ordinance violated procedural due process and the privilege against self-incrimination, and they alleged claims of unjust enrichment and civil conspiracy by Creve Coeur and ATS. Creve Coeur and ATS filed a joint motion to dismiss, which was granted by the trial court. "Because the Arnolds and Baur have an adequate remedy at law in their municipal court proceeding, we affirm the trial court's judgment dismissing their claims," ruled Judge Kurt S. Odenwald of the Court of Appeals of Missouri, Eastern District, Division Four. "With regard to Ballard, we reverse the trial court's judgment declaring that the Ordinance was properly enacted in accordance with Creve Coeur's police power for regulating public safety. Ballard pleaded that the Ordinance was enacted in order to generate revenue rather than ensure public safety. Whether the Ordinance is a revenue-generating mechanism advanced under the guise of Creve Coeur's police power is a fact question that is not appropriate for resolution on a motion to dismiss. We remand this portion of the trial court's judgment for proceedings consistent with this opinion," he added. The trial court's judgment in all other respects is affirmed. A copy of the Appeals Court's October 1, 2013 Opinion is available at http://is.gd/XPLYQCfrom Leagle.com. DEAN FOODS: Antitrust Class Suits Remain Pending in Tennessee ------------------------------------------------------------- The two class action lawsuits against Dean Foods Company remain pending in Tennessee, 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. A putative class action antitrust complaint (the "retailer action") was filed on August 9, 2007, in the United States District Court for the Eastern District of Tennessee. The Plaintiffs allege generally that the Company, either acting alone or in conjunction with others in the milk industry who are also defendants in the retailer action, lessened competition in the Southeastern United States for the sale of processed fluid Grade A milk to retail outlets and other customers, and that the defendants' conduct also artificially inflated wholesale prices for direct milk purchasers. The Defendants' motion for summary judgment in the retailer action was granted in part and denied in part in August 2010. The Defendants filed a motion for reconsideration on September 10, 2010, and filed a supplemental motion for summary judgment as to the remaining claims on September 27, 2010. On March 27, 2012, the Court granted summary judgment in favor of defendants as to all remaining counts and entered judgment in favor of all defendants, including the Company. The Plaintiffs filed a notice of appeal on April 25, 2012. On May 30, 2012, the Company participated in a scheduling conference and mediation conducted by the appeals court. The mediation did not result in a settlement agreement. Briefing on the appeal was completed on April 5, 2013, and oral argument occurred on July 25, 2013. On June 29, 2009, another putative class action lawsuit was filed in the Eastern District of Tennessee, Greeneville Division, on behalf of indirect purchasers of processed fluid Grade A milk (the "indirect purchaser action"). The allegations in this complaint are similar to those in the retailer action, but primarily involve state law claims. Because the allegations in the indirect purchaser action substantially overlap with the allegations in the retailer action, the Court granted the parties' joint motion to stay all proceedings in the indirect purchaser action pending the outcome of the summary judgment motions in the retailer action. On August 16, 2012, the indirect purchaser plaintiffs voluntarily dismissed their lawsuit. On January 17, 2013, these same plaintiffs filed a new lawsuit in the Eastern District of Tennessee, Greeneville Division, on behalf of a putative class of indirect purchasers of processed fluid Grade A milk (the "2013 indirect purchaser action"). The allegations are similar to those in the voluntarily dismissed indirect purchaser action, but involve only claims arising under Tennessee law. The Company filed a motion to dismiss on April 30, 2013. On June 14, 2013, the indirect purchaser plaintiffs responded to the Company's motion to dismiss and filed an amended complaint. On July 1, 2013, the Company filed a motion to dismiss the amended complaint. At this time, the Company says it is not possible for the Company to predict the ultimate outcome of the pending matters. Dean Foods Company -- http://www.deanfoods.com/-- operates as a food and beverage company in the United States. The Company operates in three segments: Fresh Dairy Direct, WhiteWave-Alpro, and Morningstar. The Company was formerly known as Suiza Foods Corporation and changed its name to Dean Foods Company in 2001 as a result of merger between the former Dean Foods Company and Suiza Foods Corporation. Dean Foods Company was founded in 1925 and is headquartered in Dallas, Texas. DIGITAL GENERATION: Defends "Shaffer" Securities Suit in Texas -------------------------------------------------------------- Digital Generation, Inc., is defending itself against a securities class action lawsuit initiated by Anastacia Shaffer, 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 May 2, 2013, a purported securities class action complaint was filed in the U.S. District Court for the Northern District of Texas, entitled Anastacia Shaffer v. Digital Generation, Inc., et al., No. 3:13-cv-1684, alleging civil violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 thereunder. The complaint names as defendants the Company and certain of its current and former officers. The purported class period is alleged to be June 20, 2011, through February 19, 2013. While the Company cannot predict the outcome of the case with certainty, it is the Company's present belief these matters are not likely to have a material adverse effect on the Company's annual operating results and the Company intends to defend the lawsuit vigorously. The Company believes the purported claims and its defense costs will qualify for reimbursement under its insurance coverage, which are subject to the applicable deductible and the limits of its policies. Digital Generation, Inc., operates an ad management and distribution platform. The Irving, Texas-based Company helps advertisers engage with consumers across television and online media, while delivering timely and impactful ad campaigns. DIRECTV LLC: Faces TCPA Class Action Over Unsolicited Robocalls --------------------------------------------------------------- Klein Moynihan Turco LLP reports that in the marketing space, the Telephone Consumer Protection Act (TCPA) is dominating the headlines. By various accounts, TCPA lawsuits are up 40% to 60% in 2013, compared to the same period in 2012, and there appears to be no signs of this trend slowing any time soon. DirecTV TCPA Lawsuit On September 5, 2013, a TCPA lawsuit was filed against DirecTV, LLC, alleging that the satellite television provider placed multiple, unsolicited robocalls to consumers' cell phones, offering its satellite television services. In several instances, it is alleged that pre-recorded messages were left on consumers' answering machines. According to the complaint, DirecTV did not obtain express consent, written or otherwise, from any of the consumers contacted. Remember, beginning October 16, 2013, express written consent must be unambiguously obtained from consumers prior to making a marketing robocall. Moreover, it is alleged that consumers contacted DirecTV several times requesting not to be called again and that such requests went unheeded. The class-action TCPA lawsuit is seeking damages of up to $1,500 for every call made to consumers in violation of the TCPA. The plaintiff alleges that the potential class size of consumers affected is at least 100,000 consumers across the country. The next hurdle for the plaintiff is to certify the class of consumers contacted by DirecTV in violation of the TCPA. In light of the potential class size, and the strict compliance provisions of the TCPA, if the plaintiff's class is certified, a settlement appears inevitable. TCPA Penalties What is interesting about this case is that Plaintiff is demanding $1,500 per TCPA violation, which is the maximum amount of statutory damages allowed under the TCPA. As you may recall, the TCPA provides for either actual damages or statutory damages ranging from $500 to $1,500 per unsolicited call and/or message. It appears that the plaintiff is requesting $500 for each negligent violation of the TCPA and also $1,500 for every robocall made after DirecTV was contacted by consumers requesting to be put on the company's do-not-call list. While the amount of statutory damages awarded per violation is left to the judge's discretion, judges have rarely awarded the maximum amount, unless there is clear evidence of willfulness or knowing misconduct on the defendant's part. DIVERSICARE HEALTHCARE: Awaits Ruling on Bid to Certify Class ------------------------------------------------------------- Diversicare Healthcare Services, Inc. is still awaiting a court decision on a motion to certify a nationwide class in the collective action pending in Arkansas, 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 December 2011 and June 2012, two purported collective action complaints were filed in the U.S. District Court for the Middle District of Tennessee and the U.S. District Court for the Western District of Arkansas, respectively, against the Company and certain of its subsidiaries. The complaints allege that the defendants violated the Fair Labor Standards Act (FLSA) and seek unpaid overtime wages. The Middle Tennessee action was resolved by settlement and dismissed in 2012. The Plaintiffs in the Arkansas action have moved for conditional certification of a nationwide class of all of the Company's hourly employees. The Company will defend the lawsuit vigorously. The Company says it cannot currently predict with certainty the ultimate impact of any of the cases pending against it on its financial condition, cash flows or results of operations. The Company's reserve for professional liability expenses does not include any amounts for the collective actions, the purported class action against the Facility or the lawsuit filed against the Company's directors. An unfavorable outcome in any of these lawsuits or any of the Company's professional liability actions, any regulatory action, any investigation or lawsuit alleging violations of fraud and abuse laws or of elderly abuse laws or any state or Federal False Claims Act case could subject the Company to fines, penalties and damages, including exclusion from the Medicare or Medicaid programs, and could have a material adverse impact on the Company's financial condition, cash flows or results of operations. Brentwood, Tennessee-based Diversicare Healthcare Services, Inc., provides long-term care services to nursing center patients in eight states, primarily in the Southeast and Southwest (Alabama, Arkansas, Florida, Kentucky, Ohio, Tennessee, Texas and West Virginia). The Company's centers provide a range of health care services to their patients and residents that include nursing, personal care, and social services. DIVERSICARE HEALTHCARE: Continues to Defend Arkansas Class Suit --------------------------------------------------------------- In January 2009, a purported class action complaint was filed in the Circuit Court of Garland County, Arkansas, against Diversicare Healthcare Services, Inc. and certain of its subsidiaries and Garland Nursing & Rehabilitation Center (the "Facility"). The complaint alleges that the defendants breached their statutory and contractual obligations to the patients of the Facility over the past five years. The lawsuit remains in its early stages and has not yet been certified by the court as a class action. The Company intends to defend the lawsuit vigorously. 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. The Company says it cannot currently predict with certainty the ultimate impact of any of the cases pending against it on its financial condition, cash flows or results of operations. The Company's reserve for professional liability expenses does not include any amounts for the collective actions, the purported class action against the Facility or the lawsuit filed against the Company's directors. An unfavorable outcome in any of these lawsuits or any of the Company's professional liability actions, any regulatory action, any investigation or lawsuit alleging violations of fraud and abuse laws or of elderly abuse laws or any state or Federal False Claims Act case could subject the Company to fines, penalties and damages, including exclusion from the Medicare or Medicaid programs, and could have a material adverse impact on the Company's financial condition, cash flows or results of operations. Brentwood, Tennessee-based Diversicare Healthcare Services, Inc., provides long-term care services to nursing center patients in eight states, primarily in the Southeast and Southwest (Alabama, Arkansas, Florida, Kentucky, Ohio, Tennessee, Texas and West Virginia). The Company's centers provide a range of health care services to their patients and residents that include nursing, personal care, and social services. DIVERSICARE HEALTHCARE: Defend Covington-Related Class Suit ----------------------------------------------------------- Diversicare Healthcare Services, Inc., continues to defend itself against a class action lawsuit arising from certain expressions of interest in a potential strategic transaction from Covington Investments, LLC, 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 May 16, 2012, a purported stockholder class action complaint was filed in the U.S. District Court for the Middle District of Tennessee, against the Company's Board of Directors. This action alleges that the Board of Directors breached its fiduciary duties to stockholders related to its response to certain expressions of interest in a potential strategic transaction from Covington Investments, LLC ("Covington"). The complaint asserts that the Board failed to negotiate or otherwise appropriately consider Covington's proposals. In November 2012, the lawsuit was dismissed without prejudice for lack of subject matter jurisdiction. The action was refiled in the Chancery Court for Williamson County, Tennessee (21st Judicial District), on November 30, 2012. The lawsuit remains in its early stages and has not yet been certified by the court as a class action. The Company intends to defend the matter vigorously. The Company says it cannot currently predict with certainty the ultimate impact of any of the cases pending against it on its financial condition, cash flows or results of operations. The Company's reserve for professional liability expenses does not include any amounts for the collective actions, the purported class action against the Facility or the lawsuit filed against the Company's directors. An unfavorable outcome in any of these lawsuits or any of the Company's professional liability actions, any regulatory action, any investigation or lawsuit alleging violations of fraud and abuse laws or of elderly abuse laws or any state or Federal False Claims Act case could subject the Company to fines, penalties and damages, including exclusion from the Medicare or Medicaid programs, and could have a material adverse impact on the Company's financial condition, cash flows or results of operations. Brentwood, Tennessee-based Diversicare Healthcare Services, Inc., provides long-term care services to nursing center patients in eight states, primarily in the Southeast and Southwest (Alabama, Arkansas, Florida, Kentucky, Ohio, Tennessee, Texas and West Virginia). The Company's centers provide a range of health care services to their patients and residents that include nursing, personal care, and social services. EAGLE MATERIALS: Denies All Allegations in Drywall Suits -------------------------------------------------------- Eagle Materials Inc. disclosed 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 it and its subsidiary answered the consolidated antitrust complaints pending in Pennsylvania, denying all allegations that they conspired to increase the price of drywall. Since late December 2012, several purported class action lawsuits were filed against the Company's subsidiary, American Gypsum Company LLC ("American Gypsum"), alleging that American Gypsum conspired with other wallboard manufacturers to fix the price for drywall sold in the United States in violation of federal antitrust laws and, in some cases related provisions of state law. The complaints allege that the defendant wallboard manufacturers conspired to increase prices through the announcement and implementation of coordinated price increases, output restrictions, and other restraints of trade, including the elimination of individual "job quote" pricing. In addition to American Gypsum, the defendants in these lawsuits include CertainTeed Corp., USG Corporation, New NGC, Inc., Lafarge North America, Georgia-Pacific LLC, Temple Inland Inc. and PABCO Building Products LLC. The plaintiffs in these class action lawsuits bring claims on behalf of purported classes of direct or indirect purchasers of wallboard during various periods from 2008 to present for unspecified monetary damage (including treble damages) and in some cases injunctive relief in various United States district courts, including the Eastern District of Pennsylvania, Western District of North Carolina, North Carolina and the Northern District of Illinois. On April 8, 2013, the Judicial Panel on Multidistrict Litigation transferred and consolidated all related cases to the Eastern District of Pennsylvania for coordinated pretrial proceedings. On June 24, 2013, the direct and indirect purchaser plaintiffs filed consolidated amended class action complaints. The direct purchasers' complaint added the Company as a defendant. On July 29, 2013, the Company and American Gypsum answered the complaints, denying all allegations that they conspired to increase the price of drywall and asserting affirmative defenses to plaintiffs' claims. Limited written discovery has taken place to date. Due to the recent nature of these claims, the Company is unable to assess the likelihood or amount of potential loss relating to the claims, or whether such losses, if any, would have a material impact on the Company's financial position, results of operations or cash flows. American Gypsum denies the allegations in these lawsuits and will vigorously defend itself against these claims. Eagle Materials Inc. is a diversified producer of basic building products used in residential, industrial, commercial and infrastructure construction. The Company was incorporated in Delaware and is headquartered in Dallas, Texas. FORD MOTOR: Pa. Court Refuses to Junk Breach of Warranty Claim -------------------------------------------------------------- Rose Bouboushian at Courthouse News Service reports that Ford Motor Co. won't have to face all the claims filed by a class of consumers who say it sold them cars with engines that suddenly lose power in the midst of driving, a federal judge ruled. While New Jersey resident Jason Schmidt was driving on a highway in 2012, his used 2005 Ford Explorer malfunctioned and completely lost power, he claims. Though the warranty allegedly was still valid -- since the SUV was less than eight years old and had been driven less than 80,000 miles -- Schmidt says a Ford dealership told him no applicable warranty would cover the cost of replacing his engine's powertrain control module. He then lodged a complaint with the National Highway Traffic Safety Administration and later found online that the issue he experienced was "pervasive to the class of vehicles." Schmidt and six others filed a nationwide class action against Ford Motor Co., alleging that it knowingly sold vehicles equipped with defective 5.4 L V8 engines from 2004 to 2008. They say the engines' experience of acceleration hesitation, stalling, loss of revolutions per minute and power, and sudden and intermittent deceleration may stem from their powertrain or transmission control modules, electronic throttle controls, or throttle body assemblies. Plaintiff Lee Pullen, of California, says he was never informed of any warranty for repair costs, so he paid out-of-pocket to replace his used 2005 Expedition's throttle body. Two plaintiffs claim that no defects have manifested in their vehicles, but the defect's latency reduced their cars' value and usefulness and caused the customers to overpay for them. The 17-count amended complaint asserts claims for breach of express and implied warranty, common law fraud/violation of the Unfair Trade Practices and Consumer Protection Law, negligent misrepresentation, unjust enrichment, and quasi-contract recovery under California law, and seeks monetary and injunctive relief. Senior U.S. District Judge Eduardo Robreno of the Eastern District of Pennsylvania granted Ford's motion to dismiss several claims on September 23, 2013. "Plaintiffs, with the exception of Jason Schmidt, whose breach-of- warranty claims defendant does not move to dismiss, have failed to allege that they provided pre-suit notice to defendant of any alleged defect," Robreno wrote. "While plaintiffs do allege that defendant had knowledge of the defects through submitting [technical service bulletins] TSBs and receiving consumer complaints directly through customers including Jason Schmidt and through the [National Highway Traffic Safety Administration] NHTSA, such allegations are insufficient to sustain the claims of other plaintiffs who (1) drove different vehicles with different model years, (2) purchased at different times, and (3) in different states." The plaintiffs' fraud and negligent misrepresentation claims lacked specificity, as "they fail to plead any facts or circumstances that might support this bare allegation of justifiable reliance," Robreno wrote. "No facts are pleaded regarding (1) when, where, and from whom plaintiffs purchased or otherwise acquired their vehicles; (2) what, if any, Ford employees were involved in those transactions; and (3) any particular information on how plaintiffs who did not actually pay for repairs have been harmed by the omissions." The judge tossed certain plaintiffs' unjust enrichment claims, as well. "None of the relevant plaintiffs actually paid for any repairs to their vehicles," Robreno wrote. "Furthermore, these plaintiffs do not even allege that they purchased their vehicles from defendant or one of defendant's dealers. They fail to show any way in which their money transferred from their own pockets to defendant's." Remaining are claims for unjust enrichment under Illinois law; quasi-contract; Schmidt's breach of warranty; and an injunction, which Ford did not move to dismiss, the ruling states. Ford, the nation's second-largest automaker, reported more than $134 billion in revenue in 2012. The Plaintiffs are represented by: Julie Parker Thompson, Esq. Larry E. Coben, Esq. Sol H. Weiss, Esq. ANAPOL SCHWARTZ WEISS COHAN FELDMAN & SMALLEY PC 1710 Spruce St. Philadelphia, PA 19103 Telephone: (215) 790-4554 Facsimile: (215) 875-7701 E-mail: jthompson@anapolschwartz.com lcoben@anapolschwartz.com sweiss@anapolschwartz.com The Defendant is represented by: J. Tracy Walker, IV, Esq. Richard Charles Beaulieu, Esq. MCGUIRE WOODS LLP 901 East Cary St. One James Center Richmond, VA 23219 Telephone: (804) 775-1131 E-mail: twalker@mcguirewoods.com rbeaulieu@mcguirewoods.com - and - Janet L. Conigliaro, Esq. DYKEMA GOSSETT PLLC 2723 South State St., Suite 400 Ann Arbor, MI 48104 Telephone: (734) 214-7637 E-mail: jconigliaro@dykema.com - and - Emily J. Stockwell, Esq. Tiffany M. Alexander, Esq. William J. Conroy, Esq. CAMPBELL CAMPBELL EDWARDS & CONROY 1205 Westlakes Dr. Suite 330 Berwyn, PA 19312 Telephone: (610) 964-1900 E-mail: erogers@campbell-trial-lawyers.com talexander@campbell-trial-lawyers.com wconroy@campbell-trial-lawyers.com The case is Schmidt, et al. v. Ford Motor Company, Case No. 2:12- cv-07222-ER, in the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia). GOLDMAN SACHS: Awaits Approval of Fannie Mae Suit Settlement ------------------------------------------------------------ The Goldman Sachs Group, Inc. is awaiting court approval of a settlement in the litigation related to Fannie Mae, 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. Goldman, Sachs & Co. (GS&Co.) was added as a defendant in an amended complaint filed on August 14, 2006, in a purported class action pending in the U.S. District Court for the District of Columbia. The complaint asserts violations of the federal securities laws generally arising from allegations concerning Fannie Mae's accounting practices in connection with certain Fannie Mae-sponsored REMIC transactions that were allegedly arranged by GS&Co. The complaint does not specify a dollar amount of damages. The other defendants include Fannie Mae, certain of its past and present officers and directors, and accountants. By a decision dated May 8, 2007, the district court granted GS&Co.'s motion to dismiss the claim against it and the remaining parties agreed to a settlement in April 2013, subject to court approval, which would resolve the action in its entirety and would not involve any contribution by GS&Co. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Awaits Ruling in Suit Over Hudson Mezzanine CDOs --------------------------------------------------------------- The Goldman Sachs Group, Inc., is awaiting a court decision on a motion for class certification in the class action lawsuit against its subsidiaries relating to Hudson Mezzanine synthetic collateralized debt obligations, 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 September 30, 2010, a putative class action was filed in the U.S. District Court for the Southern District of New York against Goldman, Sachs & Co. (GS&Co.), The Goldman Sachs Group, Inc. (Group Inc.) and two former GS&Co. employees on behalf of investors in $821 million of notes issued in 2006 and 2007 by two synthetic CDOs (Hudson Mezzanine 2006-1 and 2006-2). The amended complaint asserts federal securities law and common law claims, and seeks unspecified compensatory, punitive and other damages. The defendants' motion to dismiss was granted as to plaintiff's claim of market manipulation and denied as to the remainder of the plaintiff's claims by a decision dated March 21, 2012. On May 21, 2012, the defendants counterclaimed for breach of contract and fraud. On December 17, 2012, the plaintiff moved for class certification. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Awaits Ruling on Bid to Dismiss HAMP-Related Suit ---------------------------------------------------------------- The Goldman Sachs Group, Inc. is awaiting a court decision on its motion to dismiss a class action lawsuit brought by homeowners participating in the federal Home Affordable Modification Program, 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 February 25, 2013, The Goldman Sachs Group, Inc. (Group Inc.) was added as a defendant through an amended complaint in a putative class action, originally filed on April 6, 2012, in the U.S. District Court for the Southern District of New York, against Litton, Ocwen and Ocwen Loan Servicing, LLC (Ocwen Servicing). Litton is a residential mortgage servicing subsidiary sold by the Company to Ocwen Financial Corporation in the third quarter of 2011. The amended complaint generally alleges that Litton and Ocwen Servicing systematically breached agreements and violated various federal and state consumer protection laws by failing to modify the mortgage loans of homeowners participating in the federal Home Affordable Modification Program, and names Group Inc. based on its prior ownership of Litton. The plaintiffs seek unspecified compensatory, statutory and punitive damages as well as declaratory and injunctive relief. On April 29, 2013, Group Inc. moved to dismiss. The Company has also received, and continues to receive, requests for information and/or subpoenas from federal, state and local regulators and law enforcement authorities, relating to the mortgage-related securitization process, subprime mortgages, collateralized debt obligations (CDOs), synthetic mortgage-related products, particular transactions involving these products, and servicing and foreclosure activities, and is cooperating with these regulators and other authorities, including in some cases agreeing to the tolling of the relevant statute of limitations. The Company expects to be the subject of additional putative shareholder derivative actions, purported class actions, rescission and "put back" claims and other litigation, additional investor and shareholder demands, and additional regulatory and other investigations and actions with respect to mortgage-related offerings, loan sales, CDOs, and servicing and foreclosure activities. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Continues to Defend Consolidated CDO-Related Suit ---------------------------------------------------------------- The Goldman Sachs Group, Inc., continues to defend itself against a consolidated class action lawsuit challenging the adequacy of its public disclosure of its activities in the collateralized debt obligation market, 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. Beginning April 26, 2010, a number of purported securities law class actions were filed in the U.S. District Court for the Southern District of New York challenging the adequacy of The Goldman Sachs Group, Inc.'s (Group Inc.'s) public disclosure of, among other things, the firm's activities in the collateralized debt obligation (CDO) market, the firm's conflict of interest management, and the SEC investigation that led to Goldman, Sachs & Co. (GS&Co.). entering into a consent agreement with the SEC, settling all claims made against GS&Co. by the SEC in connection with the ABACUS 2007-AC1 CDO offering (ABACUS 2007-AC1 transaction), pursuant to which GS&Co. paid $550 million of disgorgement and civil penalties. The consolidated amended complaint filed on July 25, 2011, which name as defendants Group Inc. and certain officers and employees of Group Inc. and its affiliates, generally alleges violations of Sections 10(b) and 20(a) of the Exchange Act and seeks unspecified damages. On June 21, 2012, the district court dismissed the claims based on Group Inc.'s not disclosing that it had received a "Wells" notice from the staff of the SEC related to the ABACUS 2007-AC1 transaction, but permitted the plaintiffs' other claims to proceed. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Continues to Defend Suit Alleging Discrimination --------------------------------------------------------------- The Goldman Sachs Group, Inc. continues to defend itself and a subsidiary against a class action lawsuit alleging they systematically discriminated against female employees, 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 September 15, 2010, a putative class action was filed in the U.S. District for the Southern District of New York by three female former employees alleging that The Goldman Sachs Group, Inc. (Group Inc.) and Goldman, Sachs & Co. (GS&Co.) have systematically discriminated against female employees in respect of compensation, promotion, assignments, mentoring and performance evaluations. The complaint alleges a class consisting of all female employees employed at specified levels by Group Inc. and GS&Co. since July 2002, and asserts claims under federal and New York City discrimination laws. The complaint seeks class action status, injunctive relief and unspecified amounts of compensatory, punitive and other damages. On July 17, 2012, the district court issued a decision granting in part Group Inc.'s and GS&Co.'s motion to strike certain of plaintiffs' class allegations on the ground that plaintiffs lacked standing to pursue certain equitable remedies and denying Group Inc.'s and GS&Co.'s motion to strike plaintiffs' class allegations in their entirety as premature. On March 21, 2013, the U.S. Court of Appeals for the Second Circuit held that arbitration should be compelled with one of the named plaintiffs, who as a managing director was a party to an arbitration agreement with the Company. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Defends Suit Over RALI Pass-Through Certificates --------------------------------------------------------------- The Goldman Sachs Group, Inc. continues to defend its subsidiary against a class action lawsuit over RALI Pass-Through Certificates, 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. Goldman, Sachs & Co. (GS&Co.) is among numerous underwriters named as defendants in a putative securities class action initially filed in September 2008 in New York Supreme Court, and subsequently removed to the U.S. District Court for the Southern District of New York. As to the underwriters, the plaintiffs allege that the offering documents in connection with various offerings of mortgage-backed pass-through certificates violated the disclosure requirements of the federal securities laws. In addition to the underwriters, the defendants include Residential Capital, LLC (ResCap), Residential Accredit Loans, Inc. (RALI), Residential Funding Corporation (RFC), Residential Funding Securities Corporation (RFSC), and certain of their officers and directors. On March 31, 2010, the defendants' motion to dismiss was granted in part and denied in part by the district court, resulting in dismissal on the basis of standing of all claims relating to offerings in which no plaintiff purchased securities. In June and July 2010, the lead plaintiff and five additional investors moved to intervene in order to assert claims based on additional offerings (including two underwritten by GS&Co.). On April 28, 2011, the court granted defendants' motion to dismiss as to certain of these claims (including those relating to one offering underwritten by GS&Co. based on a release in an unrelated settlement), but otherwise permitted the intervenor case to proceed. The district court has certified a class in connection with the pre-intervention offerings which includes only initial purchasers who bought the securities directly from the underwriters or their agents no later than ten trading days after the offering date (rather than just on the offering date). On March 26, 2013, the U.S. Court of Appeals for the Second Circuit denied the defendants' petition seeking leave to appeal the district court's class certification orders. On April 30, 2013, the district court granted, in part, plaintiffs' request to reinstate a number of the claims, including claims related to seven offerings underwritten by GS&Co., that were previously dismissed on March 31, 2010. On May 10, 2013, the plaintiffs filed an amended complaint incorporating both the reinstated and intervenor claims. GS&Co. underwrote approximately $5.51 billion principal amount of securities to all purchasers in the offerings for which claims have not been dismissed or which have been reinstated. On May 14, 2012, ResCap, RALI and RFC filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York and the action has been stayed with respect to them, RFSC and certain of their officers and directors. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Defends Suits Over Mortgage Certificates vs. Units ----------------------------------------------------------------- The Goldman Sachs Group, Inc. continues to defend its subsidiaries against two class action lawsuits brought on behalf of purchasers of various mortgage pass-through certificates and asset-backed certificates, 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. Goldman, Sachs & Co. (GS&Co.), Goldman Sachs Mortgage Company (GSMC) and GS Mortgage Securities Corp. (GSMSC) and three current or former Goldman Sachs employees are defendants in a putative class action commenced on December 11, 2008, in the U.S. District Court for the Southern District of New York brought on behalf of purchasers of various mortgage pass-through certificates and asset-backed certificates issued by various securitization trusts established by the firm and underwritten by GS&Co. in 2007. The complaint generally alleges that the registration statement and prospectus supplements for the certificates violated the federal securities laws, and seeks unspecified compensatory damages and rescission or rescissionary damages. By a decision dated September 6, 2012, the U.S. Court of Appeals for the Second Circuit affirmed the district court's dismissal of plaintiff's claims with respect to 10 of the 17 offerings included in plaintiff's original complaint but vacated the dismissal and remanded the case to the district court with instructions to reinstate the plaintiff's claims with respect to the other seven offerings. On March 18, 2013, the U.S. Supreme Court denied the defendants' petition for certiorari from the Second Circuit decision. On October 31, 2012, the plaintiff served a fourth amended complaint relating to those seven offerings, plus seven additional offerings. On June 3, 2010, another investor (who had unsuccessfully sought to intervene in the action) filed a separate putative class action asserting substantively similar allegations relating to one of the offerings included in the initial plaintiff's complaint. The district court twice granted the defendants' motions to dismiss this separate action, both times with leave to replead. That separate plaintiff has filed an amended complaint and has moved to further amend this complaint to add claims with respect to two additional offerings included in the initial plaintiff's complaint; defendants have moved to dismiss and opposed the amendment. The securitization trusts issued, and GS&Co. underwrote, approximately $11 billion principal amount of certificates to all purchasers in the fourteen offerings at issue in the complaints. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Faces Antitrust Suits Over Credit Derivatives ------------------------------------------------------------ The Goldman Sachs Group, Inc., is facing antitrust class action lawsuits relating to credit derivatives, 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. Goldman, Sachs & Co. (GS&Co.) and The Goldman Sachs Group, Inc. (Group Inc.) are among the numerous defendants in putative antitrust class actions relating to credit derivatives, filed beginning in May 2013 in the U.S. District Courts for the Northern District of Illinois and Southern District of New York. The complaints generally allege that defendants violated federal antitrust laws by conspiring to forestall the development of alternatives to over-the-counter trading of credit derivatives and maintain inflated bid-ask spreads for credit derivatives trading. The complaints seek declaratory and injunctive relief as well as treble damages in an unspecified amount. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Faces Suits Over Aluminum Storage Facilities Mgmt. ----------------------------------------------------------------- The Goldman Sachs Group, Inc., and two of its subsidiaries are facing class action lawsuits in connection with the management of aluminum storage facilities, 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. The Goldman Sachs Group, Inc. (Group Inc.) and its subsidiaries, GS Power Holdings LLC and Metro International Trade Services LLC, are among the defendants in a number of putative class actions filed beginning on August 1, 2013, in various federal district courts. The complaints generally allege violation of federal antitrust laws and other federal and state laws in connection with the management of aluminum storage facilities. The complaints seek declaratory, injunctive and other equitable relief as well as unspecified monetary damages, including treble damages. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: MF Global Securities Litigation vs. GS&Co. Pending ----------------------------------------------------------------- The MF Global Securities Litigation involving a subsidiary of The Goldman Sachs Group, 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. Goldman, Sachs & Co. (GS&Co.) is among numerous underwriters named as defendants in class action complaints filed in the U.S. District Court for the Southern District of New York commencing November 18, 2011. These complaints generally allege that the offering materials for two offerings of MF Global Holdings Ltd. convertible notes (aggregating approximately $575 million in principal amount) in February 2011 and July 2011, among other things, failed to describe adequately the nature, scope and risks of MF Global's exposure to European sovereign debt, in violation of the disclosure requirements of the federal securities laws. On October 19, 2012, the defendants filed motions to dismiss the amended complaint. Numerous parties, including GS&Co., have commenced a mediation relating to various MF Global-related proceedings. GS&Co. underwrote an aggregate principal amount of approximately $214 million of the notes. On October 31, 2011, MF Global Holdings Ltd. filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court in Manhattan, New York. GS&Co. has also received inquiries from various governmental and regulatory bodies and self-regulatory organizations concerning certain transactions with MF Global prior to its bankruptcy filing. Goldman Sachs is cooperating with all such inquiries. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GOLDMAN SACHS: Suit Over Force-Placed Hazard Insurance Pending -------------------------------------------------------------- The class action lawsuit relating to "force-placed" hazard insurance arranged by The Goldman Sachs Group, Inc.'s former subsidiary 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. The Goldman Sachs Group, Inc. (Group Inc.), Litton and Ocwen Financial Corporation are defendants in a putative class action filed on January 23, 2013, in the U.S. District Court for the Southern District of New York generally challenging the procurement manner and scope of "force-placed" hazard insurance arranged by Litton when homeowners failed to arrange for insurance as required by their mortgages. Litton is a residential mortgage servicing subsidiary sold by the Company to Ocwen in the third quarter of 2011. The complaint asserts claims for breach of contract, breach of fiduciary duty, misappropriation, conversion, unjust enrichment and violation of Florida unfair practices law, and seeks unspecified compensatory and punitive damages as well as declaratory and injunctive relief. The Goldman Sachs Group, Inc., -- http://www.gs.com/-- is a bank holding company and a financial holding company regulated by the Board of Governors of the Federal Reserve System. New York-based Goldman Sachs is also a global investment banking, securities and investment management firm that provides a wide range of financial services to a substantial and diversified client base that includes corporations, financial institutions, governments and high-net-worth individuals. GREGORY TURZA: Klein Moynihan Discusses TCPA Junk Fax Ruling ------------------------------------------------------------ Klein Moynihan Turco LLP reports that the United States Court of Appeals for the Seventh Circuit affirmed that commercial messages sent via facsimile by a marketing firm on behalf of an attorney to more than two hundred certified public accountants violated the Telephone Consumer Protection Act because they did not inform the recipients how to stop receiving future messages. Background of TCPA Fax Case Attorney Gregory Turza hired a marketing firm, Top of Mind, to send "Daily Plan-It" faxes once every other week to CPAs. The faxes contained mundane business advice, along with Mr. Turza's name, business address, logo and a description of his business services. Although the faxes were sent in Mr. Turza's name, Mr. Turza did not author or edit them. In fact, he never even reviewed them. The faxes were comprised of 75% business advice and 25% marketing material describing the commercial availability of Mr. Turza's legal services. In 2008, a CPA firm that received thirty-two faxes from Mr. Turza filed a putative class action against him in the Northern District of Illinois. The District Court held that Mr. Turza was liable for violating the TCPA because each fax failed to contain opt-out information to allow the recipient to stop receiving future faxes from Mr. Turza. The District Court entered a verdict against Mr. Turza in the amount of $4,215,000.00, which included a payment to the class representative plaintiff, a payment to each class member, an award of plaintiff's attorneys' fees, and directed that any residual funds be paid to a specific charity. On appeal, the Seventh Circuit affirmed the District Court's decision on the merits (Mr. Turza's liability under the TCPA), but vacated the remedial order because, among other reasons, it was unclear how each class member would be paid (through a third-party administrator, etc.) and, if the attorney had sufficient funds to pay such a large judgment, whether the charity selected by the judge was the appropriate recipient of any possible remainder. Why the Attorney Was Found to Have Violated the TCPA The District Court held, and the Seventh Circuit affirmed on appeal, that regardless of whether the faxes were sent to recipients who had consented to receive them or otherwise had an established business relationship with Mr. Turza, each fax violated the TCPA because it did not contain information which would allow the recipient to opt-out from receiving commercial faxes in the future. Mr. Turza argued that the TCPA did not apply because the faxes did not contain advertisements. Further, he argued, even if they did contain ads, such ads were merely incidental to the business advice given in the faxes. The court was not persuaded by Mr. Turza's arguments, finding that, from a basic review of the faxes at issue, it was obvious that the purpose of the faxes was promotional and served to market Mr. Turza's services. The Seventh Circuit separately noted that the marketing firm, Top of Mind, had hired a third party, MessageVision, to send the actual faxes. The court further noted that Mr. Turza did not argue that Top of Mind (or any other "person") was responsible for sending the faxes at issue in the class action lawsuit. Even if he had, however, Mr. Turza still would be held accountable under the TCPA. HITACHI AUTOMOTIVE: Faces Class Action Over Alleged Price-Fixing ---------------------------------------------------------------- Jonathan Randles and Gavin Broady, writing for Law360, report that a putative class of disgruntled consumers sued Hitachi Automotive Systems Ltd. in Michigan on Oct. 3 over its alleged role in an international price-fixing conspiracy, just one week after the company agreed to shell out $195 million in a U.S. government suit over related allegations. Ifeoma Adams and more than 40 other co-plaintiffs said the Japanese-based company colluded with manufacturers and suppliers to artificially manipulate the stateside price of an automotive part designed to control the timing of engine valves. Late last month, Hitachi joined eight other Japanese auto parts makers in paying $740 million in total fines in the largest antitrust investigation ever pursued by the U.S. Department of Justice. The DOJ accused the companies of inflating the overall cost of cars sold in the U.S. via a conspiracy to hike up the prices of a host of parts, including windshield wipers, air conditioning systems, power steering assemblies and the valve timing control devices at issue in the instant suit. "The Department of Justice's Antitrust Division, which has been investigating anti-competitive conduct in the automotive parts industry for some time, has concluded that there is 'no doubt' that consumers were hurt financially," The Oct. 3 complaint said. "This is an antitrust injury of the type that the antitrust laws were meant to punish and prevent." The plaintiffs are suing under the Sherman Antitrust Act as well as state antitrust, unfair competition and consumer protection laws, and seek to represent a class of consumer who bought or leased a vehicle containing a Hitachi-made valve timing control device since 2000. Plaintiffs in the suit all purport to have purchased the valve timing control devices indirectly, as such devices tend to be purchased directly by auto manufacturers, such as Ford Motor Co., Toyota Motor Corp. and General Motors LLC, and installed into new cars, according to the complaint. The complaint noted the fact that the market for such devices has a high barrier to entry and demand for them is inelastic makes the alleged conspiracy more plausible. A massive investigation into the purported cartel is underway around the globe, with officials from the Japan Fair Trade Commission, the European Commission and the DOJ scrutinizing the array of subindustries that make up the overall automotive industry, according to the complaint. The U.S. front in that investigation has already yielded more than $1.6 billion in criminal fines, eclipsing the DOJ antitrust division's total take in fines for all cases it handled in 2012, the plaintiffs said. On Sept. 26, Hitachi copped to a one-count criminal information in that investigation over price inflation alleged to have occurred between January 2000 and at least February 2010, according to the complaint. That case asserted that Hitachi took part in meetings in the U.S. and elsewhere to discuss and agree upon bids and price quotations to be submitted to auto manufacturers, using code names and meeting at remote locations to keep their conduct secret, according to the complaint. Representatives for the parties were not immediately available for comment on Oct. 4. The plaintiffs are represented by the Miller Law Firm PC, Robins Kaplan Miller & Ciresi LLP, Susman Godfrey LLP and Cotchett Pitre & McCarthy LLP. Counsel information for the defendants was not immediately available on Oct. 4. The case is Adams v. Hitachi Automotive Systems Ltd., case No. 2:13-cv-14226 in the U.S. District Court for the Eastern District of Michigan. HUDSON CITY BANCORP: Has Yet to File Merger Suits Settlement ------------------------------------------------------------ Hudson City Bancorp, Inc. has yet to file for court approval its settlement of 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 August 27, 2012, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with M&T Bank Corporation ("M&T") and Wilmington Trust Corporation ("WTC"). The Merger Agreement provides that, upon the terms and subject to the conditions set forth therein, Hudson City will merge with and into WTC, with WTC continuing as the surviving entity. Since the announcement of the Merger, eighteen putative class action complaints have been filed in the Court of Chancery, Delaware against Hudson City Bancorp, its directors, M&T, and WTC challenging the Merger. Six putative class actions challenging the Merger have also been filed in the Superior Court for Bergen County, Chancery Division, of New Jersey (the "New Jersey Court"). The lawsuits generally allege, among other things, that the Hudson City Bancorp directors breached their fiduciary duties to Hudson City Bancorp's public shareholders by approving the Merger at an unfair price, that the Merger was the product of a flawed sales process, and that Hudson City Bancorp and M&T filed a misleading and incomplete Form S-4 with the SEC in connection with the proposed transaction. All 24 lawsuits seek, among other things, to enjoin completion of the Merger and an award of costs and attorneys' fees. Certain of the actions also seek an accounting of damages sustained as a result of the alleged breaches of fiduciary duty and punitive damages. On April 12, 2013, the defendants entered into a memorandum of understanding (the "MOU") with the plaintiffs regarding the settlement of the actions (collectively, the "Actions"). Under the terms of the MOU, Hudson City Bancorp, M&T, the other named defendants, and all the plaintiffs have reached an agreement in principle to settle the Actions and release the defendants from all claims relating to the Merger, subject to approval of the New Jersey Court. Pursuant to the MOU, Hudson City Bancorp and M&T agreed to make available additional information to Hudson City Bancorp shareholders. The additional information was contained in a Supplement to the Joint Proxy Statement filed with the SEC as an exhibit to a Current Report on Form 8-K dated April 12, 2013. In addition, under the terms of the MOU, plaintiffs' counsel also has reserved the right to seek an award of attorneys' fees and expenses. If the New Jersey Court approves the settlement contemplated by the MOU, the Actions will be dismissed with prejudice. The settlement will not affect the Merger consideration to be paid to Hudson City Bancorp's shareholders in connection with the proposed Merger. In the event the New Jersey Court approves an award of attorneys' fees and expenses in connection with the settlement, such fees and expenses shall be paid by Hudson City, its successor in interest, or its insurers. Hudson City Bancorp, M&T, and the other defendants deny all of the allegations in the Actions and believe the disclosures in the Joint Proxy Statement are adequate under the law. Nevertheless, Hudson City Bancorp, M&T, and the other defendants have agreed to settle the Actions in order to avoid the costs, disruption, and distraction of further litigation. Hudson City Bancorp, Inc. is a Delaware corporation headquartered in Paramus, New Jersey. The Company is the savings and loan holding company for Hudson City Savings Bank and its subsidiaries. Hudson City Savings is a federally chartered stock savings bank. INTUIT INC: Wins Approval of $6.55-Mil. Accord in TurboTax Suits ---------------------------------------------------------------- William Dotinga, writing for Courthouse News Service, reports that a federal judge approved a $6.55 million settlement of two class actions that claim Intuit's free edition of TurboTax included usurious "quadruple-digit interest rates." Lead plaintiffs Tasha and Fredierick Smith, of Arkansas, filed their complaint against Intuit last year claiming that the software maker violates the Truth in Lending Act (TILA) and California business and usury laws. The couple said they used TurboTax in 2009, 2010 and 2011, and deferred paying the $86.90 fee to use the software each time, choosing instead to have the amount deducted from their tax refund. But Intuit charged them another $29.95 for this, a "refund processing option" (RPO) more than 34 percent of the original fee, the Smiths claimed. The couple said they received their federal refund in two weeks. "Plaintiffs paid $29.95 for an approximate 14-day loan of $86.90," their complaint stated. "The APR, properly calculated in accordance with TILA, was an exorbitant quadruple-digit interest rate. Such interest rates also violated California's usury laws." The couple argued that Intuit's fee should be considered a refund anticipation loan and therefore subject to interest rate and finance charge disclosure rules. But U.S. District Judge Edward Davila disagreed and dismissed the action, writing that the RPO did not qualify as a loan because customers never received any money from Intuit. After allowing the Smiths to amend their complaint twice, Davila ordered the parties into mediation. Earlier this year, both sides announced they had reached a preliminary $6.55 million agreement. Davila signed off on the settlement Tuesday, October 1, 2013, which covers all users of TurboTax's refund processing service between 2008 and May 28, 2013. The agreement incorporates a second class action against Intuit that is currently pending in state court. Additionally, the judge awarded a total of $1,686,301 in attorney fees and costs to the firms Carney Bates & Pulliam, Golomb & Honik, Ku & Mussman, and Milstein Adelman, who represented the classes in the action. The Plaintiffs are represented by: Joseph Henry Bates, III, Esq. Susan R. Kaufman, Esq. CARNEY WILLIAMS BATES PULLIAM AND BOWMAN, PLLC 11311 Arcade Drive, Suite 200 Little Rock, AR 72212 Telephone: (501) 312-8500 Facsimile: (501) 312-8505 E-mail: hbates@carneywilliams.com - and - Richard Moss Golomb, Esq. Ruben Honik, Esq. Kenneth Jay Grunfeld, Esq. GOLOMB HONIK 1515 Market Street, Suite 1100 Philadelphia, PA 19102 Telephone: (215) 985-9177 Facsimile: (215) 469-4169 E-mail: rgolomb@golombhonik.com kgrunfeld@golombhonik.com - and - Brian T. Ku, Esq. Isaac Miller, Esq. M. Ryan Casey, Esq. KU & MUSSMAN, P.A. 12550 Biscayne Boulevard, Suite 406 Miami, Florida 33181 Telephone: (305) 891-1322 Facsimile: (305) 891-4512 E-mail: brian@kumussman.com louis@kumussman.com ryan@kumussman.com - and - Gillian Leigh Wade, Esq. MILSTEIN ADELMAN, LLP 2800 Donald Douglas Loop North Santa Monica, CA 90405 Telephone: (310) 396-9600 E-mail: gwade@milsteinadelman.com The Defendant is represented by: Austin Van Schwing Joseph Richard Rose GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105-2933 Telephone: (415) 393-8210 Facsimile: (415) 374-8458 E-mail: aschwing@gibsondunn.com jrose@gibsondunn.com - and - Sarah Brown Hadjimarkos GIBSON DUNN AND CRUTCHER LLP 1881 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 849-5395 Facsimile: (650) 849-5095 E-mail: shadjimarkos@gibsondunn.com The case is Smith, et al. v. Intuit, Inc., Case No. 5:12-cv-00222- EJD, in the U.S. District Court for the Northern District of California (San Jose). LOS ANGELES: Judgments in "Owens" and "Pitts" Class Suits Upheld ---------------------------------------------------------------- The Court of Appeals of California, Second District, Division Three, affirmed judgments entered in two separate superior court class actions against defendant and respondent County of Los Angeles (County); the first by plaintiff and appellant Larry Pitts and the second by plaintiffs and appellants Patrick Owens and Patricia Munoz. Pitts appeals an order denying his motion to enforce a settlement and Owens and Munoz appeal a judgment. The appellants challenge the legality of Los Angeles County's user utility tax (UUT) enacted pursuant to a measure approved by the voters on November 4, 2008. The appellants contended the UUT is unlawful because it violated the voters' due process and free speech rights and because the tax was imposed in violation of Proposition 218 and the Elections Code. The Calif. Appeals Court rejected all of the appellants' arguments on the merits and affirmed the judgment dated May 12, 2012, in the Owens class action and the order dated April 26, 2012, in the Oronoz/Pitts class action. The Calif. Appeals Court concluded that Pitts is judicially estopped and barred by the terms of a settlement agreement he executed from pursuing his challenge to the UUT. Respondent County of Los Angeles is awarded costs on appeal in both appeals. The cases are: PATRICK OWENS et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Respondent, NO. B242291. LARRY PITTS, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent, NO. B242393. A copy of the Appeals Court's October 2, 2013 Opinion is available at http://is.gd/Ib4jMy from Leagle.com. Law Offices of Steven F. Carvel and Steven F. Carvel -- steven@carvellaw.com -- for Plaintiffs and Appellants Patrick Owens and Patricia Munoz. Huskinson, Brown & Heidenreich, Paul E. Heidenreich -- pheidenreich_huskinsonbrown@att.net -- and David W.T. Brown for Plaintiff and Appellant Larry Pitts. Jones Day, Elwood Lui -- elui@jonesday.com -- Brian D. Hershman -- bhershman@jonesday.com -- and Erica L. Reilley -- elreilley@jonesday.com -- for Defendant and Respondent. MARICOPA COUNTY, AZ: Court Orders Reforms in Immigration Crusade ---------------------------------------------------------------- Tim Hull at Courthouse News Service reports that federal judges in Arizona recently handed down two rulings meant to rein in Sheriff Joe Arpaio's highly publicized efforts to fight illegal immigration in the state's most populous county. U.S District Judge G. Murray Snow on Wednesday, October 2, 2013, ordered a long list of reforms with which Arpaio and the Maricopa County Sheriff's Office (MCSO) must comply, including the appointment of a federal monitor, enhanced data collection, record keeping and training, and a video recorder in every patrol vehicle to record every traffic stop. The ruling comes in the wake of Snow's findings in May that the department violated the civil rights of Latino plaintiffs by racially profiling them and subjecting them to traffic stops and arrests without probable cause. That decision resolved a Phoenix trial last summer in which the American Civil Liberties Union, the ACLU of Arizona, the Mexican American Legal Defense and Educational Fund, lead plaintiff Manuel de Jesus Ortega Melendres and others was pitted against the MCSO. In a separate ruling last week, U.S. District Judge Robert Broomfield enjoined Arizona's so-called Maricopa Migrant Conspiracy Policy, which allegedly inspired Arpaio to create the Human Smuggling Unit of the MCSO and to make immigration enforcement one the department's top priorities. Passed by the Arizona Legislature in 2005, the human smuggling law (Ariz. Rev. Stat. Section 13-2319) allowed for the arrest and prosecution of immigrants for "conspiring to transport themselves within Maricopa County." Broomfield agreed with plaintiffs We Are America/Somos America Coalition of Arizona in its proposed class action against the Maricopa County Board of Supervisors that the statute was preempted by federal law. Since the law went into effect, the MCSO has arrested some 1,800 "non-smugglers" and has prosecuted 1,357, according to the ruling. Broomfield also certified a class of "all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute, or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. Section 13- 2319." In addition to mandating the creation of a Community Advisory Board and the appointment of a community liaison officer to work with a full-time, on-site federal monitor, Snow's ruling prohibits deputies from "detaining any individual based on actual or suspected 'unlawful presence,' without something more." It also bars them from "initiating a pretextual vehicle stop where an officer has reasonable suspicion or probable cause to believe a traffic or equipment violation has been or is being committed in order to determine whether the driver or passengers are unlawfully present." "MCSO shall deliver police services consistent with the Constitution and laws of the United States and State of Arizona, MCSO policy, and this order, and with current professional standards," Snow wrote. "In conducting its activities, MCSO shall ensure that members of the public receive equal protection of the law, without discriminating based on actual or perceived race or ethnicity, and in a manner that promotes public confidence." Arpaio hinted Tuesday, October 1, 2013, that he would appeal Snow's ruling. "I have received a copy of the court order and I am in the process of discussing it with our attorneys," he said in statement. "We are identifying areas that are ripe for appeal. To be clear, the appointed monitor will have no veto authority over my duties or operations. As the constitutionally elected Sheriff of Maricopa County, I serve the people and I will continue to perform my duties and enforce all laws." Dan Pachoda, legal director for the ACLU of Arizona, said in a statement that the requirements, which must remain in place for at least three years, show "Judge Snow recognized that Sheriff Arpaio's years of discriminatory practices and unconstitutional policies required major change-including appointment of a federal monitor, data collection and video recording for every vehicle stop." The Plaintiffs are represented by: James Duff Lyall, Esq. ACLU - PHOENIX, AZ 3707 N. 7th St., Suite 235 Phoenix, AZ 85014 Telephone: (602) 650-1854 Facsimile: (602) 650-1376 E-mail: jlyall@acluaz.org - and - Kelly Joyce Flood, Esq. Daniel Joseph Pochoda, Esq. ACLU - PHOENIX, AZ P.O. 17148 Phoenix, AZ 85011 Telephone: (602) 650-1854 Facsimile: (602) 650-1376 E-mail: kflood@acluaz.org dpochoda@acluaz.org - and - Andre Segura, Esq. ACLU - NEW YORK, NY 125 Broad St., 18th Fl. New York, NY 10004 Telephone: (212) 549-2676 E-mail: asegura@aclu.org - and - Cecillia D. Wang, Esq. ACLU - SAN FRANCISCO, CA IMMIGRANTS RIGHTS PROJECT 39 Drumm St. San Francisco, CA 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 E-mail: cwang@aclu.org - and - Nancy Anne Ramirez, Esq. MALDEF - LOS ANGELES, CA 634 S Spring St., 11th Fl. Los Angeles, CA 90014 Telephone: (213) 629-2512 Facsimile: (213) 629-0266 E-mail: nramirez@maldef.org - and - Anne Lai, Esq. ANNE LAI, ATTORNEY AT LAW 401 E Peltrason Dr., Suite 3500 Irvine, CA 92697 Telephone: (949) 824-9894 Facsimile: (949) 824-0066 E-mail: alai@law.uci.edu - and - David Hults, Esq. Tammy Albarran, Esq. COVINGTON & BURLING LLP - SAN FRANCISCO, CA 1 Front St. San Francisco, CA 94111 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 E-mail: dhults@cov.com talbarran@cov.com - and - Lesli Rawles Gallagher, Esq. COVINGTON & BURLING LLP 9191 Towne Centre Dr., 6th Fl. San Diego, CA 92122 Telephone: (858) 678-1807 Facsimile: (858) 678-1600 E-mail: lgallagher@cov.com - and - Stanley Young, Esq. COVINGTON & BURLING LLP 333 Twin Dolphin Dr., Suite 700 Redwood Shores, CA 94065 Telephone: (650) 632-4704 Facsimile: (650) 632-4804 E-mail: syoung@cov.com The Defendants are represented by: Charitie L. Hartsig, Esq. John Michael Fry, Esq. Michael D. Moberly, Esq. Thomas George Stack, Esq. RYLEY CARLOCK & APPLEWHITE PA 1 N Central Ave., Suite 1200 Phoenix, AZ 85004-4417 Telephone: (602) 440-4898 Facsimile: (602) 257-9582 E-mail: chartsig@rcalaw.com jfry@rcalaw.com mmoberly@rcalaw.com tstack@rcalaw.com - and - David A. Selden, Esq. Julie A. Pace, Esq. THE CAVANAGH LAW FIRM PA The Viad Tower 1850 N Central Ave., Suite 2400 Phoenix, AZ 85004 Telephone: (602) 322-4009 Facsimile: (602) 322-4101 E-mail: dselden@cavanaghlaw.com jpace@cavanaghlaw.com - and - Ann Thompson Uglietta, Esq. Thomas P. Liddy, Esq. MARICOPA COUNTY ATTORNEYS OFFICE-CIVIL SERVICES DIV. 222 N Central Ave., Suite 1100 Phoenix, AZ 85004 Telephone: (602) 506-8581 E-mail: uglietta@mcao.maricopa.gov liddyt@mcao.maricopa.gov - and - James Lawrence Williams, Esq. SCHMITT SCHNECK SMYTH & HERROD PC 1221 E Osborn Rd., Suite 105 Phoenix, AZ 85014 Telephone: (602) 277-7000 E-mail: james@azbarristers.com - and - Alec R. Hillbo, Esq. Leigh Eric Dowell, Esq. OGLETREE DEAKINS NASH SMOAK & STEWART PC 2415 E Camelback Rd., Suite 800 Phoenix, AZ 85016 Telephone: (602) 778-3700 Facsimile: (602) 778-3750 E-mail: alec.hillbo@ogletreedeakins.com eric.dowell@ogletreedeakins.com - and - Kerry Scott Martin, Esq. OGLETREE DEAKINS NASH SMOAK & STEWART PC - TUCSON, AZ 3430 E Sunrise Dr., Suite 220 Tucson, AZ 85718 Telephone: (602) 778-3715 Facsimile: (602) 778-3750 E-mail: kerry.martin@ogletreedeakins.com The case is Melendres, et al. v. Arpaio, et al., Case No. 2:07-cv- 02513-GMS, in the U.S. District Court for the District of Arizona (Phoenix Division). MICHIGAN COMMERCE: ATMs Not Accessible to the Blind, Suit Says -------------------------------------------------------------- Courthouse News Service reports that ATMs at Michigan Commerce Bank are not accessible to the blind, a class claims in Michigan Federal Court. The Plaintiff is represented by: Daniel O. Myers, Esq. THE LAW OFFICES OF DANIEL O. MYERS 100 Park St. Traverse City, MI 49684 Telephone: (231) 929-0500 E-mail: dmyers@domlawoffice.com The case is Besser v. Michigan Commerce Bank, Case No. 1:13-cv- 01088-PLM, in the U.S. District Court for the Western District of Michigan. NAT'L FOOTBALL: Thousands of Retired Players Opt Out of Settlement ------------------------------------------------------------------ Amy Forliti, writing for The Associated Press, reports that thousands of retired NFL players have opted out of a $50 million class-action settlement in a case that accused the league of using their names and images without their consent. But in papers filed on Oct. 4, players' attorney Dan Gustafson said the settlement should be approved because it is "fair, reasonable, adequate and in the best interests of the Class." Mr. Gustafson wrote that more than 25,000 players -- or more than 90 percent of the settlement class -- chose to participate. Meanwhile, 2,140 players -- less than 8 percent -- asked to be excluded. Eighteen players filed timely objections, and can argue against the settlement at a final approval hearing later this month. A 19th player filed an objection after the deadline. Some say the settlement should be rejected because it doesn't make direct payments to class members, and that it unfairly gives varying benefits to different players. The federal class-action lawsuit was filed in 2009 in Minneapolis by Hall of Famer Elvin Bethea and five other retired players. They accused the NFL of blatantly exploiting retired players' identities in films, highlight reels and memorabilia to market the league's "glory days." The settlement, reached in April, calls for the NFL to pay $42 million over eight years toward a trust to help retired players with issues such as medical expenses, housing and career transition. It also establishes a licensing agency for retirees to ensure compensation for the use of their identities. A hearing to approve the settlement is scheduled for Oct. 17. Those who chose to be excluded can pursue their own cases against the NFL in the future. But U.S. District Judge Paul Magnuson has issued an injunction barring similar lawsuits from going forward while this case is pending. OTTAWA, CANADA: Former SALH Reservist Joins Benefits Class Action ----------------------------------------------------------------- Alex McCuaig, writing for Medicine Hat News, reports that a group of ex-soldiers including former South Alberta Light Horse reservist Cpl. Bradley Quast is taking Ottawa to court, alleging that the federal government's current compensation for veterans violates the Charter of Rights and Freedoms. The government's Veterans Charter eliminates the lifetime disability pension for disabled soldiers and replaces it with lump-sum payments. However, the Conservative government is appealing the B.C. court ruling this week that would allow injured soldiers from the Afghanistan conflict to launch a class-action lawsuit opposing the Veterans Charter's provisions. In the case of Quast injured in a Dec. 2009 IED explosion that killed a Calgary Herald journalist, federal government civilian and four soldiers that payment amounts to C$102,000, according to court documents. And that amount came following two appeals of the original C$55,000 settlement. According to court documents, in addition to life-altering injuries to his right foot and leg, the former city resident also suffers post-traumatic stress from his Afghanistan tour. Veterans say the new disability payments are paltry compared to awards given to those who fought in previous wars, and don't keep up with worker's compensation claims or even civil settlements in personal injury cases. "The legislation confers benefits on the plaintiffs; it deprives them of nothing," according to court documents filed by the federal lawyers in response to the claim. Don Sorochan, the lawyer for the soldiers, said he had hoped the government would allow the case to proceed and be decided on its own merits. The fight over whether the soldiers have the right to sue is little more than a stalling tactic, Mr. Sorochan said one that could find its way to the Supreme Court of Canada and delay the case for years. "The motivation here is money, saving money on the backs and blood of veterans that served Canada," Mr. Sorochan said from Vancouver. Federal lawyers intend to argue that allowing the lawsuit to proceed would undermine the authority of Parliament. The case put forward by the soldiers hinges on the fact that ever since the First World War, successive federal governments have recognized the sacrifice of wounded soldiers as an extraordinary service that places a special obligation on the Crown. But the Harper government's legal team notes the promises of past governments are not and should not be binding on present and future governments. "While this may sound reasonable, their argument could have a far broader impact than perhaps intended by the plaintiffs," said a government statement released on Oct. 2 by Veterans Affairs. "If accepted, this principle could undermine democratic accountability as parliamentarians of the future could be prevented from changing important legislation, including the sort of changes that some veterans would like to see to the new veterans charter." During the first round of court action, federal lawyers tried to argue that the government had no special obligation to veterans. But B.C. Justice Gordon Weatherill dismissed the federal government's application, saying the case "is about promises the Canadian government made to men and women injured in service to their country and whether it is obliged to fulfill those promises." The decision to appeal came on the same day as Veterans Affairs Minister Julian Fantino met with veterans advocacy groups at the Canadian War Museum in Ottawa, trying to sell them on the merits of an upcoming parliamentary review of the charter. A House of Commons committee will examine whether recent changes to the charter are having the desired effect. The country's veterans ombudsman released a report on Oct. 1 that said, among other things, that the system will penalize hundreds and perhaps thousands of wounded soldiers who don't have pensions when they turn 65. QANTAS AIRWAYS: Faces Further Penalty Payment Over Freight Fixing ----------------------------------------------------------------- Ben Sandilands, writing for Crikey, reports that when Qantas conspired with a range of other airlines to rob its freight customers through illegal cartel like behavior involving price fixing between 2000 and 2007 it clearly didn't expect to be faced with the risk of damages and compensation payments in 2013 and perhaps beyond. But that's part of the painful lesson in crime and punishment being delivered to the Australian carrier, and others, as a class action looms in the Federal Court from 27 October, in a trial that has been set down for 26 weeks. A detailed summary of the pending class action and the events that preceded it is published on law firm Maurice Blackburn's site. This is part of a notice the Federal Court of Australia required to be published for the information of persons possibly affected by the class action for damages against Qantas and others being brought by the law firm. The Federal Court of Australia has ordered that this notice be published for the information of persons who might have claims affected by this class action. If you were resident in Australia as at January 11, 2007; and in the period January 1, 2000 to January 11, 2007, paid identified amounts totaling more than AUD$20,000 for the carriage of goods to or from Australia, including in each instance a component by air and have not opted out, you are a group member in this class action. The allegations in the class action relate to an alleged cartel to fix the price of international air freight services, and specifically the level of fuel and security surcharges imposed. Proceedings have been brought against Qantas Airways Limited, Lufthansa Cargo Aktiengesellschaft, Singapore Airlines Ltd, Singapore Airlines Cargo Pte Ltd., Cathay Pacific Airways Limited, Air New Zealand Ltd., Air New Zealand (Australia) Pty Ltd. and British Airways Plc. Some respondents have also joined other airlines (cross-respondents). To date the Respondents have denied the allegations, and are defending the class action. The cross-respondents are expected to do the same. The proceeding claims that the cartel caused the prices of international airfreight services supplied by carriers including the Respondents to be higher than they would otherwise have been. The Applicants are claiming damages, declarations, injunctions and other orders on behalf of themselves and on behalf of the group members. You can only claim damages if you sustained loss or damage by reason of the alleged conduct which is the subject of these proceedings and have not released such a claim. By way of further historical detail, a Qantas executive involved in the illegal conduct in which the airline engaged, Bruce McCaffrey, was jailed for six months in the US in 2009, after the airline's more senior management traded an indemnity from prison terms as part of a negotiated cash settlement with US authorities of their liability and that of Qantas for its actions in America. One of the few stories that made it into print in this country about McCaffrey's being sacrificed by Qantas in this manner can be read here. No on-the-record accounts have been discovered of any detailed contrition by Qantas for its robbing its freight customers at home or abroad over a seven year period, nor indeed of its casting Mr. McCaffrey adrift to do time in an American prison. ROEHL TRANSPORT: Student Drivers File Wage Class Action ------------------------------------------------------- Kevin Murphy, writing for News-Herald Media, reports that a $5 million lawsuit was filed on Oct.2 against Roehl Transport alleging its driver-training program violated state and federal law the past three years by not paying student drivers a minimum wage. The suit seeks class-action status for what it contends are the "thousands" of Roehl student drivers who underwent the company's training program during the past three years. According to the complaint filed in federal court, Marshfield- based Roehl requires new drivers to undergo a multiweek, over-the- road training program in which they transport cargo with an experienced company driver. Student drivers are paid a flat $300 a week regardless of the number of hours they worked. The trainer typically was paid per mile, not a flat salary. Student drivers were told to report their time as "on duty" or "off duty," designations the Department of Transportation uses to regulate the number of hours a trucker can drive and then must rest. John Morales III of Monticello, Ind., the lead plaintiff in the suit, enrolled in the program in April. He regularly logged nine or 10 on-duty hours a day, and up to 70 on-duty hours per week. At $300 per week, Mr. Morales was paid far below the $7.25 federal minimum wage. The suit doesn't allege any violations of DOT regulations for driver's hours. Mr. Morales was told that meals, coffee breaks and routine stops are to be logged as off-duty time. Driving, fueling and performing maintenance was to be logged as on-duty time. Federal and state wage law requires employees to be given regular paid regular breaks of up to 20 minutes if they are not meal breaks. Failure to pay Mr. Morales minimum wage for short breaks also violated federal wage law, according to the suit. Some rest time occurring on multiday assignments also needs to be compensated at minimum-wage levels as student drivers remain responsible for the truck and cargo and must remain near it, the complaint said. Roehl knew how much on- and off-duty time each student driver was not getting paid for since operations were reported through a Qualcomm system in each truck, according to the suit. Mr. Morales is driving for another trucking company, said his attorney Justin Swidler, of Cherry Hill, N.J. "Student drivers spend a lot of time working that they're not properly compensated for," Mr. Swidler said. A call to Greg Koepel, Roehl's vice president of Workforce Development and Administration, wasn't returned before deadline. The suit seeks a court order: * Prohibiting Roehl from continuing to maintain the training program that violates wage laws; * Compensation to student drivers for the pay and benefits they should have received; * Reasonable legal costs and fees. STILLWATER MINING: Awaits Order on Bid to Junk "Jurgelewicz" Suit ----------------------------------------------------------------- Stillwater Mining Company is awaiting a court decision on its motion to dismiss the class action lawsuit styled Jurgelewicz v. McAllister, et al., 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 April 4, 2013, a putative derivative and class action complaint was filed by a purported shareholder in the United States District Court for the District of Montana, Billings Division, captioned Jurgelewicz v. McAllister, et al., Case 1:13-cv-00047-RFC. Francis R. McAllister is the Company's former Chief Executive Officer. The complaint names the board of directors as defendants and the Company as nominal defendant. The complaint asserts derivative claims for breach of fiduciary duty, waste and unjust enrichment against certain members of the Board, alleging that those defendants violated the Company's 2004 Equity Incentive Plan, which plaintiff alleges limits awards to 250,000 shares per year to any individual, by awarding Mr. McAllister a grant of 337,447 restricted stock units in 2010 and a grant of 267,512 restricted stock units in 2012. The Plaintiff also asserts against the Board class action claims for violation of the fiduciary duty of candor and violations of Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder, alleging that the Proxy Statement is false and misleading because it fails to disclose the alleged violations of the 2004 Equity Incentive Plan in 2010 and 2012. Among other remedies, the plaintiff seeks a declaration that the awards granted to Mr. McAllister in 2010 and 2012 allegedly in excess of the applicable annual limit were ultra vires and void; rescission of the alleged excess grants; damages; an injunction against the 2013 Annual Meeting until corrective action is taken; and an order directing the Company to take all necessary actions to reform and improve its corporate governance and internal procedures to comply with applicable laws and policies. The Company strongly disagrees with the legal position taken by and allegations made by the plaintiff, and believes this lawsuit is without merit as the limitation in the 2004 Equity Incentive Plan derives from Section 162(m) of the Internal Revenue Code, which was not relevant in respect of these awards. However, in order to avoid unnecessary legal expenses and the potential distraction of litigation (which in each case the members of the Company's Compensation Committee and Mr. McAllister believed would not be in the best interest of the Company's shareholders), on April 6, 2013, the Company's Compensation Committee and Mr. McAllister agreed to rescind each of such awards to the extent each award exceeded 250,000 shares. To that end (i) Mr. McAllister paid back to the Company 87,447 shares received in respect of his 2010 restricted stock unit award and (ii) Mr. McAllister's 2012 restricted stock unit award (with respect to service in 2011) was reduced by 17,512 restricted stock units. In addition, although not subject to the litigation, consistent with the Compensation Committee's decision on April 6, 2013, on April 9, 2013, the Compensation Committee and Mr. McAllister rescinded 82,000 shares in respect of his 2009 restricted stock unit award of 332,000. Given the actions of the Company's Compensation Committee, it is the Company's position that this claim is moot. On June 12, 2013, the Company and the named directors filed a motion to dismiss this case. Stillwater Mining Company -- http://www.stillwatermining.com/-- mines and processes ores from its Montana operations containing palladium, platinum, rhodium, gold, silver, copper and nickel into intermediate and final products for sale to customers. Palladium, platinum, rhodium, gold and silver are sent to third party refineries for final processing from where they are sold to a number of consumers and dealers with whom the Company has established trading relationships. The Company is headquartered in Billings, Montana. STILLWATER MINING: "Casey" Suit Dismissed Without Prejudice ----------------------------------------------------------- The class action lawsuit titled Casey v. Stillwater Mining Co., et al., was dismissed without prejudice in July 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 April 16, 2013, a putative class action complaint was filed by a purported shareholder in the Thirteenth Judicial District Court, Yellowstone County, captioned Casey v. Stillwater Mining Co., et al. The complaint names the Company and the board of directors as defendants, and asserts class action claims for breach of fiduciary duty against the board, and aiding and abetting claims against the Company. On June 7, 2013, the Company and the named directors filed a motion to dismiss the complaint. On July 17, 2013, the court entered an order dismissing this case without prejudice. Stillwater Mining Company -- http://www.stillwatermining.com/-- mines and processes ores from its Montana operations containing palladium, platinum, rhodium, gold, silver, copper and nickel into intermediate and final products for sale to customers. Palladium, platinum, rhodium, gold and silver are sent to third party refineries for final processing from where they are sold to a number of consumers and dealers with whom the Company has established trading relationships. The Company is headquartered in Billings, Montana. TOWERS PERRIN: Wins Prelim. Okay of $10MM Shareholder Suit Deal --------------------------------------------------------------- Writing for Courthouse News Service, Rose Bouboushian reports that a federal judge approved a $10 million settlement for former Towers Perrin employee-shareholders who allegedly lost millions when the global professional services firm merged to form Towers Watson. For much of Towers, Perrin, Forster & Crosby Inc.'s history, employees who were promoted to "principals" could buy its stock at much lower than book value, as long as they agreed to resell the shares to the company at book value upon retirement. Though the Stamford, Conn.-based firm allegedly promised shareholders that it would remain employee-owned, it merged with the global consulting corporation Watson Wyatt Worldwide to form a publicly-traded company, Towers Watson, in late 2009. That made the value of resold shares fly through the roof, Alan Dugan and other former employee-shareholders claimed in three federal complaints filed soon after the merger's approval. The complaints, which were later consolidated in the federal court in Philadelphia, asserted claims for breach of contract, express trust and fiduciary duty, as well as for promissory estoppel and unjust enrichment. But U.S. District Judge Mitchell Goldberg awarded the Towers Perrin directors summary judgment on December 11, 2012, finding that they never promised to keep the firm employee-owned. On appeal, and after consulting with the 3rd Circuit's chief mediator, the parties ultimately reached a $10 million settlement agreement to be split among 1,050 class members based on tenure and the number of shares they held when they left the company. The proposed settlement class includes all former principals who ended their services between January 1971 and June 2005, except for those who received any consideration arising from the merger, participated in the company's voluntary separation program in 2006, signed a release of claims related to reselling stock, were employees of Towers Perrin or Watson Wyatt at the time of the merger, or are current employees of Towers Watson. Goldberg preliminarily certified the class last week, finding that it met all requirements put forth by Federal Rule of Civil Procedure 23. "Given the common threads tying all the class members' claims together, class adjudication is plainly superior to hundreds of individual cases challenging essentially the same conduct," Goldberg wrote. The judge also preliminarily approved the settlement and the 16- page notice and manner of service. "At this stage, the settlement appears within the bounds of reasonableness warranting preliminary approval," Goldberg wrote. "While the $10 million recovery reflects but a fraction of the increased value from the public sale, plaintiffs were fighting an uphill battle by the time the settlement was reached." He continued: "This court had granted summary judgment as to all claims against all defendants, leaving plaintiffs with a substantial chance of receiving no recovery at all. Plaintiffs faced an uncertain outcome in the 3rd Circuit, followed by more litigation in this court, if they hoped to obtain a favorable judgment. This lengthy process would have resulted in significant cost and delay. "When compared to the relatively immediate and certain recovery promised by the settlement, there is good reason to think that the recovery is fair," Goldberg said. "In addition, the participation of the 3rd Circuit's mediator suggests an arms-length negotiation, rather than collusion for the benefit of attorneys or named plaintiffs. Class counsel's requested compensation, which plaintiffs represent will be no more than $3 million (not including expenses), or 30 percent of the total fund, also falls within the bounds of reasonableness." With more than 14,000 employees across the world and at its headquarters in New York City, Towers Watson reportedly reaped $3.42 billion in revenue last year. The Plaintiffs are represented by: Avani M. Shah, Esq. Francis J. Menton, Jr., Esq. Alicia D. Kelman, Esq. James Fitzmaurice, Esq. Rebecca A. Clareman, Esq. Steven H. Reisberg, Esq. WILLKIE FARR GALLAGHER LLP 787 Seventh Ave. New York, NY 10019 Telephone: (212) 728-8827 E-mail: ashah@willkie.com fmenton@willkie.com akelman@willkie.com jfitzmaurice@willkie.com rclareman@willkie.com sreisberg@willkie.com - and - Shaimaa Hussein, Esq. WILLKIE FARR & GALLAGHER LLP 300 W 55th Street, Apt. 3B New York, NY 10019 Telephone: (212) 728-8638 E-mail: shussein@willkie.com - and - Neill C. Kling, Esq. Evelyn Rose Marie Protano, Esq. HARKINS CUNNINGHAM LLP 4000 Two Commerce Sq. 2001 Market St. Philadelphia, PA 19103-7044 Telephone: (215) 851-6700 E-mail: nkling@harkinscunningham.com eprotano@harkinscunningham.com - and - Sherrie R. Savett, Esq. Jeffrey L. Osterwise, Esq. Roslyn G. Pollack, Esq. Lawrence Deutsch, Esq. Shanon J. Carson, Esq. BERGER & MONTAGUE, PC 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-5715 E-mail: ssavett@bm.net josterwise@bm.net rpollack@bm.net ldeutsch@bm.net scarson@bm.net The Defendants are represented by: Marc J. Sonnenfeld, Esq. Timothy D. Katsiff, Esq. Ann Lauren Carpenter, Esq. Matthew J. Siembieda, Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market St. Philadelphia, PA 19103-2921 Telephone: (215) 963-5572 Facsimile: (215) 963-5299 E-mail: msonnenfeld@morganlewis.com tkatsiff@morganlewis.com lcarpenter@morganlewis.com msiembieda@morganlewis.com - and - Michael L. Hirschfeld, Esq. Sean M. Murphy, Esq. Elizabeth Virga, Esq. Robert Hora, Esq. Stacey J. Rappaport, Esq. MILBANK TWEED HADLEY & MCCLOY LLP One Chase Manhattan Plaza New York, NY 10005 Telephone: (212) 530-5832 E-mail: mhirschfeld@milbank.com smurphy@milbank.com evirga@milbank.com rhora@milbank.com srappaport@milbank.com Dugan, et al. v. Towers, Perrin, Forster & Crosby, Inc., et al., Case No. 2:09-cv-05099-MSG, in the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia). UNITED STATES: Fed. Claims Court Tosses Claims in "Jones" Suit -------------------------------------------------------------- In the case, ANNETTE E. JONES; NORMAN SAMPSON; WAYNE RANDOLF SCOTT, ROLAND SIMMONS; HAZELLA THORNHILL, SIDNEY WALLACE, ANTHONY WILLIAMS, MICHAEL YAHKO, for themselves and on behalf of all others similarly situated, Plaintiffs, v. THE UNITED STATES, Defendant, NO. 11-681C, the defendant filed a motion to dismiss portions of the plaintiffs' complaint. The plaintiffs filed this class-action complaint on October 14, 2011, for themselves and others similarly situated, alleging that they are entitled to Sunday premium pay, pursuant to 5 U.S.C. Sections 5544(a) and 5546(a), for work performed on Sundays. The complaint seeks damages dating back to May 26, 2003. Judge Francis M. Allegra United States Court of Federal Claims ruled that that the six-year limitations period in Section 2501 of Title 28 fully applies. Accordingly, to the extent plaintiffs claim premium pay accruing for Sundays before October 14, 2005, those claims are dismissed. A copy of the Federal Claims Court's October 2, 2013 Opinion is available at http://is.gd/WOqy1Tfrom Leagle.com. For plaintiffs: Ira M. Lechner, Esq. Katz & Ranzman, P.C. Suite 250, 5028 Wisconsin Avenue N.W. Washington, DC 20016-4135 Tel: (202) 659-4656 Fax: (202) 237-2487 Daniel Gene Kim, Civil Division, United States Department of Justice, Washington, D.C., with whom was Acting Assistant Attorney General Stuart F. Delery, for defendant. UNLIMITED MOBILE: Conditional Class Cert. Granted in "Will" Suit ---------------------------------------------------------------- District Judge Jane Magnus-Stinson granted conditional class certification in BRITTANY WILL, et al., Plaintiffs, v. SOHAIL "NICK" PANJWANI, d/b/a Unlimited Mobile, et al., Defendants, NO. 1:13-CV-1055-JMS-MJD, (S.D. Ind.). Plaintiffs Brittany Will and Gabby Lozano filed the action against Defendants Sohail "Nick" Panjwani d/b/a Unlimited Mobile, Ali Panjwani d/b/a Unlimited Mobile, and S.V.A.Z. (IN) Inc. The Plaintiffs allege that Unlimited Mobile failed to pay them and others similarly situated to them in accordance with the overtime requirements of the Fair Labor Standards Act. Judge Magnus-Stinson grants the Plaintiffs' Motion for Conditional Certification and for Notice to Potential Plaintiffs. The Court conditionally certifies this class under the FLSA: All current and former Sales Associates, Managers and District Managers (or their functional equivalents) who have worked for Defendants at any of their Indiana, Illinois, Ohio, Missouri, Iowa, and Kansas retail locations. The Court overrules the majority of Unlimited Mobile's remaining objections to the Revised Proposed Notice and Consent Forms, with the exception of one that is undisputed but that the Plaintiffs apparently overlooked in modifying the Revised Consent form. To that end, the Court orders the last sentence of the first paragraph of the Revised Consent form to be modified to add the word "alleged" and read as follows: "I hereby consent to join this lawsuit seeking unpaid wages and overtime based on Defendants' alleged violations of the Fair Labor Standards Act, 29 U.S.C. [Section] 201 et seq." The Court ordered the parties to jointly submit a Second Revised Consent form based on this rulings. The Court further orders Unlimited Mobile to produce to the Plaintiffs' counsel a document in useable electronic format that discloses the names, home addresses, home telephone numbers, and email addresses, if known, of all potential plaintiffs. The opt-in period will commence seven days after Unlimited Mobile produces the document containing the referenced information, Judge Magnus- Stinson said. A copy of the District Court's October 1, 2013 Order is available at http://is.gd/FyGU1Afrom Leagle.com. UNITED STATES: Judge Pares Down Claims in Veterans Class Action --------------------------------------------------------------- Benjamin Horney, writing for Law360, reports that the U.S. Court of Federal Claims on Oct. 2 pared down a class action alleging part-time U.S. Department of Veterans Affairs employees were denied pay for Sunday work, ruling the Back Pay Act of 1966 does not alter when the statute of limitations to receive back pay begins. Judge Francis M. Allegra rejected workers' claims that they were owed premium back pay for Sundays they worked dating back to May 26, 2003, based on a provision in the Back Pay Act. Instead, the judge ruled, the statute of limitations goes only to Oct. 14, 2005, six years before the current case was first filed. "Plaintiffs' interpretation of this statute is simply wrong," the order said. The Back Pay Act contains a provision allowing the statute of limitations for a case to go back six years before the date of an administrative decision. In their initial complaint, filed in October 2011, the class argued that a 2009 decision in Fathauer v. United States -- in which the Federal Circuit ruled that part-time employees are entitled to the same premium back pay as full-time employees -- qualified as an administrative decision, and so the six years should go back from May 26, 2009, when the decision was issued. But Judge Allegra disagreed that the statute of limitations should be based upon the Back Pay Act, instead citing Section 2501 of Title 28 of the U.S. Code, which says all claims under the jurisdiction of the Court of Federal Claims have a statute of limitations going back six years from the date a suit was first filed. Class attorney Ira M. Lechner said the court's decision to ignore the cited Back Pay Act provision was a problem, and that he fully intended to appeal. "It just shows you that the federal government, and particularly the VA, has got to take responsibility for being an honorable employer in that it honorably interprets the law as the court directs it to follow," Mr. Lechner told Law360 on Oct. 3. "The Court of Appeals directed it to pay these people. These are people who work on the weekend when everyone else is with their family, so pay them, for god's sakes." Representatives for the U.S. government were not immediately available for comment on Oct. 3. The class is represented by Ira M. Lechner. The case is Annette E. Jones et al v. U.S., case number 11-681C, in the U.S. Court of Federal Claims. WELLS FARGO: Court Narrows Claims in "Davis" Class Action --------------------------------------------------------- The real estate at issue in the proposed class action captioned MACK DAVIS, et al, Plaintiffs, v. WELLS FARGO BANK, N.A., et al, Defendants, CIVIL ACTION NO. 6-11-CV-47, (S.D. Tex.) is part of an 800-acre development along the mid-Gulf Coast of Texas. But the allegations of fraud reach back to decisions made in Washington and Wall Street during the height of the financial crisis in the fall of 2008. In the spasm of bank merger activity that occurred during that period, when troubled banks bought their even more troubled brethren, Wells Fargo purchased Wachovia. As a result, Wells Fargo took on the mortgage loans that Wachovia had made to Plaintiffs to fund their real estate purchases at the development in Port O'Connor, Texas. Plaintiffs contend that a special and short-lived IRS rule aimed at encouraging the bank merger activity caused Wells Fargo to have "unusual loss incentives" resulting in its "victimization" of Plaintiffs when their loans came due. The temporary tax change removed the limit on the amount of loan losses from an acquired bank's balance sheet that an acquiring bank could deduct. Plaintiffs contend that as a result of this increased ability to deduct losses on Wachovia loans, Wells Fargo sold the homes at below market prices, instead of offering reasonable refinancing terms, when balloon payments came due on Plaintiffs' interest-only loans around 2009. A principal allegation of fraudulent activity supporting this "market value/tax manipulation scheme" is that Wells Fargo instructed appraisers to use only foreclosure sales as comparable because, as it supposedly told one appraiser, it "wanted the appraisals lower." This overall scheme serves as the basis for 14 different state and federal claims Plaintiffs assert against the Defendants: Wells Fargo Bank N.A., Wachovia Bank, N.A.; Greenlink LLC; Wells Fargo Home Mortgage, Inc.; America's Servicing Company; and several unnamed real estate appraisers. Wells Fargo filed a motion to dismiss contending that Plaintiffs' alleged scheme is implausible on its face, that federal law preempts some of the state law claims, that the economic loss rule precludes the tort claims, and that the individual causes of action fail to state a claim. In an October 1, 2013 Memorandum and Order available at http://is.gd/VdZvXEfrom Leagle.com, District Judge Gregg Costa rejected the Defendants' general plausibility, preemption, and "economic loss rule" challenges, but finds that a number of the claims are legally insufficient under the facts alleged. Judge Costa granted in part and denied in part Wells Fargo's motion to dismiss. Judge Costa held that except for the Texas Debt Collection Act claim, the statutory claims are dismissed. The common law claims survive except for the negligence and gross negligence claims, she added. The following claims remain in this case: * Texas Debt Collection Practices Act Claims; * Common Law Unreasonable Debt Collection; * Wrongful Foreclosure; * Fraud by Nondisclosure; * Unjust Enrichment; * Negligent Misrepresentation; * Civil Conspiracy; and * Aiding or Abetting. * Orrick Discusses Rail Freight Class Certification Reversal ------------------------------------------------------------ Orrick reports that on Aug. 9, 2013, the D.C. Circuit Court of Appeals in a unanimous decision overturned the district court's order granting certification of a class of direct purchasers in In re Rail Freight Fuel Surcharge Antitrust Litigation, 2013 WL 4038561(D.C. Cir. 2013). Plaintiffs, shippers who purchased railroad freight shipping services, alleged that the defendants conspired for many years to fix prices in setting rate-based fuel surcharges. They sought and obtained certification of a class action under Fed. R. Civ. P. 23(a) and 23(b)(3), which is granted if the court finds that "the questions of law or fact common to class members predominate over any questions affecting only individual class members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The D.C. Circuit reversed the district court's order based on the U.S. Supreme Court's recent decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In Comcast, the Supreme Court overturned an order certifying a class action. The plaintiffs in Comcast had proposed four theories of antitrust impact, all but one of which was rejected by the district court. The sole basis for certifying the class under Rule 23(b)(3) was a damages model based on all four theories of impact. The Court held that basing class certification on a damages model divorced from the theory of liability was insufficient under Rule 23(b)(3). The D.C. Circuit embraced the analysis in Comcast, explaining that "[it] is now indisputably the role of the district court to scrutinize the evidence before granting certification, even when doing so 'requires inquiry into the merits of the claim.'" In conducting that analysis, the D.C. Circuit found plaintiffs' regression model inadequate to support certification under Rule 23(b)(3), because it suggested that shippers who were indisputably unaffected by the alleged price-fixing conspiracy, due to long- term contracts, were harmed by it. Since the model was unreliable it could not be used to demonstrate class-wide injury. * Employers Must Consider Class Action Waiver in Arbitration ------------------------------------------------------------ Steven M. Berlin, Esq. -- berlis@mcblaw.com -- at Martin Clearwater & Bell LLP reports that ever since the 2001 United States Supreme Court decision in Circuit City Stores, Inc., v. Adams, many employers have been requiring employees to sign agreements to arbitrate employment claims. The Circuit City court held that under the Federal Arbitration Act (FAA), properly drafted agreements requiring employees to waive their right to a jury trial and arbitrate statutory discrimination claims, such as Title VII or ADA claims, are enforceable. The question of whether employee arbitration agreements also waiving the right to bring class-action claims are enforceable is still not fully resolved. However, at least for the time being, such waivers are valid in New York. Arbitration is a way to settle disputes outside the court system. Employers tend to favor such agreements for a variety of reasons, including that they often provide a quicker resolution, are less expensive and are decided by a trained impartial professional, not a jury. There are trade-offs, however, such as less pre-hearing discovery, no ability to appeal, and lawsuits by employees challenging the enforceability and scope of their arbitration agreement. In its 2011 AT&T Mobility LLC v. Concepcion decision, the Supreme Court ruled the FAA compels enforcement of an arbitration agreement that also waives the right of the individual to file a class action. Concepcion involved a consumer claim, the value of which was so low it allegedly did not make economic sense for a person to file an individual, as opposed to a class, claim. Employers hoped that Concepcion could be extended to enforce arbitration agreements pursuant to which employees waived the right to file employment-related class actions, such as collective actions for wage and hour claims under the federal Fair Labor Standards Act. While the issue has not been fully resolved by the Supreme Court, it seems that for now, at least in New York, the agreements are enforceable. Enforcement of class-action waivers had initially been derailed by two decisions, one issued in 2012 by the National Labor Relations Board in the D.R. Horton case and a 2009 decision by the federal Court of Appeals for the 2nd Circuit (which includes New York) In re American Express Merchants' litigation (Amex I). In D.R. Horton, the NLRB effectively ruled that despite the FAA's strong policy favoring arbitration agreements, employees covered by the National Labor Relations Act (NLRA) -- effectively non- supervisory employees in the private workforce -- could not waive their right to bring a class action because such waivers violate an employee's right under Section 7 of the NLRA to engage in concerted activity. D.R. Horton did not preclude arbitration of class claims, only waiver of the right to bring such claims on behalf of a class. As of this writing, that decision remains on appeal, but several federal courts that have been asked to apply it have refused to do so. While Amex I was not an employment decision, the 2nd Circuit invalidated an arbitration agreement's class-action waiver because the plaintiffs would incur prohibitive costs if compelled to arbitrate individually. In early 2013, the Supreme Court reversed that decision in American Express Co. v. Italian Colors Restaurant (Amex/Italian Colors). Relying on its Concepcion decision, the court held that the right to pursue that remedy is not necessarily eliminated just because it may not be worth the expense to prove a remedy on an individual basis. In Sutherland v. Ernst & Young LLP, the 2nd Circuit was faced with the question of the enforceability of an employee's class-action waiver in an arbitration agreement. In its August 2013 decision, the 2nd Circuit both declined to follow D.R. Horton and applied Amex/Italian Colors. The court held that the employee's claim for unpaid overtime wages had to be arbitrated and only on an individual basis. Specifically, the court held that the employee's class-action waiver is not rendered invalid by virtue of the fact that the claim is not economically worth pursuing individually. So what is the employment lawyer's prescription? Employers, whether a small medical practice or a larger healthcare institution, should strongly consider requiring employees to sign arbitration agreements that also waive their right to bring class- action claims. Employers that already have arbitration agreements should review those agreements to make sure class-action waivers are included. When designing or updating arbitration agreements, talk to counsel to be sure the agreements cover the needs of the organization and have the best chance of withstanding a legal challenge. Asbestos Litigation ASBESTOS UPDATE: Flintkote Keeps Coverage Disputes in Arbitration ----------------------------------------------------------------- Law360 reported that bankrupt construction products purveyor Flintkote Co. on Sept. 30 succeeded in pushing Aviva PLC and a British subsidiary into arbitration over more than $20 million in disputed asbestos liability coverage, with a Delaware judge binding Aviva to an arbitration agreement it never signed. According to the report, U.S. District Judge Leonard P. Stark determined that since Aviva had exploited a global mediation between Flintkote and other insurers for its own benefit, it was estopped from invoking a 1989 pact with the company. The case is Flintkote Company v. Indemnity Marine Assurance Company Ltd., Case No. 1:13-cv-00935 (D.Del.). Headquartered in San Francisco, California, The Flintkote Company is engaged in the business of manufacturing, processing and distributing building materials. Flintkote Mines Limited is a subsidiary of Flintkote Company and is engaged in the mining of base-precious metals. The Flintkote Company filed for Chapter 11 protection (Bankr. D. Del. Case No. 04-11300) on April 30, 2004. Flintkote Mines Limited filed for Chapter 11 relief (Bankr. D. Del. Case No. 04-12440) on Aug. 25, 2004. ASBESTOS UPDATE: Traces of Fibro Not a Concern for Newcomb Cleanup ------------------------------------------------------------------ Brooke Hasch, writing for ConnectTriStates.com, reported that the city of Quincy, Illinois, says it will move forward with the cleanup of the former Newcomb Hotel, despite a previous report that found traces of asbestos inside the building. According to the report, Quincy Building Inspector Michael Seaver says the building was gutted back in the late 1980s, at which point any asbestos found was removed or abated. "So, we know that but we don't have the documentation to show it wasn't there," Seaver said. But when a developer called, Three Diamond Development showed interest in renovating the old hotel a couple of years ago, the company paid to have the building inspected. "A copy of that [inspection] showed a small amount of floor tile, category 1 non-friable asbestos on certain levels of the building," Seaver said. The report traced the findings of about 220 square feet of tile containing some amounts of asbestos, generally located in hallways. "If we knew conclusively that, that was all that was in there, then by volume, that 200 square feet is negligible and the entire site wouldn't have to be monitored for asbestos contained material," Seaver said. "But the survey was done for renovation and not for demolition, the difference being in a pre-demolition inspection, they would open up wall cavities." New concerns with the Newcomb arose after a fire destroyed the vacant building on Friday, Sept. 6. Due to safety concerns, the city contracted with Blick's Construction to demolish the building down to the first story. Before the city can proceed with the cleanup, it must pay for an additional person on site to monitor any traces of asbestos, mandated by the Illinois Environmental Protection Agency. Andrew Mason with the IEPA says he's confident construction crews will handle the debris removal responsibly. "There are tons of old buildings. This is done all over the country. As long as it's being supervised, I'm confident it'll be done properly," Mason said. "The amount of asbestos found, it's not a big space, it's like a small room." "We'll have a competent person on site the whole time materials are being moved to monitor air qualities and to observe the materials as they're being removed and if they identify anything that's suspicious, it'll be treated differently and taken to a designated place in a landfill," Seaver said. The city received nine proposals for debris removal. Seaver says once the city approves a contract, the cleanup will take weeks if not longer. The original estimate of the cleanup was $500,000. "We don't even have ballpark figures at this point of even the first round of costs. We just received proposals of the balance of the cleanup work, so we'll evaluate those and hopefully make a recommendation and we can move forward with that work fairly shortly," Seaver said. ASBESTOS UPDATE: Fibro Rumors Fill University of Vermont Campus --------------------------------------------------------------- The Vermont Cynic reported that as recent rumors of asbestos in certain academic buildings circulated around campus, students were left to wonder if they were actually in danger or if the rumor mill was just grinding its gears. According to the report, safety programs manager Vince Brennan said that there is asbestos in some materials in the Rowell building, in the University of Vermont, but that it is in tact and therefore poses no threat to the occupants. "If there is some work that you are planning [that would] disturb the building materials, we would need to evaluate the work that is planned and the impact on the Asbestos Containing Materials," Brennan said. Junior Christian Dowd said he first heard that there was asbestos in some of the buildings on campus from another student. "[The student] said she has a class cancelled in Rowell because of an [asbestos outbreak]," Dowd said. "I get anxious in my Rowell classes now." Although the asbestos present in Rowell is currently stable, junior Kristin Tedeschi said she still feels uncomfortable that the substance is present at all. "Considering I have two classes in the building three days a week, it is very concerning," she said. "It is just suspicious that the school has not notified any students, it's something I believe we should be informed about, especially if we spend time there." ASBESTOS UPDATE: Fibro-Related Illnesses Still Killing More People ------------------------------------------------------------------ Nash Riggins, writing for Evening Telegraph, reported that an increasing number of Tayside, in Scotland, residents are falling victim to life-threatening asbestos-related illnesses, new figures have shown. According to the report, at least 109 people living in the NHS Tayside area were admitted to hospital last year for asbestos- related conditions. A total of 130 were admitted the previous year, while five years ago just 74 cases presented annually, the report said. It's been confirmed that 14 people in the Dundee area died during 2011/12 from one of five asbestos-related conditions -- an increase of almost 30% since 2007. The issue is particularly prevalent in the Tayside area, where a recent spate of work-related claims have highlighted the fatal health problems associated with asbestos. These claims include that of Dundee painters Willie Stewart and Billy Tully. Last month, Mr Tully filed a GBP20,000 claim against his former employers for unnecessarily exposing him to the hazardous material. Yet even those who have never worked directly with asbestos can still become a victim. George Anderson, a retired carpet salesman and lifelong Dundee resident, found out this year he had mesothelioma -- one of two deadly diseases that stem from asbestos exposure. Physicians estimate that every five hours someone in the UK dies from mesothelioma. For Mr Anderson, who has never worked with the dangerous substance, the discovery was particularly distressing. "I was quite looking forward to retiring at 70," he said. "I told the wife we'd get a campervan and finally do some travelling. Of course, none of that has happened. I just went in for my first chemotherapy session two weeks ago, and I'll be going back shortly for more. Hopefully it can slow the disease, but there's no cure." According to Alison Blake, the manager of local charity group Asbestos Action Tayside, stories like Mr Anderson's are becoming disturbingly common. "We've had more numbers coming through our doors this year than ever, and I don't suspect we're going to see numbers come back down, either," she said. "All the medical predictions are saying this disease hasn't even peaked yet." While a vast majority of those who may be suffering from asbestos- related illnesses will have likely contracted their conditions in the 1960s and 1970s, Ms Blake emphasises that even in this day and age, the public must remain alert. "We've still got asbestos in a lot of our schools, homes and offices," she said. "People will continue to come across this material, and they absolutely must be aware that any sort of exposure can be extremely hazardous." Asbestos-related conditions are also on the rise across the country. Scotland's Minister for Public Health, MSP Michael Matheson, formally disclosed the rising figures to Scottish Labour's Siobhan McMahon. Although Mr Matheson maintained that "acute asbestos poisoning is very rare", the Government's official numbers clearly indicate a recent spike in hospitalisations and deaths. ASBESTOS UPDATE: Fibro Fear Over Barn Fire at Langton Matravers --------------------------------------------------------------- Jane Reader, writing for Bournemouth Echo, reported that firefighters worked through the night to extinguish a barn fire at Langton Matravers, in Dorset, England. According to the report, crews from Hamworthy, Swanage and Poole were in attendance with relief crews from Poole and Bere Regis working through the night to damp down. The cause of the blaze is still unknown, the report said. At the fire's height, around 30 firefighters were at the scene of the fire on Spyway Farm, off Spyway, in between Langton Matravers and Swanage. Residents were advised to keep their doors and windows shut due to fears over asbestos. Crews from from Swanage, Wareham and Westbourne Fire Stations attended along with two specialist appliances. Firefighters allowed the fire to burn out under their supervision while also protecting nearby properties with the use of hose reel jets. On Oct. 1, Sean Frampton, temporary group manager from Poole Fire Station, said: "The barn is around 15 metres by 30 metres in size, and it is filled with straw and hay, which was being stored ready for the winter. "We are in the process of protecting the other barns, one of which contains a number of cattle, and another building which contains the milking parlour. "At this stage, there is no risk to the cattle, and we have set about using damp twigs and leaves to dampen down the area, to reduce the risk of the fire spreading. "The barn has an old-style asbestos-type roof, so we are advising residents to keep their doors and windows closed, and to stay indoors, if possible, to reduce the chance of smoke getting into their homes. "We also have Dorset Police travelling around Langton Matravers advising people to follow this instruction. "We are letting the fire burn, so that we do not contaminate any water courses, and we have the Environment Agency assisting us the best way for the water to drain away. "The fire has so far reduced down by around one third from around two hours ago, when I got here around two hours ago. "I believe it may be another two to three hours, before the fire is completely out. "The farmer here is going to assist us with the use of his tractor to help move things so that we can ensure the fire is out." An investigation is now being carried out by Dorset Fire and Rescue Service to establish the cause of the fire. ASBESTOS UPDATE: NYS Citizens to Vote on Mine Access to Adirondack ------------------------------------------------------------------ Kristen Griffin, writing for Mesothelioma.com, reported that Election Day in New York State will be more than about voting for political seats: this year, New Yorkers will be asked to vote on a state-wide referendum on whether to allow a private mining company access to land in the Adirondack Forest Preserve near Willsboro. According to the report, in exchange for expanding the boundaries by two hundred acres, NYCO Mineral Inc., miners of wollastonite, an asbestos-substitute, will return nearly fifteen hundred acres of land to the Forest Preserve. Voters across New York State will make the final decision on whether the exchange will take place on November 5, the report said. Under New York State law, any changes to the Forest Preserve must undergo a rigorous approval process including passing separately through the Senate and Assembly, and passing through a state-wide referendum. Reactions from environmental groups on the proposed land exchange is mixed: some are for the swap, pointing out that NYCO Mineral Inc. will be returning more land to be protected than that it is asking for to mine; while other groups are cite the larger impact the mining will have on the region. Part of the fifteen hundred acres are picturesque areas around the Derby Brook and Jay Mountain Wilderness area. What remains clear, however, is that if the exchange passes, one hundred jobs will also be protected. At the crux of the debate is wollastonite, a white mineral used in a variety of manufacturing and industrial settings. Often used as an alternative to asbestos especially in the manufacturing of friction products, the calcium-based mineral is most commonly mined in Upstate New York, Finland, China and Mexico. Asbestos, also a naturally-occurring mineral, is highly toxic, and exposure to asbestos dust can cause a lethal form of cancer known as mesothelioma. Mining for or manufacturing with asbestos has been banned, and for some products such as vehicle brakes that relied on asbestos' natural properties like heat resistance have used wollastonite instead. ASBESTOS UPDATE: Widow Files Mass Tort Claims v. 3 Companies ------------------------------------------------------------ Jon Campisi, writing for The Pennsylvania Record, reported that the widow of a lung cancer victim is suing three companies that dealt in asbestos, contending her late husband died as a result of injuries he sustained because of his exposure to the fiber during his working years. According to the report, Philadelphia lawyer Michael B. Leh, of the Locks Law Firm, filed a short-form complaint in the master asbestos litigation at Philadelphia's Common Pleas Court on behalf of Francesca Cerminara, of Ambler, Pa. The woman is suing in her capacity as special administrator of the estate of her late spouse, Francesco Cerminara, the report related. The three defendants named in the civil action are Ameron International Corp., Hajoca Corp., and J.A. Sexauer Inc. Francesco Cerminara died on May 1, 2012, at 81 years old, an apparent victim of asbestos-related mesothelioma, the complaint states. The former Montgomery County resident, who was a lifelong non-smoker, had been diagnosed with the disease in the fall of 2011. The late Cerminara had worked as a maintenance man, pipefitter, plumber and welder at Chemical Concentrate in Fort Washington, Pa. from 1961 to 1974, and at AmChem in Ambler from 1974 to 1988, the record shows. The companies listed as defendants in the case are accused of a host of counts including negligence and strict products liability. The plaintiff seeks an unspecified amount of damages. The case ID number is 130902438. ASBESTOS UPDATE: Eternit Insists Products are Fibro-Free -------------------------------------------------------- Business Day reported that Eternit Limited, one of Nigeria's foremost roofing and ceiling materials manufacturer, is insisting that its products, which also include concrete roofing tiles, are without asbestos content as insinuated in some quarters. According to the report, Eternit, which opened for business in 1974, is one the old generation industries in Nigeria and has over time garnered both experience and expertise in its products line, which are household names in the country today. Recently, there have been insinuations that the company's products still contain asbestos banned by the Standards Organisation of Nigeria over a decade ago, because it is believed to be harmful to human lives, the report related. Officials of the company told journalists recently at a media tour of the company that they do not make use of asbestos anymore, pointing out that "the last line of our products with asbestos content was churned out of our factory as far back as 2001. "For the sake of emphasis, and to correct the impression that Eternit products are asbestos products, none of our products contain asbestos. The asbestos component of our products mix has been replaced with synthetic new technology fibre over a decade ago." According to the officials, strong competition from imported building materials in the country is a challenge to their company, pointing out that in the face of keen competition among the manufacturers and dealers of building materials in Nigeria, the only way to remain relevant in the industry is not to compromise set standards for quality of products, but to insist on improving on quality of products at all times, no matter the situation. "Our products meet international standards; we have a good name in the building materials manufacturing sector of the nation's economy," they said, stressing that the company wants to maintain that good name. "Even with the good name the company is currently enjoying, we have to produce high quality products if we must remain in business following strong competition with foreign products being imported into the country that are cheaper than Eternit products. This is why our watchword at Eternit is quality and no compromise about it," they added. Explaining that over 800 people have been trained by his company free of charge on how to install various products of the company ranging from Duratile roofing tiles, Ultra span roofing truss, Super 7 and Ultra 7 roofing sheets and Super lightweight as well as Coolite roofing sheets, suspended ceilings, nailed ceilings and decorative ceilings, the officials said. In order to cover the nation effectively with their products, the company has concluded plans to open offices in Abuja and Port Harcourt. ASBESTOS UPDATE: Fibro Commonly Used in Sydney Houses ----------------------------------------------------- Asbestos products were commonly used in Sydney houses until about 1990, a press release by Asbestos Check stated. A known carcinogen, asbestos is a cause for concern for several Sydney homeowners. However, if the asbestos is in good condition and not likely to be disturbed, the risk is negligible. The press statement states, "In Sydney asbestos is commonly identified in asbestos cement fibro sheeting on eaves, gables, and wall and ceiling linings (especially in garages, bathrooms, laundries); corrugated roofs (especially old garages); electrical fuse boxes; under sinks (sound dampener pads and spray coatings); window putty and vinyl sheet. Many Sydney councils require asbestos surveys to determine the location and extent of asbestos prior to renovation or demolition. A pre-purchase asbestos survey before buying a house in Sydney can assist in determining the likelihood of asbestos if there are plans for renovations. Health Risks from Sydney Asbestos Houses Health risks from Sydney houses containing asbestos are low; however when disturbed, respirable asbestos fibres may be released into the air causing health issues. Engaging a licensed asbestos contractor to remove asbestos identified by an accredited asbestos surveyor is the best way to deal with the problem. Asbestos in Commercial Buildings and Workplaces in Sydney Legislation requires all commercial buildings that are a place of work to identify, assess and control risks associated with asbestos. An asbestos register is required to be developed, which will identify the location and extent of asbestos within the premises. All Sydney workplaces are required to provide information relating to asbestos health risks that may arise from the work." Asbestos Check provides commercial and domestic clients with extensive asbestos inspection services including asbestos identification, testing and management. ASBESTOS UPDATE: Center Offers Compensation To-Do List for Victims ------------------------------------------------------------------ The Lung Cancer Asbestos Victims Center has developed a compensation to-do list for diagnosed victims of mesothelioma or asbestos related exposure lung cancer victims. If a diagnosed victim or their family members are concerned about proper compensation, the following issues must be addressed: * For there to be a viable mesothelioma compensation claim there must be an actual written diagnosis from a medical doctor that includes a pathology report indicating mesothelioma. * For diagnosed victims of lung cancer, before a compensation claim can begin, there must be medical records that indicate asbestos scaring in a pathology report. * Because the typical diagnosed victim of mesothelioma or asbestos exposure lung cancer victim is between the ages of 60 and 70, it is vital the family have written records of workplaces where the victim could have been exposed to asbestos. In the instance of US Navy Veterans, this should include the victims job classification(s) such as: machinist mate, damage control, fireman, etc. The Lung Cancer Asbestos Victims Center says, "We fear most diagnosed victims of mesothelioma or related lung cancer victims, exposed to asbestos at work, rarely seek out proper compensation. The Center aims to do everything possible to change this. From a decade of experience, we believe US Navy Veterans are the one group most often shortchanged. Financial compensation for mesothelioma can range from hundreds of thousands, up to millions of dollars. Compensation for a lung cancer asbestos exposure victim can range from the tens of thousands, up to hundreds of thousands of dollars. These figures are relative to the amount of exposure to asbestos. This is why we encourage any diagnosed victim of mesothelioma, workplace asbestos exposure victim, or their family members concerned for a loved one to call us anytime at 866-714-6466." According to the Veterans Administration the states with the largest number of US Navy Veterans include: California, Florida, Texas, New York , Washington, Virginia, Maine, Ohio, Pennsylvania, Illinois, Hawaii, New Jersey, Massachusetts, Rhode Island, North Carolina, Georgia, Louisiana, Missouri, Michigan, Maryland, Indiana, Wisconsin, Minnesota, New Mexico, Colorado, Montana, North Carolina, Nevada, North Dakota, Arizona, New Mexico, Wyoming, Idaho, Oregon, and Alaska. According to the CDC, aside from the US Navy, other high risk workplaces for asbestos exposure include shipyards, power plants, manufacturing factories, chemical plants, oil refineries, mines, smelters, aerospace manufacturing facilities, demolition construction work sites, railroads, automotive manufacturing facilities, or auto brake shops. With mesothelioma or related lung cancer caused by asbestos exposure, the cancer may begin to show symptoms decades after exposure. As long as the victim or their family members can provide sufficient evidence of exposure to asbestos, the center will do everything possible to help them get what might be significant financial compensation. Included in this service is instant access to the nation's most skilled mesothelioma attorneys, or asbestos exposure law firms. For more information please call the Lung Cancer Asbestos Victims Center anytime at 866-714-6466. http://LungCancerAsbestosVictimsCenter.Com For more information about a rare form of cancer caused by exposure to asbestos called mesothelioma, please visit the US Centers For Disease Control's web site: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5815a3.htm The Lung Cancer Asbestos Victims Center would also like to direct people to the CDC's very informative web site call Asbestos Toxicity: http://www.atsdr.cdc.gov/csem/csem.asp?csem=4&po=7 ASBESTOS UPDATE: Deadly Dust at Work Caused Terminal Cancer ----------------------------------------------------------- This is Cornwall reported that a Par man died as a result of his exposure to asbestos at work more than half a century ago, an inquest has heard. According to the report, David William Lee, of Panstrasse Place, Tywardreath, died on December 12 last year at Mount Edgcumbe Hospice. An inquest into his death held at Truro Coroner's Court heard that Mr Lee had "a strong working history" of having been exposed to asbestos in the workplace, particularly when he worked as an electrician between 1961 and 1965, the report related. Mr Lee, who was aged 71 when he died, had been admitted to Derriford Hospital at Plymouth in 2001 suffering from respiratory problems, and a biopsy was done from which doctors diagnosed the disease mesothelioma. Mr Lee had stayed twice at Mount Edgcumbe Hospice and it was during his second period there that he died in his sleep, the inquest was told. Cornwall Coroner Emma Carlyon said she accepted the pathologist's finding that the cause of death was mesothelioma as a result of asbestos exposure, and that Mr Lee had also been suffering from underlying heart disease at the time of his death. Dr Carlyon concluded that Mr Lee died from an industrial disease. ASBESTOS UPDATE: Sutton Council "Negligent" Over Fibro Flats ------------------------------------------------------------ Sophia Sleigh, writing for Your Local Guardian, reported that leaseholders in a block of council flats have raised a series of concerns after potentially lethal asbestos was discovered during refurbishment works. According to the report, Sutton Council started work at Grange Court, Wallington, at the beginning of July when they discovered asbestos in the ceilings of the communal walkways. Seven of the eighteen properties are owned by leaseholders who face the prospect of picking up the shared cost of GBP7,000 asbestos removal, the report related. They argue that the initial survey, conducted before starting the refurbishment work, should have discovered the asbestos. The group has written to Sutton Housing Partnership, the contractor and the Health and Safety Executive with their concerns. These include a number of health and safety issues such as allowing a contractor to drill into the ceiling to remove old light fittings before the asbestos was discovered. Jo Fallon, a leaseholder who has lived in the block for eight years with her husband and daughter, said: "If [Sutton Council] have put my health, my child's health, their entire workforce and the public at risk they should be taken to court. "When they started the works they realised there was asbestos - however that is negligent. Before they started work they should have done a survey. "Considering they own the property they should know there is asbestos but they started refurbishing without checking. "It is ridiculously dangerous. It can be fatal you cannot mess with asbestos at any stage." A spokesperson for Sutton Housing Partnership said: "Following the discovery of asbestos on the soffits of walkways at Grange Court, Sutton Housing Partnership have carried out the necessary testing and have been working with the Health and Safety Executive to ensure all asbestos is removed safely and with minimum disruption to residents living in the block. "The well being and safety of our residents is our priority and we will continue to monitor the situation and ensure residents are kept updated." ASBESTOS UPDATE: Man Exposed to Deadly Dust on Steelworks --------------------------------------------------------- This is Scunthorpe reported that a Scunthorpe man worked in conditions which led to "heavy asbestos exposure" during his time as a steelworker, an inquest heard. According to the report, Cyril Branston died aged 85 at Lindsey Lodge Hospice in Scunthorpe on March 13. The report related that Dr Lorraine Sheehan, a consultant pathologist at Lincoln County Hospital, said Mr Branston had "heavy asbestos exposure". The cause of death was adenocarcinoma of the lung, due to heavy smoking and asbestos. A statement written by Mr Branston before his death, stated that from 1948 to 1958 and 1958 to 1965 he was employed at the Lysaght's steelworks in Scunthorpe. It said: "I had to crawl and work in very dirty asbestos areas during my day." Deputy coroner Andrew Pascoe told the inquest that Mr Branston was diagnosed with asbestos-related lung cancer last October. He said: "The statement of Mr Branston is clear that he had been exposed to a great deal of asbestos over a very long period of time." Mr Pascoe recorded a verdict of adenocarcinoma of the lung, the development of which was contributed to by both smoking and heavy asbestos exposure, of which the latter is an industrial disease. ASBESTOS UPDATE: Thetford Mother's Fear Over Fibro Risk ------------------------------------------------------- Andrew Fitchett, writing for EDP24, reported that a mother of two has said described her fears for her children's health after a housing association carried out work to remove asbestos from a burnt-out garage near her home. According to the report, Rebecca Capell, of Saxon Close, Thetford, was sat in her garden with her children, four-year-old Haiden and one-year-old Paige, while contractors sent by Flagship Housing worked on garages that back on to her house, without warning to residents. Ms Capell said she noticed the workmen were wearing face masks as they removed roofing and realised it was partly asbestos. She said she was worried the dust from the asbestos may have passed into her garden and been breathed in by her children. "They should have been telling us to keep the windows and doors shut. Luckily I knew the roofs had asbestos in them so I took my children straight inside but it was a sunny day and if we hadn't known we could have been out there the whole time they were working. "Asbestos is not nice stuff and they have put mine and my children's health at risk," she said. Ms Capell added that she has since spoken to her doctor who informed her any effects from asbestos would not develop for several years. The workmen were removing the roofs from garages that had burnt down after a fire on August 31. The blaze had started just days after residents had warned Flagship -- who own the garages -- that people had been fly- tipping there and that the area needed to be cleared. Ms Capell said she has since had Flagship Housing's health and safety officer visit her house and apologise for not warning residents of the asbestos removal. However, she said it was not an official apology and she is yet to hear from the housing association otherwise. A spokeswoman for Flagship said the type of asbestos being removed meant that Ms Capell had no reason to be concerned. "We take any works containing asbestos very seriously and always use professional contractors who work within strict health and safety guidelines. "In this case, our contractors were removing low level asbestos containing material, and with no wider risk to the public, it was not necessary to notify all properties within the area. "If any members of the public have any questions on such works we happily discuss this with them," she said. ASBESTOS UPDATE: Lordswood Fibro Transfer Site Plan Turned Down --------------------------------------------------------------- BBC News Kent reported that proposals for the storage and transfer of asbestos at a depot in Kent have been rejected by councillors following hundreds of objections from residents. According to the report, Asbestos First had wanted to adapt part of its existing site in Lordswood where asbestos is already stored in vans. Managing director Debbie Hales said the rejection of its application to transfer asbestos between vans and locked skips was disappointing, the report related. Medway Council's planning committee voted by 14-1 to refuse the proposal. 'Wrong area' Councillors refused the application to change the use of the depot in North Dane Way to an asbestos waste transfer station because of the impact it would have on the surrounding residential area. Following the vote, planning officers said it had not been demonstrated "that the development can be carried out without the risk of waste, which is not double bagged and in an unsuitable container, being either handled on site or flytipped in the vicinity of the site". The asbestos removal company had said the skips would be sealed and kept under 24-hour surveillance. Chatham MP Tracey Crouch, who objected the application on the basis of health risks, said the result was a testament to the campaign run by residents and local councillors concerned about the increased level of asbestos going through the site. Private waste "The committee made it very clear that they weren't opposed to asbestos sites in industrial areas, but they just didn't feel that this application was in the right area," she said. Ms Hales said Asbestos First would have to consider if there was a way forward . "It's going to make it very difficult to dispose of asbestos- containing materials. "Although council tips do accept private asbestos waste, they only accept cement bonded waste, so there is still currently nowhere for people to dispose of textured coating that contains asbestos in their houses or floor tiles," she said. ASBESTOS UPDATE: Trade Breakfast Attracts Hundreds of Workers ------------------------------------------------------------- Voxy.co.nz reported that more than 350 people working on the Canterbury rebuild downed tools for two hours early in the morning of Oct. 4 to learn more about working with asbestos and understanding the risks and controls that need to be in place. According to the report, the Canterbury Rebuild Health and Safety Programme team, part of the Ministry of Business of Innovation and Employment's Health and Safety Group, held the trade breakfast at Addington Raceway. "Managing the health risks of asbestos is a major issue in the rebuild, and it's absolutely crucial that any employer or principal working on the rebuild understands their responsibilities and requirements," says Programme Director Kathryn Heiler. "As the residential rebuild gets underway in earnest, many construction companies are asking for more information and advice on asbestos removal," Ms Heiler says. "In particular companies are interested in the process for applying for Certificates of Competence, a requirement for anyone who works with friable asbestos, or undertakes what's known as restricted work with asbestos. "Since 2011 MBIE has already held a number of smaller workshops and education sessions on asbestos and occupational health in the rebuild -- but it has been fantastic to see such a strong turnout . . . "Over the next few months the Programme team will be holding more of these types of events, helping to provide information and guidance on health and safety to rebuild workers and companies," Ms Heiler says. The trade breakfast covered off topics of: - hazard identification - asbestos sites - health issues - testing and sampling - responsibilities of employers and duty-holders - unrestricted and restricted work, andcge - Certificates of Competency. ASBESTOS UPDATE: Fibro Discovery Delays Victoria Square Upgrade --------------------------------------------------------------- Tim Williams, writing for Herald Sun, reported that the central road through Victoria Square, in Adelaide, will stay closed until early November after the discovery of asbestos piping. According to the report, Victoria Square redevelopment project manager Tom Playford said the delay was also a result of bad weather stopping grout drying between newly laid pavers. "Safety is the council's first and foremost priority, and while professionals have been engaged to appropriately remove and eradicate the asbestos, we have to allow adequate time to ensure this and associated works are carried out properly," he said. "There is no harm or risk to the community and a fully certified and licensed asbestos removal company have removed the asbestos, but unfortunately to do this properly additional time has been required. "The curing time of the grout between the pavers on the central roadway is critical to the structural integrity of the road surface, to ensure the road is strong enough to safely carry the weight of cars and buses." The central road was meant to open mid-October. Mr Playford said the upgrade would still be finished in time for the Tour Down Under in January. ASBESTOS UPDATE: Edinburg Uni Urged to Axe Fibro Claim Academic --------------------------------------------------------------- Gareth Rose, writing for The Scotsman, reported that Edinburg University is facing pressure to sever links with a leading academic whose work has become embroiled in a US court case. According to the report, Ken Donaldson, emeritus professor at the institution, coauthored papers which the New York Supreme Court heard "intended to cast doubt on the capability of chrysotile asbestos to cause cancer". The research was funded by a grant from Georgia-Pacific, the accused in an asbestos litigation suit, the report related. Professor Donaldson was not the main author, but his name appears on three of the papers. The court heard that one author Stewart Holm was employed by GP -- manufacturer of tissue, pulp, paper, packaging, building products and related chemicals -- and GP's "in-house counsel had reviewed the manuscripts before they were submitted for publication". The court has ordered an "in camera review", which means the raw data used for the research papers must be made available to be independently analysed. The most recent paper, published last year, compared the impact of two different types of asbestos -- chrysotile and amphibole -- in rats, arguing that the former was safer. In their conclusion, the authors added: "No cellular or inflammatory response was observed in the lung or the pleural cavity in response to the CSP exposure." That is in stark contrast to the World Health Organization's view on chrysotile asbestos. "There is sufficient evidence in humans for the carcinogenicity of all forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite, and anthophyllite)," the WHO's International Agency for Research on Cancer said. "Asbestos causes mesothelioma and cancer of the lung, larynx, and ovary. Also positive associations have been observed between exposure to all forms of asbestos and cancer of the pharynx, stomach, and colorectum." The research papers and court case have led to stinging criticism of Professor Donaldson from the academic community. Professor Rory O'Neill, of Stirling University's occupational and environmental health research group, said: "The professor's willingness to deliver a rationale for continued chrysotile use, while making a flat and flatly untrue denial of links to asbestos interests, raises further serious questions." He added: "If Edinburgh University does not wish to see its reputation tarnished, it should rescind Professor Donaldson's Emeritus professorship." At least two of the articles coauthored by Professor Donaldson contained the declaration: "This work was supported by a grant from Georgia-Pacific." However, some experts have argued the researchers should have been even more open about their links with the company. Susanna Bohme, deputy editor of the International Journal of Occupational and Environmental Health, wrote last year: "Evidence produced in the New York City Asbestos Litigation, provided to us by an attorney involved in that litigation, shows that Dr Donaldson received funding for asbestos litigation-related consulting for Georgia Pacific, a former manufacturer of asbestos- containing joint compound, facing action for asbestos-related claims. "GP also lists Dr Donaldson as an expert witness in ongoing litigation." In Scotland, asbestos victims won a landmark ruling against insurers at the UK Supreme Court in 2011, which could see billions paid out to Scottish sufferers. There are at least 1,200 Scots who have developed pleural plaques and will receive an estimated GBP20 million. However, the number of sufferers being diagnosed continues to grow and is not expected to peak until 2020. The Scotsman has seen an invoice from Professor Donaldson to Georgia Pacific, charging GBP150 for one hour's consulting. An Edinburgh University spokeswoman said: "Professor Donaldson is a recognised expert in his field who retired from the University earlier this year. "We are aware of the ongoing court case in the US that involves three papers co-authored by Professor Donaldson." Professor Donaldson declined to comment. ASBESTOS UPDATE: Iowa Demolition Firms Fined for Fibro Violations ----------------------------------------------------------------- Construction & Demolition Recycling reported that an Iowa judge has imposed a fine on a demolition firm in the state that allegedly failed to follow state regulations during a demolition project. According to the report, Iowa's District Court Judge Paul Miller has assessed an $80,000 civil penalty against the demolition firm Jai Santoshi Ma Inc., and its owner Bhupen Patel, for violating the state of Iowa's environmental laws in the demolition of a Williamsburg, Iowa, truck stop. The penalty follows a petition, filed in April 2013 by Iowa's Attorney General Tom Miller, against Patel and his corporation. The company had arranged to demolish the truck stop in May and June of 2012. Before beginning the demolition, the defendants allegedly failed to inspect for asbestos and notify the Iowa Department of Natural Resources. Sampling by the DNR and Patel's consultant showed that the demolition waste included asbestos-containing material. According to the state's lawsuit: * The defendants failed to remove the asbestos prior to the demolition. * The defendants buried some demolition debris on-site and sent other debris to a landfill for disposal without identifying the waste as containing asbestos. * For several weeks the defendants left the debris in the open air, without wetting it down to prevent the release of asbestos. Not until July 30, 2012, did the DNR confirm that Patel had finally removed the demolition waste piles and the previously buried waste from the site. The court's order, through a consent decree, resolved Miller's lawsuit. In addition to the civil penalty, the court ordered Patel and his company to refrain from further violations, identify and properly dispose of all asbestos-contaminated soil at the site, and provide the state with related reports, test results, and invoices. ASBESTOS UPDATE: U.S. Shutdown Doesn't Stop Cancer Care at NIH -------------------------------------------------------------- Tim Povtak, writing for Asbestos.com, reported that mesothelioma cancer patients being treated at the National Institutes of Health already enrolled in a clinical trial are not being affected by the partial federal government shutdown that began on Oct. 1. According to the report, although 75 percent of the staff -- an estimated 14,000 employees -- has been put on temporary leave because of the shutdown, more than 1,400 ongoing clinical trials, covering a myriad of diseases, are continuing, according to National Institutes of Health spokesman John Burklow. "Our patient care will continue," assured another NIH employee. Although the shutdown won't affect those already receiving treatment at the NIH, it will delay the start of new studies and treatment protocols, and temporarily suspend new research, according to the National Cancer Institute Advocacy Relations Department. Much of the NIH staff is part of the furlough. Burklow estimated that 200 people each week normally would be admitted to new trials at the NIH, but their enrollment now will be delayed until the shutdown ends. He also told CNN that six new clinical trials were scheduled to begin, but now must wait. It was unclear if any were related to mesothelioma. Affordable Care Act Prompted the Shutdown The shutdown, caused by the inability of Congress to agree on government funding legislation, began on Oct. 1 and has sparked intense debate over the consequences. At the heart of the funding battle is the controversial Affordable Care Act -- known as Obamacare -- that was passed in 2010 and is well supported by cancer advocacy groups, including the Mesothelioma Cancer Center. There are 11 mesothelioma-specific clinical trials already in various stages at the NIH. Dozens more are being conducted at various medical facilities around the country. Several mesothelioma patients began clinical trials, as scheduled, at non- NIH facilities. Some of those trials have been going on for years. The Mesothelioma Applied Research Foundation (MARF) estimates that the NIH sees 125 patients annually with mesothelioma. Clinical trials are especially important to mesothelioma patients because of the lack of treatment options currently available. Alimta is the only FDA-approved treatment for mesothelioma. The lack of options forces many patients to explore clinical trials and experimental therapies. Mesothelioma is a rare, aggressive cancer caused by exposure to asbestos, which was used extensively throughout the 20th century. It is diagnosed in an estimated 3,000 Americans each year. The majority come with a poor prognosis because the disease already has metastasized. In an effort to reopen the door to start new clinical trials, the U.S. House of Representatives introduced legislation -- Research for Lifesaving Cures Act -- that would have exempted the NIH from a government shutdown. The U.S. Senate rejected that proposal, insisting on a solution that would reopen all government operations. Meso Trials On-Going at NIH Among the drugs still being studied in mesothelioma clinical trials at the NIH during the government shutdown: SS1P: An experimental cancer drug, genetically-designed to attack the mesothelin protein that is over-expressed in mesothelioma tumors. ARQ 197: Known as tivantinib, it has shown an ability to block some of the enzymes needed for mesothelioma tumor cell growth. IMC-A12: An antibody designed to block growth-cell receptors that play an important role in the division of mesothelioma cancer cells. ISCOMATRIX: An experimental anti-inflammatory drug that can increase a body's immune system when combined with a mesothelioma tumor-cell vaccine. ASBESTOS UPDATE: Problems Remain in Handling Fibro in Christchurch ------------------------------------------------------------------ Radio New Zealand News reported that the Ministry of Business, Innovation, and Employment says there are still problems with handling asbestos, for workers in Christchurch involved in its rebuilding. According to the report, more than than 350 people attended a two- hour course on Oct. 4 to learn more about the potentially lethal substance, and how to deal with it safely. The report related that spokesperson from the ministry's health and safety group Kathryn Heiler says the majority of contractors are competent, but there are some who aren't identifying asbestos before starting work on a building. Ms Heiler says the ministry has received about 80 complaints about asbestos since the earthquakes. She says the workshop covered a variety of topics, including how to identify asbestos and what protective equipment should be worn. Ms Heiler says more workshops will be held over the next few months. ASBESTOS UPDATE: Gagnard Sues Avondale, Northrop Grumman et al. --------------------------------------------------------------- Holland Phillips, writing for The Louisiana Record, reported that several companies have been named in an asbestos lawsuit filed by a man who contracted lung cancer, which he attributes to his exposure to asbestos from the early 1970s. According to the report, Lones James Gagnard Jr. filed suit against Avondale Industries, Inc., Northrop Grumman Ship Systems Inc., Huntington Ingalls Incorporated, Eagle, Inc., Hopeman Brothers Inc., International Paper Company, Champion International, US Plywood, Liberty Mutual Insurance Company as insurer of Wayne Manufacturing Company, McCarty Corporation, Maryland Casualty Company as insurer of Marquette Insulation Inc., Metropolitan Life Insurance Company, Reilly-Benton Company, Taylor-Seidenbach Inc., Uniroyal Inc., Viacom Inc. as successor to CBS Corporation, Wayne Manufacturing, Albert Bossier, Certain Underwriters at Lloyd's London, OneBeacon Insurance Company, J.D. Roberts, and James Melton Garrett in the Orleans Parish Civil District Court on July 19. The plaintiff claims that he was exposed to injurious levels of asbestos and asbestos-containing products from his occupational exposure from 1972 to 1974 and subsequently contracted lung cancer. The defendants are accused of mining, manufacturing, selling, supplying, distributing, and using products unreasonably dangerous and known to possess inherent dangerous properties with high potential for injury, failing to warn the plaintiff as to the hazards of their products in their foreseeable use, failing to provide safety instructions to eliminate or reduce risks associated with the products, failure to inspect truthfully or adequately report product testing and medical studies, failure to properly design, producing defective products, and failure to properly package their products. In addition, employers allegedly failed to provide Gagnard with a safe place to work, adequate engineering or industrial hygiene measures to control the level of exposure to asbestos and failure to warn of associated hazards. An undisclosed amount is sought for all medical costs or expenses, lost earnings, mental suffering, anguish, pain, and suffering, physical pain and suffering, loss of quality of life and disability. The plaintiff is represented by David R. Cannella of New Orleans- based Landry, Swarr & Cannella LLC and the Nemeroff Law Firm. The case has been assigned to Division F Judge Christopher J. Bruno. Case no. 2013-06802. ASBESTOS UPDATE: Bosticks File Suit in St. Clair County ------------------------------------------------------- Kelly Holleran, writing for The Madison-St. Clair Record, reported that another asbestos lawsuit has been added to the asbestos docket in St. Clair County, Illinois. According to the report, Steve and Marsha Bostick filed an asbestos lawsuit Sept. 19 in St. Clair County Circuit Court against 65 defendant corporations. The Bosticks do not specify where they reside. They are represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. In their complaint, the Bostciks allege the defendant companies caused Steve Bostick to develop lung cancer after his exposure to asbestos-containing products throughout his career. Steve Bostick worked as a mechanic in the U.S. Army from 1965 until 1968, as a deckhand on the Mississippi River and as a mechanic at MTA City Bus Line from 1968 until 1971, as a power plant operator at TVA from 1971 until 1985 and as a power plant shift operator for the Army Corps of Engineers from 1985 until 2002, according to the complaint. The defendants should have known of the harmful effects of asbestos, but failed to exercise reasonable care and caution for the plaintiff's safety, the suit states. As a result of his asbestos-related diseases, Steve Bostick became disabled and disfigured, incurred medical costs and suffered great physical pain and mental anguish, the complaint says. In addition, he was prevented from pursuing his normal course of employment and, as a result, lost large sums of money that would have accrued to him, the plaintiff claims. In their 10-count complaint, the Bosticks are seeking a judgment of more than $100,000, economic damages of more than $50,000, punitive and exemplary damages of more than $100,000, compensatory damages of more than $50,000, punitive damages in an amount sufficient to punish the defendants, plus costs and other relief the court deems just. St. Clair County Circuit Court case numbers: 13-L-480. ASBESTOS UPDATE: Pa. Supreme Court Reinstates Defense Judgment -------------------------------------------------------------- Jon Campisi, writing for Legal Newsline, reported that the Pennsylvania Supreme Court recently overturned a lower appellate court's ruling that allowed three asbestos mass tort claims to proceed, with the high court noting that even the plaintiffs in the consolidated cases admitted that the litigation should be tossed. According to the report, in a Sept. 26 order, the justices vacated an Oct. 28, 2011 Superior Court ruling that vacated and remanded to the Philadelphia Court of Common Pleas a trial judge's ruling from a year prior that granted summary judgment to the defendants. The companies being sued by John C. Ravert, and taken over by representatives of Ravert's estate after he died, were manufacturers or distributors of asbestos-containing products. The plaintiffs alleged that Ravert's exposure to the defendants' products caused the man to develop mesothelioma, which later proved fatal. A Philadelphia Common Pleas Court judge initially awarded summary judgment to the defendants, the record shows, ruling that Ravert's deposition testimony failed to establish that he breathed asbestos-containing dust from the specific products made or supplied by the defendants. The trial court also found that expert affidavits submitted by plaintiffs' counsel represented "an artificial record which attempts to dehor [Mr. Ravert's] observation denying the existence of asbestos dust," the Supreme Court's per curiam order states. On appeal, the Superior Court, which is an intermediate appellate body, reversed the trial judge's decision granting summary judgment to the defense on the basis that asbestos dust may have been invisible to the naked eye, and that expert testimony was enough to establish a material issue of fact as to whether dust emanating from products associated with the defendants was a substantial factor in causing Ravert's mesothelioma, according to the high court's ruling. Superior Court judges also had stated that a plaintiff bears a diminished burden of meeting a frequency, regularity and proximity threshold of exposure in mesothelioma cases, since the disease may be caused by limited asbestos exposure. The justices noted in their order that the plaintiffs now concede that the factual record failed to show "regular and frequent enough exposures during which respirable asbestos fibers were shed by [defendants'] asbestos-containing products to defeat summary judgment." This admission led the high court to vacate the Superior Court's earlier order. In its order, the Supreme Court addressed a request by defendant Monsey Products Co. to have the justices reaffirm several governing principles deriving from prior cases, such as the "each and every exposure" theory that came out of a case titled Betz v. Pneumo Abex LLC. The 2012 case said the theory that each and every exposure to asbestos, no matter how small, is substantially causative of disease and may not be relied upon as a basis to establish substantial-factor causation for diseases that are dose- responsive. The high court also reaffirmed that expert witnesses in cases involving dose-responsive diseases cannot ignore or refuse to consider dose as a factor in their opinions. The justices additionally reaffirmed that summary judgment is available to defendants in cases in which only bare de minimus exposure can be demonstrated and where the basis for the experts' testimony regarding substantial-factor causation is the "any- exposure" theory. Justice Debra Todd filed a separate concurring statement in which she agreed with the rest of the bench that the plaintiffs' evidentiary concessions should lead the high court to reverse the Superior Court's decision. However, Todd said her colleagues "should have stopped there." "Instead, the Court proceeds to 'reaffirm' a series of unadorned holdings, simultaneously asserting they are 'well established,' but nonetheless re-expressing them," Todd wrote. "I cannot join this seriatimdicta, and so concur only in the result." Todd wrote that the plaintiffs' concession is the "end of the matter, as it fully supports our summary reversal, and, indeed, the Court does not explain how the expressed principles are relevant to our disposition." The justice also stated that the high court's "well-meaning" attempt to "accommodate" the defendants' request to reaffirm the various precepts "is to little avail in the end: as these statements are dicta, courts, including this one, are under no obligation to follow such dictates." Todd said she understands her colleagues' concern for the defendants, given the time and expense spent on the litigation, only to have the plaintiffs issue a last-minute concession, "and one which presumably could have been issued long ago." "Nevertheless," Todd continued, "with all due respect to the litigants that come before this Court, such effort is not justification, in and of itself, for this Court to issue proclamations. That is particularly true when those proclamations are unnecessary to our disposition, and are unmoored from any factual context." In the majority per curiam order, the high court pointed out that the case was accepted and reviewed on the court's discretionary docket, briefed and argued, "and we have never understood a party's merits concession to foreclose the Court's ability to explicate the ultimate disposition. "Furthermore," the order states, "the relevance of our discussion to the present case is plain and straightforward." The order states that the plaintiffs' attorneys read and understood Betz and other cases to mean what they say, "namely, that 'this Court will not allow Plaintiffs to prove that a plaintiff's exposure to a particular asbestos-containing product is substantially causative of [an individual plaintiff's particular] disease by the use of affidavits in which the expert's methodology is founded upon a belief that every single fiber of asbestos is causative.' "The main points we have delineated above represent nothing more than a modest elaboration upon this very reasoning supplied by the [plaintiffs] themselves in support of their controlling concession," the order states. "As such, it is difficult to appreciate what additional 'adornment' or 'mooring' is contemplated by the concurrence." The court wrote that in light of the "intensely protracted" nature of this case and other asbestos litigation, it has "acceded to [defendants'] reasonable request to provide whatever limited guidance we were able to supply under the circumstances." "Indeed, as explained in detail in the unanimous decision in Betz, the any-exposure opinion is simply unsupportable both as a matter of law and science," the high court wrote. "Our present effort to highlight this proposition while applying it in a case in which it is conceded to be dispositive, we believe, may be of some benefit to Pennsylvania litigants, in terms of crystalizing the essential burdens of proof." Chief Justice Ronald Castille and Justices Thomas Saylor, J. Michael Eakin, Max Baer and Seamus McCaffery joined in the per curiam order, and Todd filed her concurring statement. In addition to Monsey Products Corp., the other defendants who had been party to the litigation were A.W. Chesterton Co., Ace Hardware Corp., Pecora Corp. and Union Carbide Corp. ASBESTOS UPDATE: Hudson Valley Area Site of Illegal Dumping ----------------------------------------------------------- Kristen Griffin, writing for Mesothelioma.com, reported that a New York neighborhood is suffering from extensive, hazardous and potentially costly illegal dumping after a New York State Department of Labor inspection suspended work at a renovation project. According to the report, the stop-work ruling was the result of a DOL inspector's suspicions that the apartments undergoing renovations could potentially have asbestos. As a consequence, the large trash containers used by the site contractors to collect renovation debris are required to stay on the property. Now, these open, unsecured bins are attracting dumpers and critters alike. The apartment renovation project in the City of Newburgh is under the control of Toll Road Manor LLC, a developer who purchased the property from the Newburgh Community Land Bank for the purpose of redevelopment. However, with the stop-work order, the construction bins are attracting community members to secretly and illicitly dump unwanted items. From dead animals to couches to televisions, the construction bins are now filled to the brim, allowing the illegal dumpers to resort to the street to place their trash. The DOL's concern was that the apartment complex may contain asbestos, a highly toxic material, and consequently, the construction bins may also hold asbestos debris. Further inspector revealed that the construction bins do not contain asbestos, but the DOL wants the dumpsters to be treated as if they contain the hazardous materials. The efforts to control the construction bins are falling short. Not only are the bins unsecured -- thus allowing the illegal dumpers to gain access -- but they remain outside of the construction zone. If there was asbestos present in the apartment building and construction bin, then there is a considerable potential for environmental contamination and a health scare. Exposure to friable or disturbed asbestos can lead to serious health concerns including mesothelioma cancer, lung cancer or asbestosis. Another growing concern of neighborhood residents is what is being illegally dumped into the construction dumpsters may also be hazardous. Without the construction dumpsters being secured anything can be left. The dumpsters are required to stay on the property. ASBESTOS UPDATE: Ex-Cop Calls Out Perth & Kinross Council --------------------------------------------------------- Peter Swindon, writing for The Courier, reported that a former police officer is campaigning to force the council to remove asbestos from car garages and lock-ups across Perth and Kinross, in Scotland. According to the report, father-of-two Murdo MacDonald, 51, believes the carcinogen could be harming children. Perth and Kinross Council is reviewing the use of all the 1,780 units it owns and operates and a consultation has been launched. But Mr MacDonald insists the process should be fast-tracked to protect the public. He obtained figures from the council under Freedom of Information legislation which show that, of the sites it tested for asbestos, all 30 came back positive. Mr MacDonald also paid a private firm to test for asbestos at several garages and many of the samples were found to contain white asbestos, which the company described as a "class 1 human carcinogen", which should only be handled by "expert contractors". "It's got to the stage where somebody in the community has to take a stand and decide enough is enough," Mr MacDonald told The Courier. "I've got children and I want my kids to grow up healthy. There are kids going about here now and all those garages are bleeding fibres. "Young kids whose lungs are growing are breathing in these spores and these fibres. There is not a test been done to say that ground is clear. Somebody needs to take it on board and look at it." Mr Macdonald, from Bridge of Earn, served with the Metropolitan Police before retiring in 2005 and starting a taxi firm in Perth. He discovered that some garages and lock-ups are unusable after asking the council for permission to rent a site near Rannoch Road. He explained: "The council kept telling me they were let and I thought it was strange because I'm sitting there 365 days a year in my taxi and I never saw a soul. "I phoned every single councillor and only Dave Doogan took it on board. He arranged for them to be opened and every single one was empty. This was before asbestos was even mentioned. "What I want now is the council to fix this. It has to be done, by law." The council's housing spokesman Dave Doogan said: "Mr MacDonald has worked very hard to bring this issue to people's attention and it is very public-spirited. "At all times I have been happy to listen to Mr MacDonald's ambitions on this, which have coincided with the council's review of the situation." The SNP councillor recently brought an update report on garages and lock-ups before the housing committee, which pledged to consult with communities. He said: "When I took over as convener, I had serious issue with garages and lock-ups across Perth and Kinross, stemming largely from the fact the previous administration failed to get a grip of this issue. "As new convener, I was happy to support officers' ambitions to come up with a much more positive solution. "The first action we took was to commission a condition survey and from here on we will consult with local residents." The housing spokesman also insisted that the administration is committed to removing asbestos from all garages and lock-ups in the region. "Where it's found in council-owned garages and lock-ups, it will be removed in a method that fully recognises the potential hazard of that material," Councillor Doogan told The Courier. "Any action in this regard will take full recognition of public safety." He added: "As decisions are taken about individual sites, any removal work will follow on from this." ASBESTOS UPDATE: Firm Allowed to Make Asbestos Roofing Sheets ------------------------------------------------------------- Nirmala Kannangara, writing for The Sunday Leader, reported that in true Board of Investment style, an asbestos sheet manufacturing company in Ekala, Ja-Ela, in Sri Lanka, has been allowed to bypass the pre-conditions laid down by the BOI in the investment approval and to commence its production without any restriction. According to the report, Rhino Products Limited of No. 111, Maithri Mawatha, Ekala, Ja Ela, a subsidiary of Rhino Roofing Products of No. 30, Minuwangoda Road, Ekala, Ja Ela entered into an agreement with the BOI on May 29, 2008 to manufacture asbestos roofing sheets for the local market. As per the investment approval, all statutory requirements/ regulations stipulated under relevant legal enactments including the Factories Ordinance, and the National Environmental Act should be adhered to when improvements are made to the selected site and also during the operational period of the project. The investment approval further states that the site approval is valid only for the specific project referred to and all conditions stipulated in the BOI approval letter under reference should be complied with. It further states that an Environmental Protection Licence (EPL) should be obtained from the BOI prior to commencement of operations at the site. A completed application form should be submitted to the Director Environment Management of the BOI one month prior to commencement of trial operations. UDA letter to BOI noting that correct porcedure has not been followed to grant the development permit for Rhino Products, HRC recomendation for an EIA and BOI Investment Approval that stipulate to obtain EPL before commencement of operations Although it is as such, the BOI has allowed Rhino Products to commence its operational work in November 2011 without the proper approvals from the Ja-Ela Pradeshiya Sabha, the Urban Development Authority (UDA) or the Central Environmental Authority (CEA). Further, allegations have been levelled against the Rhino Products for getting the asbestos sheets manufactured in the parent company -- Rhino Roofing Products Limited at No, 30, Minuwangoda Road, Ekala, Ja-Ela. "Rhino Roofing Products, which was opened in 1962 is not a BOI company and produces 600 tons of asbestos sheets per day. Since this company is not a BOI company and does not enjoy tax concessions, they are bound to pay taxes to the Department of Inland Revenue. In order to evade paying taxes, the parent company dispatch part of their production to Rhino Products which enjoy tax holidays. This is a known secret, but interestingly the BOI is silent although they have been informed of this fraud. Let the Department of Inland Revenue take immediate action against Rhino Roofing Products for cheating the government and let the Ministries of Investment Promotion and Economic Development pay their attention to this at the very earliest," reliable BOI sources on conditions of anonymity said. Hence questions have been raised as to why the BOI is following a deaf and dumb attitude without taking any action against Rhino Products for obtaining asbestos sheets from its parent company. "Aren't these sheets brought to the BOI factory not for anything else but to be sold to the local market under the tax concessions," added the sources. The sources further accused the BOI for not finding out as to why Rhino Products increased their investment from US$ 18 million to US $ 26 million suddenly. "According to the letter dated May 22, 2008 sent to Chairman BOI by the Managing Director, Rhino Products, E. J. Gnanam, the company has decided to increase the initial investment by a further US$ 8 million to install larger Silos (huge steel circular containers standing upright to store cement). Increasing the investment by US$ 8 million, Rhino Products Managing Director has requested the BOI to grant them a tax holiday of eight years as per the existing BOI incentive package. Knowing that large scale categories get more tax benefits, they invested more with an ulterior motive. They are now enjoying more benefits by selling their products manufactured at the parent company through the BOI affiliated Rhino Products. While the country is incurring losses in billions because of this fraud, Rhino Products are gaining billions of profits," added the sources. Although Rhino Products and the BOI claim that the necessary approvals have been obtained before the company commenced its work, it has now come to the limelight that the local authority -- Pradeshiya Sabha (PS) has not followed the correct procedure when granting the said 'approvals'. In a letter dated January 10, 2012 to the Chairman BOI by D. G. W. Abeygunawardene, Director Enforcement, Urban Development Authority clearly states that despite their (UDA's) repeated requests, the local authority has not followed the correct procedure to grant the development permit for the industrial plant. The letter further states as thus, "It was explained comprehensively the weaknesses of the executing procedure of the planning powers vested to Chairman/ Secretary to Ja-Ela Pradeshiya Sabha and the absence of due attention on the environmental procedures to be followed for establishment of this kind of industrial plant in a residential area. Thus it is required to obtain the preliminary planning from UDA and CEA prior to the establishment of the subject industry. Considering this situation, the UDA is compelled to rectify the planning and environmental shortcomings in relations to approving this kind of industry". Questions have been raised as to why the BOI is silent when they have been empowered to take action against the investors who have violated their agreements. But in the case of Rhino Products, the BOI has aided and abetted the investor by allowing them to ignore the pre-conditions laid down in the investment approval. "Rhino Products started manufacturing asbestos sheets in November 2011 and has brought horrendous impact to the environment although the BOI is in deep slumber. Does the BOI follow the same procedure when they come to agreements with other investors? We do know that they have allowed certain other investors too to ignore their pre- conditions but not for all. By doing so, this government institution has become corrupt to the bone. The BOI is maintained by the tax payers' hard earned money and the tax payers do not want to see that their money is spent unnecessarily. Why should we maintain a team of rouges if they cannot discharge their duties by the people of this country? They boast of only foreign direct investments (FDI) but do not know that due to their bureaucracy, thousands of people in the vicinity are exposed to carcinogenic asbestos," said the sources. At a time when the World Health Organization (WHO) in 2006 declared all forms of asbestos as carcinogenic, it is questionable as to why the BOI allowed Rhino Products to commence its operation without the Environmental Protection Licence (EPL) which is compulsory to ensure that there is no adverse effect to the environment. The sources further said that had the BOI stuck to its pre- conditions, Rhino Products couldn't have started its production until they received the stipulated approvals. "It is the fault of the BOI. Why couldn't they follow their own guidelines? Allowing Rhino Products to ignore the pre-conditions is not a good move. This clearly shows how corrupt the BOI is. Unlike the early days, some of the present BOI higher officials can be bought for few thousand rupees. We have proof to prove how these officials have become super rich in few years at the BOI," added the sources. The sources further accused the BOI for permitting Rhino Products to commence its manufacturing work in November 2011 despite being aware that the CEA has not given their concurrence to the BOI for the EPL and even the UDA has not approved to allow this factory to have its operation at No. 111, Maithri Mawatha, Ekala, Ja-Ela. "In a letter dated July 20, 201, the Senior Deputy Director (Planning) UDA Gampaha has informed the Director Enforcement UDA that although factories have been allowed to set up in this area where Rhino Products Limited is situated, they have to be built according to the guidelines of the environment authority as it is also a residential area. As such the UDA does not approve the operations of the Rhino Products in this area," the sources said. Meanwhile residents at Maithri Mawatha, Ekala, Ja-Ela are up in arms against Rhino Products and Rhino Roofing Products for causing adverse environment impact. "Asbestos is a banned substance in over 40 countries and this mineral fibre which comes in various colours and types has been declared unequivocally by the WHO in 2006 as a cancer causing substance. Even the CEA has stipulated that it is harmful when transporting, manufacturing and handling asbestos. This is a horrendous damage to our environment. These factories do not only emit asbestos dust to the environment but also dumping carcinogenic waste to the wetlands where people depend on well water. Although both factories emit the asbestos dust, it is the old factory that dumps their poisonous waste to the wetlands," said the angry residents on condition of anonymity. They too confirmed to The Sunday Leader that the asbestos sheets are brought to the new factory from the old factory at Minuwangoda Road. "This is a regular sight. Although some environmental organizations have written to the BOI and Ministries of Defence, Investment Promotions, Economic Development and to the Finance Ministry about the fraud that is taking place within the two Rhino companies, it is surprising as to why they have failed to take action into this. This is a great loss to the country," they added. They further accused the BOI for not taking any action against Rhino Products since the company has not followed BOI regulations. "They have openly violated the BOI agreements. Although the BOI, the CEA, the UDA and the local authority -- Ja-Ela PS has inspected the site and have given their approvals initially, we learn that the PS has not followed the correct procedure to grant the building permits. Proper attention has not been drawn on environmental procedures that have to be followed when this kind of a plant is established in a residential area," said the angry residents. According to them, an environmental organization filed a case in Human Rights Commission (HRC) in 2009 seeking redress to the issue and added that Rhino Roofing Products and Rhino Products were asked to suspend their production activities until proper licences and approvals are obtained. "An environmental organization filed a case in HRC in 2009 (Case no: HRC/ 2073/ 09) seeking justice. Although the BOI and the CEA claim that Rhino Products does not need to carry out an EIA, the HRC clearly states that in terms of regulations an EIA is required to be done," they said. The HRC recommendation further states, "The Ja-Ela PS and the BOI had failed to follow the mandatory provisions of the Environment Act and had allowed Rhino to establish their factory in an area where a population of 30,000 live. Thereby they have deprived the local population the right to breath fresh air without pollution. They have been deprived of their right to access to fresh air and drinking water as the air has got pollution with asbestos and steel dust. The water is contaminated with sludge as a result of asbestos waste and the polluted water and industrial effluence have released to the environment untreated". The HRC recommendation further states, "I recommended that the licences granted to these institutions be suspended until the CEA conducts a proper evaluation and assessment of the environmental issues in terms of the National Environmental Protection Act No: 47 of 1980. Therefore it is recommended to suspend activities of Rhino Roofing Products and Rhino Products until proper licence and approvals are obtained from the BOI, CEA, SLLRD and the Ja-Ela PS". According to the residents, Rhino Roofing Products at Minuwangoda Road is operating without an EPL which had not been renewed by the CEA. "The EPL was cancelled on March 3, 2009 for violating the CEA regulations. Even there is another subsidiary of Rhino Roofing Products at No: 144/ 11, Minuwangoda Road, Ja-Ela manufacturing zinc aluminium sheets. The CEA has confirmed that this factory too is being operated without an EPL. This shows as to how the Rhino chain of factories are violating environmental laws of the country without any fear. How can the BOI claim that Rhino Products Limited does not need to carry out an EIA when the residents are exposed to the carcinogenic asbestos? This company shows no fear carrying out their illegal activities that violates environmental regulations. The UDA, in one of its letters to the Executive Director, BOI, establishes the fact that BOI officials have not visited the site to establish the impact of this factory on residents. The parent company continues to flex its muscles and pollute the environment without batting an eyelid," claimed the residents. According to them, as a result of the BOI conveniently ignoring their own pre conditions that the site needs a UDA approval prior to signing the agreement, the UDA fined Rhino Rs.14.39 million in October 2012 for this violation. The residents further said that Rhino Products does not send their employees for medical checkups once in three months as stipulated in the BOI agreement. "According to the BOI agreement, the company has had to send the employees for medical checkups once in three months. But the 65 labourers, supplied by an agency, are regularly rotated so it is not necessary to send them for medical checkups. As a result they take the cancer symptoms back home" they added. Meanwhile the residents, while accusing the Rhino Group of Companies for jeopardising the lives of the people by exposing them to carcinogenic asbestos, noted that the company had opened a Medical Incentive Care Unit (MICU) and an Operating Theatre at the National Cancer Institute, Mahragama. "While exposing our lives to cancer, the Gnanams have opened a Medical Incentive Care Unit and an Operating Theatre at the Cancer Institute Maharagama. This is ridiculous. If they are so concerned, why don't they shut these asbestos manufacturing plants and stop dumping carcinogenic waste in the wetlands," added the residents. However, Director Environment BOI, Shereen Perera said that Rhino has already submitted their application for the EPL but due to the Human Rights Commission case, the CEA has not granted the concurrence to the BOI to issue the EPL to Rhino Products. "Before the company commenced their production, they submitted us the application for the EPL. Generally this is a long procedure and takes time. But in this case, because of the HRC case, the CEA does not issue their approval until the HR case is over," said Perera. When asked whether the case is still pending, Perera said that she came to know that the case is now over but added that she was not informed officially. "Since we came to know that the case is over and because we were not informed by the HRC, one of our lawyers visited HRC on two occasions to meet the officers to find out what the status of the case is. However the lawyer has failed to meet any relevant officials at the HRC to know about the case. Then we sent letters to them requesting them to inform us what the latest developments are. For that they are yet to respond," said Perera. When asked as to why the BOI allowed Rhino Products to commence production knowing that they did not receive the EPL, Perera did not have a proper answer. However, Director General Central Environmental Authority Dr Alahapperuma confirmed that the CEA has not given its concurrence to the BOI to grant the EPL to Rhino Products. "CEA has not given its concurrence to the BOI to grant an EPL to Rhino Products. It is interesting to find out as to how this company has commenced manufacturing asbestos sheets without an EPL. There are no provisions for them to commence their production without an EPL. This is a gross violation of National Environment Act," said Dr Alahapperuma. Refuting allegations levelled against Rhino Products, Manager Human Resources Srilal Wickremasinghe said that all necessary approvals have been obtained from the relevant departments before the development work was initiated. "We did an Environment Impact Assessment (EIA) and has obtained the EPL, the UDA and PS approvals," said Wickremasinghe. When asked as to whether the company send all their workforce including the labourers for medical checkups as stipulated in the BOI agreement as there are allegations that only the permanent employees are sent for medical tests since the labourers are replaced very often, Wickremasinghe said that he has got all proof that they have followed the guidelines from the very inception. "We send them to Nawaloka Hospital for medical checkups. In regard to the labourers, they are supplied to us by two manpower agencies. The labourers who come to work in the factory continuously are sent for checkups but not those who stop halfway through," said Wickremasinghe. Wickremasinghe was not aware whether Rhino Roofing Products at 30, Minuwangoda Road, Ja-Ela sends their manufactured goods to the BOI enterprise -- Rhino Products at 111, Maithri Mawatha, Ja-Ela. "I am not aware of it but have to check with our Director. I will furnish all the details to you after consulting our Director," said Wickremasinghe. However till the paper went for publication, Wickremasinghe did not furnish the details he promised to provide. Meanwhile Gampaha District Factory Inspecting Engineer of the Labour Department Anura Kumara said that the labourers at Rhino Products are not sent for medical checkups. "Only the permanent cardre is sent but not the labourers as they are replaced very often. This is not a good sign. Since it is these labourers that are exposed to carcinogenic asbestos, they should be sent for checkups. But the manpower agencies that provide these labourers rotate them before completing 90 days," added Kumara. Meanwhile Piyal Panapitiya, Director (Engineering Approvals and Special Projects) BOI when contacted said that although Rhino Products obtained the necessary approvals from the local authority, later it was found that they (Ja-Ela PS) has not followed the correct procedure to grant the development permit to Rhino Products. "Until the UDA informed us that the Ja-Ela PS had not followed the correct procedure the BOI did not know of it. That was why we signed the agreement with the investor and allowed them to start the development work," said Panapitiya. However when queried as to whether the BOI would have not allowed Rhino Products to commence its development work and then the production work if they knew that the investor had not obtained the required approvals and licenses, Panapitiya said that Rhino Products would not have been allowed to commence work. When asked as to why then they allowed the investor to commence its operation knowing that they had not received the EPL, Panapitiya agreed that it was the fault of the BOI. "I am not in charge of that section but still I totally agree with you as we wouldn't have signed the agreement since the CEA did not give their concurrence to the BOI to grant the EPL to the investor," said Panapitiya. ASBESTOS UPDATE: Commissioners Vote to Demolish 2 Butte Buildings ----------------------------------------------------------------- The Missoulian reported that the Council of Commissioners for the city and county of Butte-Silver Bow, in Montana, has voted to demolish two historic buildings in Butte. According to the report, commissioners voted 10-2 on Oct. 2 to remove the buildings after potential developers didn't come forward, The Montana Standard reported. Historic preservation officer Jim Jarvis recommended that the buildings, called the Deluxe and Brinck's, be demolished. He noted that Butte has other buildings of greater importance. An asbestos abatement plan is needed before demolition can begin, officials said. Crews won't be available for at least a month, and demolition will take about two weeks. Brendan McDonough voted to save the buildings. "I feel like a divorce attorney," McDonough told the crowd. "We're all losers tonight. However we vote tonight -- we all lost." Those in favor of saving the buildings cited preserving the historic nature of Butte. Those who wanted them removed said the buildings were hazards. "It devalues our building," said Deborah Thomas, who owns a building next to the Deluxe. "That building does pose a danger." Bill Boone lives near the buildings and told commissioners they should come down. "It's a dead horse," Boone said. "No point in trying to ride it again." Terry Schultz, a former commissioner, said the buildings should be preserved until a developer comes forward because they are treasured resources and part of the attraction to Butte. "No one will come to take a picture of a new parking structure," Schultz said. Brian McGregor, owner of the Silver Dollar Saloon, previously presented a proposal that commissioners rejected. He asked the council to seal up the buildings to allow more time for potential developers to come forward. "The buildings represent the fabric of our community," McGregor said. ASBESTOS UPDATE: Fibro Fibers Found in Rock in Proposed Wis. Mine ----------------------------------------------------------------- Lee Bergquist, writing for Milwaukee-Wisconsin Journal Sentinel, reported that asbestos mineral fibers have been found in a rock sample at the site of a proposed iron ore mine by the Wisconsin Department of Natural Resources. According to the report, the agency said on Oct. 7 that asbestos was confirmed by the Wisconsin Geological and Natural History Survey recently after a DNR geologist visiting the site last spring suspected the rock contained telltale fibers of the known carcinogen. The findings are sure to figure into the ongoing controversy over Gogebic Taconite's proposed $1.5 billion iron ore mine in Ashland and Iron counties, especially after the company said earlier this year it didn't believe asbestos was present in the rock. Gogebic, based in Hurley and a unit of a larger Florida-based coal mining concern, has been conducting preliminary work as part of its plans to apply for permit to mine iron ore from a large open pit that could run for 4 miles on the Gogebic range. Until now, environmental questions have revolved around other issues. The most notable is the potential of sulfide rock that could cause an acidic condition that could harm streams and habitat downstream. The discovery of asbestos in the local rock has come under fire from critics and is sure to be raised by opponents as a reason to reject the mine. One group, the Penokee Hills Education Project, hiked to the site to survey wetlands. It issued a statement saying the project should be tabled because of asbestos issues. But the DNR cautioned that the extent of the mineral known as grunerite on the potential mine site is not yet known. If Gogebic goes ahead with its formal application, the company would be required to conduct studies on the extent of asbestos in the rock, how it would control the spread of airborne emissions and how emissions from mining operations would be monitored, according to Larry Lynch, a hydrogeologist at the DNR. Lynch said the presence of grunerite was not surprising, because asbestos particles have been found in other iron mining regions. The bigger question: How widespread is it in the rock? "The main concern is airborne particulates," Lynch said. "It will come down to how effective their dust control will be." In April, the University of Minnesota released results of a $4.9 million study showing a link between the amount of time spent working in the iron ore industry and an increased risk of contracting mesothelioma, a fatal cancer in the lining of the lungs. But researchers also said they could not be certain that the dust from taconite operations has been the cause of mesothelioma. The main cause of the disease is sustained exposure to asbestos particles in the air. Gogebic spokesman Bob Seitz said the company will conduct studies to determine the extent of asbestos in the rock. He said a mining bill passed last spring, and attacked by opponents, included language that mandated such detailed analysis for the first time. The DNR received formal notice about a week and half ago of asbestos in the the rock sample. Area residents, many of whom are opposed to the mine, traveled to one of the sites where Gogebic is proposing to conduct large-scale sampling of rock in Ashland County. The group included Tom Fitz, associate professor of geoscience at Northland College in Ashland, who said he found plenty of exposed rock with long, slender fibers typical of asbestos. "It isn't that hard to identify," Fitz said. "I was certain I was looking at it." Fitz said he is not an opponent of the mine. "I am a proponent of science," he said. "We need to understand the rocks before we move forward with anything." Sen. Robert Jauch (D-Poplar) opposes the project under the mining regulations approved by the Legislature. His district includes the proposed mine. The existence of asbestos "raises numerous serious scientific concerns about the geology of the area," Jauch said. Jauch was troubled that Gogebic said in a letter to the DNR on July 28 that it didn't believe grunerite would be found. "Based on our due diligence, the geologic conditions in the Gogebic iron range do not support the formation of asbestos," the company said in the letter. "The company was either in denial or they didn't care -- they're going to have to spend millions of dollars now to determine the extent of grunerite in the rock," Jauch said. Seitz said the company wasn't trying to mislead but made the comments based on information from consultants and data supplied by U.S. Steel, which conducted exploratory work decades ago. ASBESTOS UPDATE: Victim's Widow Awarded GBP180,000 in Compensation ------------------------------------------------------------------ BBC News England reported that a woman whose husband died from an asbestos-related cancer after working at a power station in Gloucester has been awarded GBP183,200 in compensation. According to the report, John Cuss, from Fairacres, Hereford, worked at Castlemead power station between 1961 and 1967 repairing pipes and pumps, many covered in asbestos. In 2009, he was diagnosed with asbestosis which developed into lung cancer and he died in 2011 aged 73. His former employer's successor, Magnox Limited, has accepted liability. 'Full of dust' The solicitor for his widow, Janet, said Mr Cuss had been exposed to asbestos on a "daily basis when colleagues were knocking asbestos lagging off pipes" and been given no protective clothing. Solicitor Brigitte Chandler said: "The air that he worked in was full of asbestos dust. "There was a huge amount of asbestos lagged throughout the power station." Magnox Limited has accepted liability and agreed to pay the family compensation for Mr Cuss's "pain and suffering". In a statement, a spokesman for Magnox, said: "Castlemead power station was not owned or operated by Magnox Limited nor were Magnox Limited Mr Cuss's employer. "However, we are the successor organisation to Mr Cuss's former employer, the Central Electricity Generating Board. "We are saddened about the death of Mr Cuss and our thoughts are with his family." All forms of asbestos were banned from use in the UK in 1999, after it became widely recognised as a serious health threat. Once commonly used as a fire retardant in buildings, asbestos fibres can cause the fatal lung cancer mesothelioma, and the scarring of the lungs known as asbestosis. ASBESTOS UPDATE: Man Sentenced in New Jersey Dumping Scheme ----------------------------------------------------------- Surviving Mesothelioma and Cancer Monthly reported that the U.S. Justice Department has announced that a New Jersey man will spend 15 months in prison for his part in a scheme to illegally dump thousands of tons of asbestos-contaminated construction debris -- putting others at risk for mesothelioma. He was the last person to be sentenced in the conspiracy. According to the report, asbestos is the cause of mesothelioma, a difficult to treat and aggressive cancer. At the height of its popularity from the 1940s to the early 1970s, asbestos was common in building products ranging from floor and ceiling tiles to joint compound, concrete and shingles. It is still present in tens of thousands of older homes and buildings today. In an effort to protect workers and the public from mesothelioma and other health risks associated with asbestos, the Environmental Protection Agency (EPA) has established strict rules for handling and disposing of asbestos. But 59-year-old Jonathan Deck of Norwood, New Jersey, along with at least two companies and four other people, were part of a plan to get around the costs associated with government-regulated asbestos removal. The group conspired to dump the contaminated construction waste on a 28-acre piece of property along the Mohawk River in upstate New York, potentially putting people downstream at risk for mesothelioma and other health problems. More than 400 truckloads of asbestos were dumped at the site before the conspiracy was revealed in an investigation that lasted five years and involved the EPA, the IRS, and police and environmental officials from both New York and New Jersey. In addition to his prison sentence, Deck was ordered to pay $492,000 in restitution to help in the cleanup of the site. In all, the case resulted in more than 10 years of prison terms and more than $1 million in fines, restitution and cleanup costs. Deck and the other conspirators will also have to help pay for any future cleanup costs. Mesothelioma is the most deadly of a range of health problems associated with inhaling or ingesting asbestos. The shape of microscopic asbestos shards prevents the body from safely expelling them. Decades of irritation and inflammation can lead to physiological changes that eventually result in mesothelioma. Construction workers and those who have worked or lived around an asbestos facility have some of the highest rates of mesothelioma in the world. Although some of these people encountered asbestos for years, the EPA has said there is no safe level of exposure and even small amounts of asbestos can increase mesothelioma risk. ASBESTOS UPDATE: Toxic Dust Found in Pre-Purchase Inspections ------------------------------------------------------------- Nicola Trotman, writing for Property Observer, reported that asbestos is found in one in four homes during their pre-purchase building inspections, according to Jim's Building Inspectors. Buildings built between the mid 1980s to 1990 are likely to contain asbestos, while buildings after 1990 are considered unlikely, according to the Australian government. Jim's Building Inspectors support the Australian Asbestos Network's view that its presence alone does not mean residents will get an asbestos related disease. "The most important thing is that home owners, property managers and tenants are aware that Asbestos containing materials are present so they can be vigilant about its management, especially when considering maintenance requirements and renovations," says Suzanne Commerford, director of Jim's Building Inspections. "It is when the Asbestos containing material is found in a damaged or degraded condition or it's high risk environment, such as frequently trafficked areas and exposed to the elements, which is of greatest concern. "Many of the houses we inspect do fall into that age range of 1945 to 1980. This is the construction period considered by the Australian Government to be highly likely that Asbestos containing materials are present." Says Commerford. Commerford says in many circumstances, leaving Asbestos alone is the best course of action. "Importantly, we are not aligned with an Asbestos removal companies who may have a bested interest in overstating the situation," says Commerford. Jim's Building Inspections recommends that an Asbestos inspection and report be undertaken as part of your pre-purchase building inspections, by rental property owners and property managers before tenanting properties and by managers of workplaces needing registers and management plans for compliance. ASBESTOS UPDATE: Deposition of Pathologist Allowed to Move Forward ------------------------------------------------------------------ HarrisMartin Publishing reported that a special master overseeing the New York asbestos docket has issued a recommendation allowing a deposition of the plaintiff's pathologist to move forward as scheduled in Milan, Italy. According to the report, in a recommendation written Sept. 26, New York Supreme Court for New York County Special Master Shelley Rossoff Olsen additionally ordered that co-worker depositions must take place on a week other than the vacation week of plaintiffs' counsel. Special Master Olsen addressed the deposition of Dr. Juan Rosai first, noting that there had been "much contention" over the plaintiff's treating pathologist's testimony, the report related. ASBESTOS UPDATE: Firm Fined for Fibro at Ellesmere Port Plant ------------------------------------------------------------- Cheshire Today reported that a fertiliser manufacturer has been fined GBP60,000 after around 50 workers were exposed to potentially-deadly asbestos fibres at its plant at Ince Marshes near Ellesmere Port, in Cheshire, England. According to the report, GrowHow UK Ltd was prosecuted by the Health and Safety Executive after asbestos was discovered during the refurbishment of a 50-metre-high industrial furnace on 31 January 2011. Chester Crown Court heard that contractors had been demolishing brickwork and insulation boards for two days, using hammers, chisels and crow bars, before a bricklayer raised concerns that asbestos may be present. This was confirmed when material from the site was taken for analysis. The HSE investigation found GrowHow had failed to carry out an appropriate asbestos survey before allowing the project to start, despite the fact that the demolition work was likely to create large amounts of dust. GrowHow UK Ltd was fined GBP60,000 and ordered to pay GBP17,094 in prosecution costs after pleading guilty to one breach of the Control of Asbestos Regulations 2006 and two breaches of the Health and Safety at Work etc Act 1974 on 4 October 2013. Speaking after the hearing, HSE Inspector Daniel Longdon said: "Dozens of workers at GrowHow were exposed to potentially deadly fibres because the company didn't carry out a risk assessment to see if asbestos was present in the industrial furnace. "They will have to live with the uncertainty for the rest of their lives of not knowing whether they will develop lung cancer or other diseases, such as mesothelioma, as a result. "If GrowHow had arranged a proper survey ahead of the work starting then the asbestos would have been identified and a licensed contractor could have been brought in to remove it safely." ASBESTOS UPDATE: Ex-Steelworkers Plagued by Fibro-Related Cancer ---------------------------------------------------------------- The British Steel-owned East Moors plant in Splott, Cardiff, closed in 1978, despite this, former workers are now coming forward to pursue asbestos related illness claims through the site's former owners', insurance company Zurich Commercial According to Wales Online, there are over 10 cases connected with the site, and it is believed that more are likely to surface. Conditions linked to asbestos exposure include - Mesothelioma, asbestosis and pleural thickening. It is quite often the case that such conditions are fatal, with their symptoms surfacing decades after exposure. William Tobutt, who was diagnosed with Mesothelioma, was employed as a union convener, and a bricklayer at the East Moors site for more than 20 years. Mr. Tobutt has allegedly claimed that workers at the plant were unaware of the risks associated with asbestos exposure. Mr Tobutt, now 83, was diagnosed with Mesothelioma in January, with doctors estimating his life expectancy to be between eight and 14 months. "The diagnosis has hit me for six, it really has," Mr Tobutt, from Llanrumney in Cardiff, said. "The doctor told me I had Mesothelioma, and said my life expectancy due to my age could be between eight and 14 months, but now I am having chemotherapy." Employees at the steelworks plant were believed to have been exposed to the material, as it was commonly used as lagging all pipe work; it was also present in a large number of the industrial sized furnaces, and roof sheeting. Thomas Fairclough, Executive at Asons Solicitors Stated that: "An Asbestos related illness can lead to a slow, painful death, taking up to 40 years for symptoms to present themselves. It is unfortunate that something hadn't been done sooner, safeguarding the health of those employed by the steelworks." Moves have already been made by Assembly Members to address compensation arrangements for sufferers of asbestos-related illnesses, with a Private Member's Bill by Pontypridd AM Mick Antoniw tabled to be debated this autumn. The Bill aims to get employers to pay for the treatment of workers, who contracted asbestos-related diseases, but its passage through the Senedd has been delayed, after the Department for Work and Pensions raised concerns. Mr Antoniw said he had heard examples from East Moors, and other sites in the 1960s, where employees used to have "snowball fights" with the material, as they were not aware of the dangers they were exposed to. He said: "Steelworks such as those at East Moors have always been known as a significant source of some of the worst examples of these types of conditions because of asbestos." "I have heard of stories that came about with people having snowball fights in the 60s -- young apprentices that would join a workplace and then they'd have 'snow time' where they came in and they'd tip asbestos down on him, because they didn't know about it." According to the HSE, Men who worked in the building industry, when asbestos was used extensively, are now among those most at risk of Mesothelioma. Predictions have been made, that in the worst case, annual deaths for men with asbestos related illnesses will increase to a peak of about 2100, around the year 2016. Asons Solicitors suggest that if someone would like to learn more about asbestos related illnesses, or if they would like to better understand Mesothelioma claims process, that such information is available at http://www.asons.co.uk,or via an expert helpline on 01204 521 133 Asons Solicitors is a Bolton-based law practice that specialises in personal injury and industrial disease claims. Founded by brothers Imran Akram and Kamran Akram, Asons Solicitors has developed to become a young and dynamic law firm that delivers practical solutions to clients in times of difficulty. Their continued focus on their staff has seen them awarded with the Investors in People "Gold Award"; which is reflected in the professional and personable approach they take in working with clients. They strive to grow and to develop, and their supportiveness and attention to detail ensures that their clients use them time and again. For further information contact: Email: info@asons.co.uk Website: http://www.asons.co.uk ASBESTOS UPDATE: Ruling in Conley Breach of Contract Suit Affirmed ------------------------------------------------------------------ Plaintiff Conley & Tibbits Properties, LLC, obtained insurance from Defendant Leatherstocking Cooperative Insurance Company to cover a rental property that it owns in Oneida County. Although the policy covered losses caused by, inter alia, fire, it contained an exclusion for losses or increased costs resulting directly or indirectly from "enforcement of any code, ordinance or law regulating the . . . repair . . . of a building," irrespective of "any other cause or event that contributes concurrently or in any sequence to the loss." While the policy was in effect, a fire damaged the building. Plaster had been disturbed while the fire was being extinguished, and a state code required under those circumstances that an asbestos survey be completed before any further action could be taken with respect to the building. The survey indicated that asbestos was present, and the Plaintiff obtained an estimate for the cost of removing the asbestos. Although the Defendant reimbursed the Plaintiff for all other parts of its claim, it denied coverage for the cost of asbestos removal. The Plaintiff thereafter commenced an action seeking "the full amount of the building damages and remediation of asbestos." The Plaintiff appeals from an order that denied its motion for summary judgment and granted the Defendant's cross motion for summary judgment dismissing the amended complaint. In an memorandum dated Sept. 27, 2013, the Appellate Division of the Supreme Court of New York, Fourth Department, affirmed, concluding that the Defendant established its entitlement to judgment as a matter of law by establishing that the policy does not provide coverage for the increased costs sought by the Plaintiff. The case is CONLEY & TIBBITTS PROPERTIES, LLC, Plaintiff- Appellant, v. LEATHERSTOCKING COOPERATIVE INSURANCE COMPANY, Defendant-Respondent, 980 CA 13-00372 (N.Y. App. Div.). A full- text copy of the Decision is available at http://is.gd/tWGukAfrom Leagle.com. GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFF-APPELLANT. GOZIGIAN, WASHBURN & CLINTON, COOPERSTOWN (E. W. GARO GOZIGIAN OF COUNSEL), FOR DEFENDANT-RESPONDENT. ASBESTOS UPDATE: NY Court Denies Bid to Junk "Juni" Exposure Suit ----------------------------------------------------------------- In an asbestos personal injury action, defendant Lipe Automation Corporation moves for summary judgment dismissing the complaint and all cross claims against it on the ground that Plaintiffs Arthur H. Juni, Jr., and Mary Juni, have not established that Lipe products contributed to Mr. Juni's asbestos exposure. In a decision and order dated Sept. 23, 2013, Judge Sherry Klein Heitler of the Supreme Court, New York County, denied the motion, holding that the record in the case is sufficient to raise a material issue of fact whether Mr. Juni was exposed to asbestos from Lipe clutches. While Mr. Juni could not specifically recall whether he personally installed a Lipe clutch, implicit in his testimony is that Lipe clutches were used interchangeably by him, and by others working in his presence, over the course of his long career, Judge Heitler held. The case is ARTHUR H. JUNI, JR. and MARY JUNI, Plaintiffs, v. A.O. SMITH WATER PRODUCTS CO, et al., Defendants, DOCKET NO. 190315/12, MOTION SEQ. NO. 005 (N.Y. Sup.). A full-text copy of Judge Heitler's Decision is available at http://is.gd/1YnF65from Leagle.com. ASBESTOS UPDATE: "McCloskey" Suit v. Goodyear Proceeds to Trial --------------------------------------------------------------- In the asbestos-related personal injury action captioned PATRICK McCLOSKEY and MARY ANNE McCLOSKEY, Plaintiffs, v. A.O. SMITH WATER PRODUCTS CO., et al., Defendants, DOCKET NO. 190441/12, MOTION SEQ. NO. 001 (N.Y. Sup.), Judge Sherry Klein Heitler of the Supreme Court, New York County, ordered the following: -- The Goodyear Tire & Rubber Company's motion for summary judgment is denied in its entirety; -- Goodyear Canada, Inc.'s motion for summary judgment is granted; -- the action and any cross-claims against Goodyear Canada, Inc. are severed and dismissed in their entirety; and -- the remainder of the action will continue as against the remaining defendants, including The Goodyear Tire & Rubber Company. A full-text copy of Judge Heitler's decision and order dated Sept. 23, 2013, is available at http://is.gd/x55J25from Leagle.com. ASBESTOS UPDATE: Nash Eng'g Dropped as Defendant in "Fischer" Suit ------------------------------------------------------------------ Judge Sherry Klein Heitler of the Supreme Court, New York County, in a decision and order dated Sept. 23, 2013, granted defendant Nash Engineering Company's motion for summary judgment dismissing the asbestos-related personal injury complaint and all cross- claims against it on the ground that Plaintiff Gertrude Fischer has failed to establish that decedent Arthur Fischer was exposed to any asbestos-containing product manufactured, distributed, sold, or installed by Nash. According to Judge Heitler, the Defendant has facially established its entitlement to summary judgment insofar as it has shown that Mr. Fischer never identified a Nash product as a source of his exposure. In turn, the Plaintiff has failed to meet her burden to raise a material issue of fact, Judge Heitler said. The case is GERTRUDE FISCHER, as Administratrix for the Estate of ARTHUR FISCHER, and GERTRUDE FISCHER, individually Plaintiffs, v. AERCO INTERNATIONAL, INC., et al. Defendants, DOCKET NO. 190462/12, MOTION SEQ. NO. 002 (N.Y. Sup.). A full-text copy of Judge Heitler's Decision is available at http://is.gd/Pe34lWfrom Leagle.com. ASBESTOS UPDATE: Bid to Dismiss "McDonald" PI Suit Denied --------------------------------------------------------- In an asbestos-related personal injury action, Defendant Hoffman- New Yorker, Inc., moves for summary judgment dismissing the complaint and all cross-claims against it on the ground that there is no evidence to show that decedent Leslie McDonald was exposed to an asbestos-containing product manufactured, sold, supplied, distributed or installed by Hoffman. Judge Sherry Klein Heitler of the Supreme Court, New York County, denied the Defendant's motion for summary judgment, holding that the sole evidence that the Defendant relied upon was unsupport and uncross-examined and is insufficient to form the basis of a motion for summary judgment. The case is ELSIE McDONALD, as Proposed Executrix for the Estate of LESLIE McDONALD, and ELSIE McDONALD Individually, Plaintiffs, v. CBS CORPORATION, f/k/a VIACOM INC., et al., Defendants, DOCKET NO. 190079/12, MOTION SEQUENCE NO. 001 (N.Y. Sup.). A full-text copy of Judge Heitler's Decision and Order dated Sept. 27, 2013, is available at http://is.gd/qfFywqfrom Leagle.com. ASBESTOS UPDATE: Recommendations Issued in "Walkup" Suit -------------------------------------------------------- Magistrate Judge Sherry R. Fallon of the United States District Court for the District of Delaware, on Sept. 26, 2013, issued two reports and recommendations in an asbestos-related personal injury action captioned LARRY WALKUP and BETTY WALKUP, Plaintiffs, v. AIR & LIQUID SYSTEMS CORP., AKA BUFFALO PUMPS, INC., et aI., Defendants, CIVIL ACTION NO. 12-1635-SLR-SRF (D.Del.). In the first report and recommendation, a full-text copy of which is available at http://is.gd/MmQE2Dfrom Leagle.com, the Magistrate Judge recommended that the Court deny the Plaintiff's motion to remand the case after finding that Defendant Foster Wheeler Energy Corporation has established federal removal jurisdiction. In the second report and recommendation, a full-text copy of which is available at http://is.gd/jQMPHMfrom Leagle.com, the Magistrate Judge recommended that the Court deny the motion to dismiss filed by "Swartz Defendants" composed of CBS Corp., Union Carbide Corp., Dana Companies, LLC, Whitney Automotive Group, and Crane Co.; and grant the motion to dismiss filed by Western Auto Supply Co. According to the Magistrate Judge, the Swartz Defendants offer no argument that merits the dismissal of the Plaintiffs' claims, warranting denial of their motion to dismiss. On the other hand, the Magistrate Judge, pointed out that the Court should grant Western Auto Supply's motion because the Plaintiffs have not served the Defendant with the complaint, despite having more than one year to do so. ASBESTOS UPDATE: RI Court Directs Further Discovery in "Cary" Suit ------------------------------------------------------------------ Defendants Watts Water Technologies, Inc. and Watts Regulator Co. move to dismiss the complaint of Gloria Cary for lack of personal jurisdiction. The Plaintiff objects to the motion, contending that the Superior Court of Rhode Island, Providence, SC, cannot exercise general personal jurisdiction over Watts but contends that Watts had sufficient minimum contacts with Rhode Island to establish specific personal jurisdiction. In a decision dated Sept. 30, 2013, the Superior Court said it will defer ruling on the motion pending further jurisdictional discovery, after finding that, in the case at bar, it is clear that Watts has not provided the Plaintiff with the "pertinent facts" that would enable the Court to determine whether specific personal jurisdiction is proper. The case is GLORIA CARY, EXECUTRIX OF THE ESTATE OF LAWSON CARY, JR., AND AS SURVIVING SPOUSE v. AMERICAN OPTICAL CORPORATION, ET AL., C.A. NO. PC 10-3263 (R.I. Super.). A full-text copy of the Decision, penned by Presiding Judge Alice B. Gibney, is available at http://is.gd/h9IJ2Kfrom Leagle.com. John Deaton, Esq., for Plaintiff. James A. Ruggieri, Esq., for Defendant. ASBESTOS UPDATE: Crane Co.'s Bid to Dismiss "Liman" Suit Denied --------------------------------------------------------------- Judge Sherry Klein Heitler of the Supreme Court, New York County, denied Crane Co.'s motion for summary judgment dismissing the complaint and all other claims asserted against it in the asbestos personal injury action captioned PETER C. LIMAN and REGINA FEINSTEIN, Plaintiffs, v. AIR & LIQUID SYSTEMS CORP., et al., Defendants, DOCKET NO. 190217/12, MOTION SEQ. 003 (N.Y. Sup.). Judge Heitler held that Crane is the only valve manufacturer identified by Mr. Liman with respect to his service aboard the USS Cascade. Whether or not Mr. Liman specifically recalled whether the valves he observed being maintained in his presence were manufactured by Crane or anyone else, the entirety of his testimony raises an issue of fact in this regard that should be decided by the jury, Judge Heitler said. A full-text copy of Judge Heitler's Decision and Order dated Sept. 19, 2013, is available at http://is.gd/4d0xhDfrom Leagle.com. ASBESTOS UPDATE: Time to Perfect Appeal in NY Litig. Enlarged ------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, issued four separate orders on Oct. 3, 2013, enlarging the time to perfect appeal to the April 2014 Term in the following asbestos-related cases: * IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to PERAICA, v. A.O. SMITH WATER PRODUCTS -- CRANE CO, MOTION NO. M-4236 (N.Y. App. Div.). A full-text copy of the Order is available at http://is.gd/BGjvhDfrom Leagle.com. * IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to McLAUGHLIN, v. AIR & LIQUID SYSTEMS CORPORATION -- CRANE CO., MOTION NO. M-4193 (N.Y. App. Div.). A full-text copy of the Order is available at http://is.gd/LRcJKqfrom Leagle.com. * IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to MUISE, v. AIR & LIQUID SYSTEMS CORPORATION -- CRANE CO., MOTION NO. M-4192 (N.Y. App. Div.). A full-text copy of the Order is available at http://is.gd/OtjgOCfrom Leagle.com. * IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to HISCHE, v. AIR & LIQUID SYSTEMS CORPORATION -- CRANE CO., MOTION NO. M-4191 (N.Y. App. Div.). A full-text copy of the Order is available at http://is.gd/ttVMjXfrom Leagle.com. ASBESTOS UPDATE: Calif. Court Affirms Ruling in "Swanson" Suit -------------------------------------------------------------- In a secondary asbestos case where the Court of Appeals of California, Second District, Division Three, was asked to determine whether to follow Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, in an action against a premises owner brought by its employee who initially was exposed to asbestos used in manufacturing the premises owner's products, but also allegedly was secondarily exposed off the premises to respirable asbestos on his work clothes or on his son's work clothes, who was also an employee, the Court of Appeals concluded that based upon the public policy factors laid out in Rowland v. Christian (1968) 69 Cal.2d 108, a premises owner has not duty to protect an employee from secondary exposure to asbestos off the premises arising from his association with a family member and fellow employee who wore asbestos-contaminated work clothes at home. The Court of Appeals stated that to hold otherwise would impose limitless liability on premises owners. The Court of Appeals further concluded that an employee's secondary asbestos exposure when wearing home his own work clothes is a collateral or derivative injury barred by the exclusivity provisions of the Workers Compensation Act. Accordingly, the Court of Appeals, in an opinion dated Oct. 2, 2013, affirmed the trial court's judgment of nonsuit. The case is ALBERTA SWANSON, Individually and as Successor, etc., Plaintiffs and Appellants, v. SIMPSON TIMBER COMPANY, Defendant and Respondent, NO. B244266 (Cal. App.). A full-text copy of the Decision is available at http://is.gd/0n43Cnfrom Leagle.com. Sharon J. Arkin, Esq., and Simona A. Farrise, Esq., at Farrise Law Firm, for Plaintiffs and Appellants. The firm may be reached at: FARRISE LAW FIRM 225 South Olive, Suite 102 Los Angeles, CA 90012 Tel: 1-800-748-6186 Fax: 1-510-588-4536 E-mail: info@farriselaw.com Stephen J. Foley, Esq. -- foley@foleymansfield.com -- and Keith M. Ameele, Esq., at Foley & Mansfield, for Defendant and Respondent. ASBESTOS UPDATE: Miss. Judge Reprimanded in Misconduct Case ----------------------------------------------------------- In a judicial-misconduct case, Eddie H. Bowen, Circuit Court Judge for the Thirteenth District, State of Mississippi, failed to disclose a conflict to the parties in a civil lawsuit and failed to rule on counsel's motion to recuse made after the conflict was discovered. The Mississippi Commission on Judicial Performance recommended, in a joint motion for approval of recommendations, that Judge Bowen be publicly reprimanded and assessed costs in the sum of $200 under Section 177A of the Mississippi Constitution of 1890, as amended, and Rule 10A of the Rules of the Mississippi Commission on Judicial Performance. After reviewing the record, the Supreme Court of Mississippi, ruling en banc, found that the recommended sanctions are insufficient. Accordingly, the Supreme Court ordered that Judge Bowen be publicly reprimanded, fined $500, and assessed costs in the amount of $200. According to the agreed facts, the judicial-misconduct case arose from the the matter of Brown v. Phillips 66 Co., Union Carbide Corp., et al., Smith County Circuit Court Civil Action No. 2006- 196, where Brown sought damages from the Defendants based on his alleged exposure to asbestos. The case is MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE, v. EDDIE H. BOWEN, NO. 2013-JP-00776-SCT (Miss.). A full-text copy of the Decision, dated Oct. 3, 2013, is available at http://is.gd/lqilHTfrom Leagle.com. DARLENE D. BALLARD, Esq., and JOHN B. TONEY, Esq., Attorneys for Appellant. SAM S. THOMAS, Esq., Attorney for Appellee. ********* 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. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *