/raid1/www/Hosts/bankrupt/CAR_Public/131122.mbx
C L A S S A C T I O N R E P O R T E R
Friday, November 22, 2013, Vol. 15, No. 232
Headlines
9140-5621 QUEBEC: Recalls Certain Cheese Due to E. Coli
ALCOA INC: Seeks Cost Award in Former Employees' Suit in Tenn.
AMECO PARADISIO: Recalls Polo Pyjamas
AMERICAN HOME: Denial of Sanders' Matrix Benefits Affirmed
AUTOLIV INC: Faces OSS Automobile Parts Antitrust Litigation
AUTOLIV INC: Pension Trust Amends N.Y. Securities Complaint
BAJA INC: Recalls Mini Bikes Due to Fall, Crash Hazard
BP EXPLORATION: Bid to Intervene in Deepwater Horizon Suit Upheld
CAISSIE GROCERY: Recalls Certain Caissie Meat Bakery Products
COSTAR GROUP: Show Cause Hearing in Suit Over Merger Set for 2014
COSTCO #251: Recalls Certain Kirkland Bakery Products
COSTCO WHOLESALE: Court Dismisses Second Amended "Maple" Case
CROUSE HEALTH: "Meyer" Suit Settlement Gets Final Court Approval
FACEBOOK INC: Supreme Court Won't Touch $9.5MM Beacon Settlement
FORD MOTOR: Sued Over Improper Deductions When Replacing Cars
INTERNAP NETWORK: Final Approval Hearing of Securities Suit Set
INTUIT INC: Settles Tech Labor Conspiracy Case for $20 Million
KCBX TERMINALS: Chicago Neighborhoods Choking in Toxic Dust
LES SALAISONS: Recalls Smoked Meat Due to Listeria Monocytogenes
LG ELECTRONICS: Faces Antitrust Suit Over Optical Disk Drives
LINDEN RESEARCH: Settles "Second Life" Users Suit With Real Cash
LOBLAW COMPANIES: Recalls Suraj Garlic Powder Due to Salmonella
MERCEDES-BENZ USA: Heated Seats Burn Occupants' Butts, Suit Says
MIDEA INTERNATIONAL: Recalls Garrison 1500W Oil-Filled Heaters
MIKE MEISNER: Inmates' Bid in Suit vs. Prison Officers Denied
MINNESOTA: Court Narrows Claims in Privacy Suit vs. DHS
MIRACO EURO: Recalls Eurocrem Spread Due to Undeclared Almonds
NATIONAL FOOTBALL: Court Enters Final OK of "Dryer" Suit Deal
NEW YORK: Found Liable for ADA, Rehab Act and NYCHRL Violations
NORTH CAROLINA: Motion to be Heard in "Bumgarner" Suit Denied
NTS INC: Being Sold cheaply Through Unfair Process, Suit Claims
OVERSTOCK.COM: Settlement of Suit Over Facebook Product Appealed
OVERSTOCK.COM: Dismissal of Suit Over Returns Policy Now Final
QUEST DIAGNOSTICS: Certification of ERISA Violations Claim Sought
QUEST DIAGNOSTICS: Celera Securities Litigation in Discovery
QUEST DIAGNOSTICS: Objects to Class Proceedings in "Beery" Suit
QUEST DIAGNOSTICS: Seeks to Dismiss Suit by Biotechnology Value
QUEST DIAGNOSTICS: Settles Lawsuit Over "Unsolicited" Fax Ads
ROBERT BOSCH: Employees Compelled to Pay Tax Refunds, Suit Says
ST. LOUIS, MO: Court Dismisses Ballard's Suit as Frivolous
ST. LOUIS SEWER: Trial Court Ruling in "Zweig" Suit Upheld
TIME WARNER: Fails to Pay Minimum and Overtime Wages, Suit Says
TRAVELZOO INC: Plaintiffs in Securities Suit Withdraw Complaint
UBS FINANCIAL: 5th Cir. Orders Arbitration in "Hendricks" Case
UNIT DRILLING: Motion to Dismiss Claims in EEOC Suit Denied
UNIV. OF MISSOURI: Appeals Ct. Affirms "Dunn II" Case Dismissal
URBAN OUTFITTERS: Accused of Altering Records to Avoid Paying OT
VIKING RANGE: Recalls Built-In Side-by-Side Refrigerator Freezers
WAL-MART STORES: Awaits Decision in Braun/Hummel Labor Suit
WAL-MART STORES: "Dukes" Plaintiffs Filed Petition to Appeal
WAL-MART STORES: "Odle" Plaintiffs Denied Permission to Appeal
WAL-MART STORES: "Phipps" Plaintiffs Want to Appeal Dismissal
WAL-MART STORES: Filed Motion to Dismiss "Love" Gender Bias Suit
WAL-MART STORES: "Ladik" Plaintiffs Denied Permission to Appeal
WAL-MART STORES: Still Faces Securities Lawsuit in Arkansas
WALT DISNEY: Fails to Provide Consumer Reports, Suit Claims
WINDSTREAM KENTUCKY: "Bowers" Suit Settlement Gets Final Approval
Asbestos Litigation
ASBESTOS UPDATE: Specialty Products Creditors Get OK to Sue Parent
ASBESTOS UPDATE: Claims Bill Would Ax Fraud, Not Privacy
ASBESTOS UPDATE: Specialty Products Fine-Tunes Chapter 11 Plan
ASBESTOS UPDATE: Plaintiff Sought Production of Execs at Trial
ASBESTOS UPDATE: Fibro to be Removed From Jesuit Residence
ASBESTOS UPDATE: Saskatchewan Province Fibro Registry Mandatory
ASBESTOS UPDATE: Workers at Audubon School Begin Fibro Removal
ASBESTOS UPDATE: Rasche Hall Undergoing Fibro Abatement
ASBESTOS UPDATE: Fibro Scare in Quenbeyan as Salvos Dumped On
ASBESTOS UPDATE: Fibro Risk as LDF Board Wrongly Classified
ASBESTOS UPDATE: Fibro Found During Key Briscayne Bridge Repair
ASBESTOS UPDATE: Fired Immigrants Share Horrifying Work Stories
ASBESTOS UPDATE: Fibro Hot Spots Found in Central Christchurch
ASBESTOS UPDATE: Increasing Use of Deadly Dust in Asia
ASBESTOS UPDATE: Removal Contractor Found in Contempt of Court
ASBESTOS UPDATE: Politician With Cancer Sues Over Fibro
ASBESTOS UPDATE: Fibro Findings in Jersey Hotels "Staggering"
ASBESTOS UPDATE: Dumped Fibro Left at Side of Hog's Back
ASBESTOS UPDATE: Fibro Removed From Winnebago County Jail
ASBESTOS UPDATE: Coolidge to Reopen Dec. 2 After Fibro Removal
ASBESTOS UPDATE: Costs to Demolish Former School Uncertain
ASBESTOS UPDATE: Mesothelioma Death Payout for Widow
ASBESTOS UPDATE: Supervisors Will Fund Fibro Removal
ASBESTOS UPDATE: Berkshire Says Scripps Story "Inaccurate"
ASBESTOS UPDATE: Landlords Fix Boiler & Removed Fibro After Call
ASBESTOS UPDATE: Blacktown Reduces Fees for Fibro Disposal
ASBESTOS UPDATE: Sufferer Credits Barringo for Keeping Her Alive
ASBESTOS UPDATE: Deadly Dust Found in Children's Playground
ASBESTOS UPDATE: Toxic Dust Is Byproduct of Bogalusa Blight Fight
ASBESTOS UPDATE: Nurse Links Cancer to Deadly Dust
ASBESTOS UPDATE: Fibro Fire at Althorpe
ASBESTOS UPDATE: Landmark Fibro Payout for Dying Woman
ASBESTOS UPDATE: Danziger and De Llano Adds New Web Site Articles
ASBESTOS UPDATE: New Fibro Lawsuit Filed in St. Clair County
ASBESTOS UPDATE: NSW Group Supports Waste Disposal Initiative
ASBESTOS UPDATE: Fibro Discovery will Add to Court House Costs
ASBESTOS UPDATE: FACT Act Foes Speak Out
ASBESTOS UPDATE: Fibro Found in Winnebago County Jail
ASBESTOS UPDATE: Whiteside Landfill Might Be Opened for Fibro
ASBESTOS UPDATE: Toxic Dust Keeps Shared Trail Closed
ASBESTOS UPDATE: Ill. Court Affirms Ruling in "Bowles" Suit
ASBESTOS UPDATE: NY Court Rules in Colgate Insurance Suit
ASBESTOS UPDATE: Georgia-Pacific's Bid in "Dryfka" Suit Denied
ASBESTOS UPDATE: Labor Law Claim v. ConEdison in PI Suit Junked
ASBESTOS UPDATE: NY Court Grants Crane Co. New Trial in PI Suit
*********
9140-5621 QUEBEC: Recalls Certain Cheese Due to E. Coli
-------------------------------------------------------
Starting date: November 15, 2013
Type of communication: Recall
Alert sub-type: Notification
Subcategory: Microbiological - Other
Hazard classification: Class 2
Source of recall: Canadian Food Inspection Agency
Recalling firm: 9140-5621 Quebec Inc. (Fromagerie du
Presbytere)
Distribution: Quebec
Extent of the product
distribution: Retail
CFIA reference number: 8470
Affected products: 600 g. Fromagerie du Presbytere Brie Paysan -
Soft Surface Ripened Cheese
ALCOA INC: Seeks Cost Award in Former Employees' Suit in Tenn.
--------------------------------------------------------------
The trial court is now considering Alcoa Inc.'s request for an
award of costs in the suit Curtis v. Alcoa Inc., Civil Action No.
3:06cv448 (E.D. Tenn.), a class action filed by plaintiffs
representing retired former employees, according to the company's
Oct. 18, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Sept. 30, 2013.
In November 2006, in Curtis v. Alcoa Inc., Civil Action No.
3:06cv448 (E.D. Tenn.), a class action was filed by plaintiffs
representing approximately 13,000 retired former employees of
Alcoa or Reynolds Metals Company and spouses and dependents of
such retirees alleging violation of the Employee Retirement Income
Security Act (ERISA) and the Labor-Management Relations Act by
requiring plaintiffs, beginning January 1, 2007, to pay health
insurance premiums and increased co-payments and co-insurance for
certain medical procedures and prescription drugs.
Plaintiffs alleged these changes to their retiree health care
plans violated their rights to vested health care benefits.
Plaintiffs additionally alleged that Alcoa had breached its
fiduciary duty to plaintiffs under ERISA by misrepresenting to
them that their health benefits would never change. Plaintiffs
sought injunctive and declaratory relief, back payment of
benefits, and attorneys' fees. Alcoa had consented to treatment of
plaintiffs' claims as a class action.
During the fourth quarter of 2007, following briefing and
argument, the court ordered consolidation of the plaintiffs'
motion for preliminary injunction with trial, certified a
plaintiff class, and bifurcated and stayed the plaintiffs' breach
of fiduciary duty claims. Trial in the matter was held over eight
days commencing September 22, 2009 and ending on October 1, 2009
in federal court in Knoxville, TN before the Honorable Thomas
Phillips, U.S. District Court Judge.
On March 9, 2011, the court issued a judgment order dismissing
plaintiffs' lawsuit in its entirety with prejudice for the reasons
stated in its Findings of Fact and Conclusions of Law. On March
23, 2011, plaintiffs filed a motion for clarification and/or
amendment of the judgment order, which sought, among other things,
a declaration that plaintiffs' retiree benefits are vested subject
to an annual cap and an injunction preventing Alcoa, prior to
2017, from modifying the plan design to which plaintiffs are
subject or changing the premiums and deductibles that plaintiffs
must pay. Also on March 23, 2011, plaintiffs filed a motion for
award of attorneys' fees and expenses.
On June 11, 2012, the court issued its memorandum and order
denying plaintiffs' motion for clarification and/or amendment to
the original judgment order. On July 6, 2012, plaintiffs filed a
notice of appeal of the court's March 9, 2011 judgment. On July
12, 2012, the trial court stayed Alcoa's motion for assessment of
costs pending resolution of plaintiffs' appeal. The appeal was
docketed in the United States Court of Appeals for the Sixth
Circuit as case number 12-5801.
On August 29, 2012, the trial court dismissed plaintiffs' motion
for attorneys' fees without prejudice to refiling the motion
following the resolution of the appeal at the Sixth Circuit Court
of Appeals. On May 9, 2013, the Sixth Circuit Court of Appeals
issued an opinion affirming the trial court's denial of
plaintiffs' claims for lifetime, uncapped retiree healthcare
benefits. Plaintiffs filed a petition for rehearing on May 22,
2013 to which Alcoa filed a response on June 7, 2013.
On September 12, 2013, the Sixth Circuit Court of Appeals denied
plaintiffs' petition for rehearing. The trial court is now
considering Alcoa's request for an award of costs, which had been
stayed pending resolution of the appeal, and the plaintiffs'
request for attorneys' fees, which had been dismissed without
prejudice to refiling following resolution of the appeal.
AMECO PARADISIO: Recalls Polo Pyjamas
-------------------------------------
Starting date: November 19, 2013
Posting date: November 19, 2013
Type of communication: Consumer Product Recall
Subcategory: Clothing and Accessories
Source of recall: Health Canada
Issue: Flammability Hazard
Audience: General Public
Identification number: RA-36783
Affected products: Ameco Paradisio polo pyjamas
The recall involves Diana & Karine polo pyjama for girls. The
sleepwear is made of 100% cotton and can be identified by CA
4339284. It comes in different styles.
Polo pyjamas affected by this recall:
-- 2-3X Girls' 100% cotton 2-piece set with short sleeves and
kitten print with 59453H style;
-- 4-6X Girls' 100% cotton 2-piece set with short sleeves and
kitten print with 69453H print
Health Canada has determined that these products do not meet the
flammability requirements for children's sleepwear under Canadian
law.
Loose-fitting children's sleepwear can contact ignition sources
such as stove elements, candles, and matches more readily than
tight-fitting sleepwear. Once ignited, the sleepwear can burn
rapidly and cause severe burns to large areas of the child's body,
resulting in shock and sometimes death. Cotton is not permitted
in loose-fitting children's sleepwear.
Neither Health Canada nor Ameco Paradisio has received any reports
of incidents or injuries related to the use of this sleepwear.
Approximately 562 units of the polo pyjamas were sold in Canada.
The recalled products were manufactured in India and sold from
April 2013 to October 2013 exclusively at Hart stores throughout
Quebec.
Companies:
Manufacturer Sri Arunkarai Amman Apparels
Tirapur
India
Distributor Les modes Ameco Paradisio Apparel Inc.
Montreal
Quebec
Canada
Consumers should stop using the recalled sleepwear immediately and
return it to where it was purchased.
AMERICAN HOME: Denial of Sanders' Matrix Benefits Affirmed
----------------------------------------------------------
In IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION, CIVIL ACTION NO. 99-20593, NO. 2:16
MD 1203, (E.D. Penn.), Ruth A. Sanders, a class member under the
Diet Drug Nationwide Class Action Settlement Agreement with Wyeth,
seeks benefits from the AHP Settlement Trust. Based on the record
developed in the show cause process, the U.S. District Court for
the Eastern District of Pennsylvania must determine whether
claimant has demonstrated a reasonable medical basis to support
her claim for Matrix Compensation Benefits and, if so, whether she
has met her burden of proving that her claim was not based, in
whole or in part, on any intentional material misrepresentation of
fact.
District Judge Harvey Bartle concludes, based on a review of the
entire record, that there is no reasonable medical basis for Dr.
Brazil's representation that claimant had moderate mitral
regurgitation. "Thus, we need not determine whether there was, in
fact, any intentional material misrepresentation of fact in
connection with this claim," he says.
For this reason, Judge Bartle affirms the Trust's denial of the
claim of Ms. Sanders for Matrix Benefits.
This ruling relates to SHEILA BROWN, et al. v. AMERICAN HOME
PRODUCTS CORPORATION.
A copy of the District Court's November 1, 2013 Memorandum is
available at http://is.gd/sx7rJbfrom Leagle.com.
AUTOLIV INC: Faces OSS Automobile Parts Antitrust Litigation
------------------------------------------------------------
Autoliv, Inc., several of its subsidiaries and its competitors are
defendants in a total of 16 purported antitrust class action
lawsuits filed between July 2012 and July 2013, according to the
company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2013.
Thirteen of these lawsuits, brought by direct purchasers, auto
dealers and end-payors, have been consolidated in the Occupant
Safety Systems (OSS) segment of the Automobile Parts Antitrust
Litigation, a Multi-District Litigation (MDL) proceeding in the
United States District Court for the Eastern District of Michigan.
Based on current schedules, substantive discovery in the OSS
segment of the MDL, which includes Autoliv, is not likely to begin
before May 2014.
The other three lawsuits are pending in Canada (Sheridan Chevrolet
Cadillac Ltd. et al. v. Autoliv, Inc. et al., filed in the Ontario
Superior Court of Justice on January 18, 2013; M. Serge Asselin v.
Autoliv, Inc. et al., filed in the Superior Court of Quebec on
March 14, 2013; and Ewert v. Antoliv, Inc. et al., filed in the
Supreme Court of British Columbia on July 18, 2013).
The Canadian cases assert claims on behalf of putative classes of
auto dealers and end-payors. Substantive discovery in those cases
will likely be deferred pending a ruling in an unrelated case by
the Supreme Court of Canada on whether indirect purchasers can sue
for antitrust damages.
Plaintiffs in the U.S. and Canadian civil antitrust class actions
generally allege that the defendants have engaged in long-running
global conspiracies to fix the prices of occupant safety systems
or components thereof in violation of various antitrust laws and
unfair or deceptive trade practice statutes.
Plaintiffs seek to represent purported classes of direct
purchasers, auto dealers and end-payors (e.g. consumers) who
purchased occupant safety systems or components either directly
from a defendant or indirectly through purchases of new vehicles
containing such systems. Plaintiffs seek injunctive relief, treble
damages and attorneys' fees. The plaintiffs in these cases make
allegations that extend significantly beyond the specific
admissions of the plea. The Company denies these overly broad
allegations and intends to actively defend itself against the
same. While it is probable that the Company will incur losses as a
result of these antitrust cases, the duration or ultimate outcome
of these cases currently cannot be predicted or estimated and no
provision for a loss has been recorded as of September 30, 2013.
AUTOLIV INC: Pension Trust Amends N.Y. Securities Complaint
-----------------------------------------------------------
The plaintiff in a securities lawsuit pending in the United States
District Court for the Southern District of New York against
Autoliv, Inc. filed an amended complaint, according to the
company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2013.
On April 17, 2013, the Construction Laborers Pension Trust of
Greater St. Louis ("Plaintiff") filed a purported class action
securities lawsuit against Autoliv and two of its officers in the
United States District Court for the Southern District of New York
(Civil Action File No. 13-CIV-2546).
On October 21, 2013, Plaintiff filed an amended complaint in that
lawsuit, adding as a third individual defendant an employee of one
of the Company's subsidiaries. The amended complaint alleges
misrepresentations or failures to disclose material facts that
artificially inflated the Company's stock price in violation of
the federal securities laws, in particular Section 10(b) and
Section 20(a) of the Securities Exchange Act of 1934, as amended,
and failed to disclose prior to June 6, 2012 that employees had
engaged in certain price fixing activity in violation of the law
and that the Company's prior financial results allegedly had been
inflated as a result of the anti-competitive activity. Plaintiff
purports to bring this lawsuit on behalf of a class of purchasers
of common stock of the Company between October 26, 2010 and July
21, 2011. Plaintiff seeks to recover damages in an unspecified
amount. The Company and its two officers deny any wrongdoing,
believe the claims are baseless, and will defend accordingly.
BAJA INC: Recalls Mini Bikes Due to Fall, Crash Hazard
------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Baja Inc. d/b/a Baja Motorsports, of Anderson, S.C., announced a
voluntary recall of 23,000 Mini Bike. Consumers should stop using
this product unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
The front fork can separate from the wheel, posing fall and crash
hazards to riders.
The firm has received 13 reports of front forks separating from
the wheel. Minor injuries have been reported.
The recall involves Baja Motorsports MB200 gas-powered mini bikes
manufactured from August 2010 through August 2012. The recalled
mini bikes have a black frame with a black padded seat, a gas tank
and fenders that are black, red or yellow, side reflectors and a
headlight. A decal with the words "Baja" and "Warrior" and the
number 200 inside a circle with wings attached is on both sides of
the gas tank. "Baja 200cc" is on the engine cover on the right
side of the minibike. This mini bike may also be known as WR96,
WR200, Baja Heat, Baja Carbon and Mini Baja. The date of
manufacture is on the bottom right of the Vehicle Emissions
Control Information label in the MM/YY format. The label is
attached to the front side of the engine.
Pictures of the recalled products are available at:
http://is.gd/XS5I0m
The recalled products were manufactured in China and sold at
Northern Tool Equipment, Pep Boys and Tractor Supply Company from
February 2010 to September 2013 for about $650.
Consumers should immediately stop using the recalled mini bikes
and contact Baja Motorsports to schedule a free repair.
BP EXPLORATION: Bid to Intervene in Deepwater Horizon Suit Upheld
-----------------------------------------------------------------
Gulf Organized Fisheries in Solidarity & Hope, Inc. (GO FISH), a
non-profit coalition of advocacy organizations, seeks to intervene
in IN RE: DEEPWATER HORIZON for the sole purpose of objecting to a
single aspect of the Plaintiffs' class settlement agreement: the
manner in which a court-appointed neutral will potentially conduct
a "second-round distribution" of funds designated under the
settlement agreement for a Seafood Compensation Program. The
district court found explicitly, however, that GO FISH's objection
is not yet ripe. GO FISH filed an interlocutory appeal from the
district court's order denying its motion to intervene.
During this appeal, Plaintiffs have raised the issue of ripeness a
second time as a basis for affirming the district court's
decision. But GO FISH has never disputed the district court's
conclusion or Plaintiffs' arguments regarding the ripeness of GO
FISH's objection.
Accordingly, because GO FISH has waived any argument as to
ripeness, the intervention that GO FISH seeks would be futile, the
United States Court of Appeals for the Fifth Circuit has ruled.
The district court's decision is affirmed.
The Fifth Circuit's decision is without prejudice, however, to GO
FISH's hypothetical "right to seek appellate review of the final
order entered after the second Seafood Compensation Program
distribution has been completed," should GO FISH make a valid
motion to intervene at that time.
The case is IN RE: DEEPWATER HORIZON -- APPEALS OF THE ECONOMIC
AND PROPERTY DAMAGE CLASS ACTION SETTLEMENT.
LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON SECOUR
FISHERIES, INCORPORATED; FORT MORGAN REALTY, INCORPORATED; LFBP 1,
L.L.C., doing business as GW Fins; PANAMA CITY BEACH DOLPHIN TOURS
& MORE, L.L.C.; ZEKES CHARTER FLEET, L.L.C.; WILLIAM SELLERS;
KATHLEEN IRWIN; RONALD LUNDY; CORLISS GALLO; JOHN TESVICH; MICHAEL
GUIDRY, on behalf of themselves and all others similarly situated;
HENRY HUTTO; BRAD FRILOUX; JERRY J. KEE, Plaintiffs-Appellees,
v.
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION
COMPANY; BP PIPE LINE COMPANY, Defendants-Appellees,
v.
GULF ORGANIZED FISHERIES IN SOLIDARITY & HOPE, INCORPORATED,
Movant-Appellant, NO. 12-31155.
A copy of the Appeals Court's November 11, 2013 Opinion is
available at http://is.gd/iySNuwfrom Leagle.com.
CAISSIE GROCERY: Recalls Certain Caissie Meat Bakery Products
-------------------------------------------------------------
Starting date: November 15, 2013
Type of communication: Recall
Alert sub-type: Allergy Alert
Subcategory: Allergen - Milk
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: Caissie Grocery & Meat Ltd.
Distribution: New Brunswick
Extent of the product
distribution: Retail
CFIA reference number: 8467
Affected products:
Brand name UPC
---------- ---
800 g. Caissie Grocery & Meat Ltd. Date Squares 8 58495 00080 3
6 count Caissie Grocery & Meat Ltd. Sticky Buns 8 58495 00082 7
COSTAR GROUP: Show Cause Hearing in Suit Over Merger Set for 2014
-----------------------------------------------------------------
The California Superior Court has rescheduled a show cause hearing
in a suit against CoStar Group, Inc. for February 11, 2014,
according to the company's Oct. 24, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Sept. 30, 2013.
On February 16, 2012, the Company entered into a Credit Agreement
that provides for a $175.0 million term loan facility and a $50.0
million revolving credit facility, each with a term of five years.
In May 2011, LoopNet, the Board of Directors of LoopNet ("the
LoopNet Board") and/or the Company were named as defendants in
three purported class action lawsuits brought by alleged LoopNet
stockholders challenging LoopNet, Inc.'s proposed merger with the
Company. The stockholder actions alleged, among other things, that
(i) each member of the LoopNet Board breached his fiduciary duties
to LoopNet and its stockholders in authorizing the sale of LoopNet
to the Company, (ii) the merger does not maximize value to LoopNet
stockholders, (iii) LoopNet and the Company have made incomplete
or materially misleading disclosures about the proposed
transaction and (iv) LoopNet and the Company aided and abetted the
breaches of fiduciary duty allegedly committed by the members of
the LoopNet Board.
The stockholder actions sought class action certification and
equitable relief, including an injunction against consummation of
the merger. The parties have stipulated to the consolidation of
the actions, and to permit the filing of a consolidated complaint.
In June 2011, counsel for the parties entered into a memorandum of
understanding in which they agreed on the terms of a settlement of
this litigation, which could result in a loss to the Company of
approximately $200,000,000.
On March 20, 2013, the California Superior Court declined to grant
preliminary approval to the proposed settlement and issued an
order scheduling a hearing on June 11, 2013 to show good cause why
the case should not be dismissed. Shortly before the hearing
plaintiffs filed a third supplemental submission in support of
their motion for preliminary approval of the proposed settlement,
and the Court has rescheduled the show cause hearing for February
11, 2014.
COSTCO #251: Recalls Certain Kirkland Bakery Products
-----------------------------------------------------
Starting date: November 14, 2013
Type of communication: Recall
Alert sub-type: Notification
Subcategory: Extraneous Material
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: Costco #251 (Calgary South)
Distribution: Alberta
Extent of the product
distribution: Retail
CFIA reference number: 8448
Affected products by Kirkland Signature:
-- 1.075 kg Granola which was packed On 13/NO/01, 13/NO/02,
13/NO/03, 13/NO/04;
-- 1.050 kg Banana Nut Loaf which was packed On 13/NO/01,
13/NO/02, 13/NO/03, 13/NO/04;
-- 1.85 kg 12" Pumpkin Pie which was packed On 13/NO/01,
13/NO/02, 13/NO/03, 13/NO/04;
-- Mix and Match Muffins 2 x 6 Count Packed On 13/NO/02,
13/NO/03, 13/NO/04;
-- 4.310 kg White Buttercream Cake with Best Before 13/NO/06,
13/NO/07, 13/NO/08, 13/NO/09; and
-- 4.310 kg. Chocolate Buttercream Cake with Best Before
13/NO/06, 13/NO/07, 13/NO/08, 13/NO/09
COSTCO WHOLESALE: Court Dismisses Second Amended "Maple" Case
-------------------------------------------------------------
Chief District Judge Rosanna Malouf Peterson granted defendants'
motion to dismiss plaintiff's second amended complaint in the case
captioned HAROLD MAPLE, individually and on behalf of all others
similarly situated, Plaintiff, v. COSTCO WHOLESALE CORP., et al.,
Defendants, NO. CV-12-5166-RMP, (E.D. Wa.)
This is a putative class action arising from allegedly unfair or
deceptive statements found on the label of a product known as
VitaRain Tropical Mango Vitamin Enhanced Water Beverage bottled by
Niagara Bottling and sold by Costco. The putative class is defined
as all Washington residents who purchased the VitaRain product
over the four years preceding the filing of the lawsuit.
The Court concluded that Plaintiff has not adequately pled
causation under the Washington Consumer Protection Act.
The Second Amended Complaint is dismissed without leave to amend
and without prejudice, said Judge Malouf.
A copy of the District Court's November 1, 2013 Order is available
at http://is.gd/QDc4jffrom Leagle.com.
CROUSE HEALTH: "Meyer" Suit Settlement Gets Final Court Approval
----------------------------------------------------------------
District Judge David N. Hurd granted final approval of a class and
collective action settlement in the case captioned MARIANNE
MEYERS; on behalf of herself and all other employees similarly
situated, Plaintiff, v. CROUSE HEALTH SYSTEM, INC.; CROUSE HEALTH
HOSPITAL, INC.; PAUL KRONENBERG, MD; JOHN BERGEMANN; and CROUSE
HOSPITAL 401K RETIREMENT PLAN, Defendants, NO. 5:08-CV-1221, (N.D.
N.Y.).
The Court confirmed as final its finding that Named Plaintiff
Marianne Meyers is an adequate class representative for the
Settlement Classes, and confirmed as final its appointment of her
as the class representative of the Settlement Classes.
The Court confirmed as final its finding that Patrick J. Solomon,
Esq. and Guy A. Talia, Esq. of the law firm of Thomas & Solomon,
LLP are adequate to serve as Class Counsel for the Settlement
Classes, and confirmed as final its appointment of them as Class
Counsel for the Settlement Classes.
The Court held that the Settlement Agreement's provisions for the
funding of the settlement Escrow Account and for the distribution
of funds from that account, including, without limitation, the
Settlement Agreement's provisions for the calculation and payment
of individual awards to Claimants are fair, reasonable, and
adequate.
The Court ruled that the Administrative Costs in the amount of
$58,210.47 are reasonable and approved payment to the
Administrator of this Administrative Costs from the settlement
Escrow Account as specified in the Settlement Agreement following
the Effective Date of the Agreement.
A copy of the District Court's November 1, 2013 Order is available
at http://is.gd/YMZ5R8from Leagle.com.
Attorneys for Plaintiff:
Patrick J. Solomon, Esq.
Guy A. Talia, Esq.
Thomas & Solomon LLP
693 East Avenue
Rochester, New York 14607
Telephone: (585) 272-0540
Facsimile: (585) 272-0574
Attorneys for Defendants:
Louis Orbach, Esq.,
BOND, SCHOENECK & KING, PLLC
One Lincoln Center
110 West Fayette Street
Syracuse, NY 13202-1355
Telephone: (315) 218-8633
Facsimile: (315) 218-8100
FACEBOOK INC: Supreme Court Won't Touch $9.5MM Beacon Settlement
----------------------------------------------------------------
Writing for Courthouse News Service, Barbara Leonard reports that
a settlement over Facebook's advertising program Beacon does not
present an ideal vehicle to consider the fundamental concerns
associated with cy pres awards in class actions, Supreme Court
Chief Justice John Roberts said Monday, November 4, 2013.
Launched in 2007, Beacon aimed to let Facebook users tell their
friends what else they were doing on the Internet, such as
shopping on Overstock.com or booking trips through Hotwire. The
program, which could be blocked only with affirmative consent from
a user, eventually collapsed under the weight of privacy concerns
and a class action.
Some 3.6 million users belong to the class that settled with
Facebook for $9.5 million in 2010. Of that amount, $3 million
would to class counsel, $10,000 would go to lead plaintiff Sean
Lean, and the other named representatives would collect between
$1,000 and $5,000 each.
In the larger cy pres portion of the agreement, Facebook agreed to
support online privacy initiatives with the remaining $6.5 million
by donating it to the Digital Trust Foundation (DTF).
The settlement named Timothy Sparapani, Facebook's public policy
director and former counsel for the American Civil Liberties
Union, to the charity's board of directors. It also required
Facebook to permanently shelve the offending program.
U.S. District Judge Richard Seeborg approved the settlement in San
Francisco, but Megan Marek and three other plaintiffs objected to
the terms and took the issue to the 9th Circuit.
A divided three-judge panel affirmed last year, rejecting claims
that $9.5 million is not enough and that Sparapani's place on the
charity's board represents a conflict.
When the court voted against holding an en banc rehearing of the
case, six judges joined a stinging dissent that warned about the
dangerous precedent Facebook's settlement could establish,
subjecting little scrutiny to cy pres awards that have few
connections to the underlying issues of the case.
The objectors petitioned the Supreme Court for a petition of
certiorari but were shot down Monday, November 4, 2013.
Chief Justice John Roberts penned a brief explanation to accompany
the order.
"Granting review of this case might not have afforded the court an
opportunity to address more fundamental concerns surrounding the
use of such remedies in class action litigation, including when,
if ever, such relief should be considered; how to assess its
fairness as a general matter; whether new entities may be
established as part of such relief; if not, how existing entities
should be selected; what the respective roles of the judge and
parties are in shaping a cy pres remedy; how closely the goals of
any enlisted organization must correspond to the interests of the
class; and so on," Roberts wrote. "This court has not previously
addressed any of these issues. Cy pres remedies, however, are a
growing feature of class action settlements. In a suitable case,
this court may need to clarify the limits on the use of such
remedies."
Megan Marek is represented by:
David B. Rivkin Jr., Esq.
Andrew M. Grossman, Esq.
BAKERHOSTETLER
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304
Telephone: (202) 861-1500
Facsimile: (202) 861-1783
E-mail: drivkin@bakerlaw.com
agrossman@bakerlaw.com
- and -
John W. Davis, Esq.
LAW OFFICE OF JOHN W. DAVIS
501 W. Broadway, Suite 800
San Diego, CA 92101
Telephone: (619) 400-4870
Facsimile: (619) 342-7170
- and -
Steven F. Helfand, Esq.
HELFAND LAW OFFICES
582 Market St., Suite 1400A
San Francisco, CA 94104
Telephone: (415) 397-0007
Facsimile: (415) 397-0009
E-mail: steven@stevenhelfand.com
The settlement class is represented by:
Scott Adam Kamber, Esq.
KAMBERLAW, LLC
100 Wall Street 23rd floor
New York, NY 10005
Telephone: (212) 920-3072
Facsimile: (212) 202-6364
E-mail: skamber@kamberlaw.com
Facebook Inc. is represented by:
Kristin Linsley Myles, Esq.
Rosemarie T. Ring, Esq.
Jonathan H. Blavin, Esq.
Michael J. Mongan, Esq.
MUNGER TOLLES & OLSON LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Telephone: (415) 512-4000
E-mail: Kristin.Myles@mto.com
Rose.Ring@mto.com
Jonathan.Blavin@mto.com
Michael.Mongan@mto.com
- and -
Michael G. Rhodes, Esq.
Matthew D. Brown, Esq.
Lori R. Mason, Esq.
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone: (415) 693-2000
Facsimile: (415) 693-2222
E-mail: rhodesmg@cooley.com
brownmd@cooley.com
lmason@cooley.com
The case is Megan Marek v. Sean Lane, et al., Case No. 13-00136,
in the United States Supreme Court.
FORD MOTOR: Sued Over Improper Deductions When Replacing Cars
-------------------------------------------------------------
Rex Potter, individually, and on behalf of a class of similarly
situated individuals v. Ford Motor Company, Case No. 3:13-cv-
05095-SC (N.D. Cal., October 31, 2013) accuses Ford of taking
improper deductions when repurchasing or replacing defective Ford
cars.
The Plaintiff is represented by:
Payam Shahian, Esq.
Karen E. Nakon, Esq.
STRATEGIC LEGAL PRACTICES, APC
1875 Century Park East, Suite 700
Los Angeles, CA 90067
Telephone: (310) 277-1040
Facsimile: (310) 943-3838
E-mail: pshahian@slpattorney.com
knakon@slpattorney.com
- and -
Dara Tabesh, Esq.
ECOTECH LAW GROUP, P.C.
333 First Street, Suite C
San Francisco, CA 94105
Telephone: (415)230-5376
Facsimile: (415)651-8639
E-mail: dara.tabesh@ecotechlaw.com
INTERNAP NETWORK: Final Approval Hearing of Securities Suit Set
---------------------------------------------------------------
A hearing to determine whether the court should issue an order
finally approving a proposed settlement of a securities suit
against Internap Network Services Corporation has been scheduled
for December 4, 2013, according to the company's Oct. 24, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Sept. 30, 2013.
On November 12, 2008, a putative securities fraud class action
lawsuit was filed against the company and the company's former
chief executive officer in the United States District Court for
the Northern District of Georgia, captioned Catherine Anastasio
and Stephen Anastasio v. Internap Network Services Corp. and James
P. DeBlasio, Civil Action No. 1:08-CV-3462-JOF. On August 5, 2013,
the parties entered a Stipulation and Agreement of Settlement.
On August 21, 2013, the court issued an order granting preliminary
approval of the settlement. A hearing to determine whether the
court should issue an order finally approving the proposed
settlement has been scheduled for December 4, 2013.
As part of the settlement, the insurance carrier will pay $9.5
million to stockholders in the class. The settlement requires no
direct payment by us. During the three months ended September 30,
2013, the company recorded $9.5 million as litigation expense, net
of $9.5 million insurance recovery, in "Other, net" in the
consolidated statement of operations and comprehensive loss,
resulting in no impact to the company's financial condition or
results of operations. The company included the related
litigation payable in "Accrued liabilities" and the insurance
recovery receivable in "Prepaid expenses and other assets" in the
consolidated balance sheet as of September 30, 2013.
INTUIT INC: Settles Tech Labor Conspiracy Case for $20 Million
--------------------------------------------------------------
Elizabeth Warmerdam at Courthouse News Service reports that
Intuit, Lucasfilm and Pixar can pay $20 million to settle claims
that they hurt competition by agreeing not to recruit each other's
employees, a federal judge ruled.
Walt Disney subsidiaries LucasFilm and Pixar will pay $9 million,
and Intuit will pay $11 million under the settlement agreement.
Four other high-profile companies -- Adobe, Apple, Google and
Intel -- did not reach a settlement and still face related claims
in the suit.
The employment and recruitment practices of the seven companies
were investigated by the U.S. Department of Justice in 2009 and
2010. The DOJ filed a suit against the companies in 2010,
alleging that the companies had agreed to restrict the mobility of
their skilled employees.
Without admitting any wrongdoing, the companies settled with the
government and agreed not to enforce any agreement that refrained
the companies from soliciting, cold calling or competing for
employees from the other companies.
Multiple civil complaints were then filed, however, and a federal
judge eventually consolidated the cases in the Northern District
of California.
The former employees allege that the seven companies engaged in an
"overarching conspiracy" to eliminate competition among the
companies for skilled labor. The conspiracy called for the
companies to abstain from placing "cold calls" and from actively
soliciting or recruiting each other's employees.
Cold calling -- in which one company communicates directly with
another company's employee who has not applied for a job -- is a
key competitive tool used to recruit employees with advanced
skills, and increases the total compensation and mobility for
those employees, according to the complaint.
The seven companies allegedly agreed not to do any such cold
calling with the intent to keep the salaries low for high-tech
employees, the employees said.
In April 2013, U.S. District Judge Lucy Koh declined to certify a
class of approximately 60,000 former employees in the case. She
found that the employees had failed to demonstrate that common
issues predominated over individual issues. The employees have
since filed a supplemental motion for class certification, which
is now pending.
Koh did provide conditional class certification, however, for the
purposes of the proposed settlement with Intuit, Lucasfilm and
Pixar. The class consists of employees working in the technical,
creative, or research and development fields who were employed on
a salaried basis by the seven companies from varying dates up
until December 2009.
Koh also found that the $20 million settlement by the three
companies to be fair and reasonable.
The amount "is substantial, particularly in light of the fact that
the settling defendants collectively account for less than 8
percent of class members, and together account for approximately 5
percent of total class compensation," the judge wrote.
Under the settlement, the other nonsettling companies -- Apple,
Adobe, Google and Intel -- will remain "jointly and severally
liable for all damages caused by the conspiracy, including damages
from the settling defendants' conduct."
The Plaintiffs are represented by:
Anne Brackett Shaver, Esq.
Brendan Patrick Glackin, Esq.
Dean Michael Harvey, Esq.
Eric B. Fastiff, Esq.
Joseph Peter Forderer, Esq.
Kelly M. Dermody, Esq.
Lisa Janine Cisneros, Esq.
Richard Martin Heimann, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: ashaver@lchb.com
bglackin@lchb.com
dharvey@lchb.com
efastiff@lchb.com
jforderer@lchb.com
kdermody@lchb.com
lcisneros@lchb.com
rheimann@lchb.com
- and -
Eric L. Cramer, Esq.
Sarah Rebecca Schalman-Bergen, Esq.
Shanon Jude Carson, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: ecramer@bm.net
sschalman-bergen@bm.net
scarson@bm.net
- and -
James Gerard Beebe Dallal, Esq.
Kevin Edward Rayhill, Esq.
Lisa Jennifer Leebove, Esq.
JOSEPH SAVERI LAW FIRM
255 California Street, Suite 450
San Francisco, CA 94111
Telephone: (415) 500-6800
E-mail: jdallal@saverilawfirm.com
krayhill@saverilawfirm.com
lleebove@saverilawfirm.com
- and -
Joseph R. Saveri, Esq.
JOSEPH SAVERI LAW FIRM
505 Montgomery Street, Suite 625
San Francisco, CA 94111
Telephone: (415) 500-6800
Facsimile: (415) 500-6803
E-mail: jsaveri@saverilawfirm.com
- and -
Joshua P. Davis, Esq.
UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW
2130 Fulton Street
San Francisco, CA 94117
Telephone: (415) 422-6223
E-mail: davisj@usfca.edu
- and -
Linda Phyllis Nussbaum, Esq.
Peter A. Barile, III, Esq.
GRANT & EISENHOFER P.A.
485 Lexington Avenue, 29th Floor
New York, NY 10017
Telephone: (646) 722-8500
Facsimile: (646) 722-8501
E-mail: lnussbaum@gelaw.com
pbarile@gelaw.com
- and -
Anna Tryon Pletcher, Esq.
DEPARTMENT OF JUSTICE
450 Golden Gate Avenue
Box 36046
Room 10-0101
San Francisco, CA 94102
Telephone: (415) 436-6727
Facsimile: (415) 436-6687
E-mail: anna.pletcher@usdoj.gov
The Defendants are represented by:
Robert Addy Van Nest, Esq.
Daniel Edward Purcell, Esq.
Eugene Morris Paige, Esq.
Justina Kahn Sessions, Esq.
Cody Shawn Harris, Esq.
Paula Lenore Blizzard, Esq.
KEKER & VAN NEST LLP
633 Battery Street
San Francisco, CA 94111-1809
Telephone: (415) 391-5400
Facsimile: (415) 397-7188
E-mail: rvannest@kvn.com
dpurcell@kvn.com
EMP@kvn.com
jsessions@kvn.com
charris@kvn.com
plb@kvn.com
- and -
Craig Andrew Waldman, Esq.
David Craig Kiernan, Esq.
Robert Allan Mittelstaedt, Esq.
Lin W. Kahn, Esq.
Craig Ellsworth Stewart, Esq.
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone: (415) 626-3939
Facsimile: (415) 875-5700
E-mail: cwaldman@jonesday.com
dkiernan@jonesday.com
ramittelstaedt@jonesday.com
linkahn@jonesday.com
cestewart@jonesday.com
- and -
George A. Riley, Esq.
Amanda R. Conley, Esq.
Christina Joanne Brown, Esq.
George Riley, Esq.
Michael Frederick Tubach, Esq.
O'MELVENY & MYERS LLP
2 Embarcadero Center, 28th Floor
San Francisco, CA 94111
Telephone: (415) 984-8741
Facsimile: (415) 984-8701
E-mail: griley@omm.com
aconley@omm.com
cjbrown@omm.com
griley@omm.com
mtubach@omm.com
- and -
Anne M. Selin, Esq.
Donald M. Falk, Esq.
Edward D. Johnson, Esq.
Eric Evans, Esq.
Lee H. Rubin, Esq.
MAYER BROWN LLP
Two Palo Alto Square, Suite 300
3000 El Camino Real
Palo Alto, CA 94306
Telephone: (650) 331-2000
Facsimile: (650) 331-2060
E-mail: aselin@mayerbrown.com
dfalk@mayerbrown.com
wjohnson@mayerbrown.com
eevans@mayerbrown.com
lrubin@mayerbrown.com
- and -
Gregory P. Stone, Esq.
Bradley S. Phillips, Esq.
Gregory M. Sergi, Esq.
John P. Mittelbach
MUNGER TOLLES & OLSON LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
Telephone: (213) 683-9100
Facsimile: (213) 687-3702
E-mail: gregory.stone@mto.com
phillipsbs@mto.com
Gregory.Sergi@mto.com
john.mittelbach@mto.com
- and -
Catherine Tara Zeng, Esq.
JONES DAY
1755 Embarcadero Rd
Palo Alto, CA 94303
Telephone: (650) 739-3939
Facsimile: (650) 739-3900
E-mail: czeng@jonesday.com
- and -
Chinue Turner Richardson, Esq.
Deborah A. Garza, Esq.
Thomas A. Isaacson, Esq.
COVINGTON & BURLING LLP
1201 Pennsylvania Ave NW
Washington, DC 20004
Telephone: (202) 662-5766
Facsimile: (202) 778-5766
E-mail: crichardson@cov.com
dgarza@cov.com
tisaacson@cov.com
- and -
Emily Johnson Henn, Esq.
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065
Telephone: (650) 632-4700
E-mail: ehenn@cov.com
- and -
Thomas A. Isaacson, Esq.
HOWREY LLP
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004
Telephone: (202) 783-0800
Facsimile: (202) 383-6610
E-mail: tisaacson@cov.com
The case is In re: High-Tech Employee Antitrust Litigation, Case
No. 5:11-cv-02509-LHK, in the U.S. District Court for the Northern
District of California (San Jose).
KCBX TERMINALS: Chicago Neighborhoods Choking in Toxic Dust
-----------------------------------------------------------
Jack Bouboushian at Courthouse News Service reports that clouds of
windblown toxic dust from enormous piles of petroleum waste
pollute a South Side neighborhood, Chicago residents claim in a
class action.
Lead plaintiff Lilly Martin sued KCBX Terminals Co., George J.
Beemsterboer Corp., KM Railways, Transload Realty, DTE Chicago
Fuels Terminal, Calumet Transload Railroad, and Koch Carbon, in
Cook County Chancery Court.
"This complaint arises out of the presence of vast quantities of
coal and petroleum coke, or 'petcoke,' a highly dangerous,
hazardous contaminant, in the Chicago southeast side residential
South Deering and East Side neighborhoods," the lawsuit states.
"These quantities of coal and petcoke are maintained in sprawling,
uncovered piles up to five stories high at three nearly adjacent
storage and transfer terminals along the Calumet River currently
or formerly owned, operated, controlled, and/or maintained by
defendants."
Petcoke, a byproduct of petroleum refining, contains sulfur,
nickel and vanadium, a carcinogen.
South Deering, on Chicago's far South Side, is an economically
depressed, formerly industrial area, the largest of Chicago 77
official community areas. Ninety-five percent of its population
is black or Latino, according to 2010 Census data.
"Every day, winds hit defendants' uncovered piles of coal and
petcoke, and black clouds of coal and petcoke dust -- called
'fugitive dust' -- are blown into the air and subsequently fall on
homes, businesses, yards, streets, alleys, parkways, and other
types of property neighboring defendants' terminals," the
complaint states.
According to the Material Safety Data Sheet for petcoke, anyone
who inhales petcoke dust should immediately leave the vicinity to
breathe fresh air.
"However, the plaintiffs and class members cannot escape the
petcoke dust and access fresh air in their neighborhood, as the
dust is constantly blowing in the air all throughout the
neighborhood," the complaint states.
"Despite repeated complaints by affected residents, defendants
have refused and continue to refuse to take adequate measures to
stop or mitigate the migration of hazardous coal and petcoke dust
to the surrounding neighborhoods. The contamination of those
neighborhoods is ongoing."
The petcoke is produced by BP at its Whiting, Ind. refinery and
shipped to defendants' terminals for storage, according to the
complaint. BP is building a new refinery to refine heavier oil
from the tar sands oil fields of Alberta, Canada.
The upgrade will drastically increase BP's production of petcoke -
- by 700,000 tons, the plaintiffs claim -- and increase the
petcoke stored in their neighborhood.
While other facilities, such as the Port of Los Angeles, enclose
piles of petcoke due to the hazardous dust it produces,
"defendants simply spray the piles of coal and petcoke with wet
suppression equipment (i.e. sprinklers spraying the piles with
water and possibly a surfactant solution)," the complaint states.
Plaintiffs seek an injunction and punitive damages for nuisance,
trespass and negligence.
The Plaintiffs are represented by:
Thomas A. Zimmerman Jr., Esq.
Adam M. Tamburelli, Esq.
Frank J. Stretz, Esq.
ZIMMERMAN LAW OFFICES PC
77 W Washington #1220
Chicago, IL 60602
Telephone: (312) 440-0020
The case is Martin Lilly, et al. v. KCBX Terminals Company, et
al., Case No. 2013-CH-24614, in the Illinois Circuit Court for
Cook County.
LES SALAISONS: Recalls Smoked Meat Due to Listeria Monocytogenes
----------------------------------------------------------------
Starting date: November 15, 2013
Type of communication: Recall
Alert sub-type: Updated Food Recall Warning
Subcategory: Microbiological - Listeria
Hazard classification: Class 1
Source of recall: Canadian Food Inspection Agency
Recalling firm: Les Salaisons Desco Inc.
Distribution: Ontario, Nova Scotia, Quebec, Possibly
National
Extent of the product
distribution: Retail
CFIA reference number: 8419
Affected products:
500 g (4 x 125 g) Schwartz's At Home Smoked Meat with UPC 6 27533
96123 5 and 2013DE13 code
The Food Recall Warning issued on November 13, 2013 has been
updated to include additional distribution information. This
additional information was identified during the Canadian Food
Inspection Agency's (CFIA) food safety investigation.
Les Salaisons Desco Inc. is recalling Schwartz's At Home brand
Smoked Meat from the marketplace due to possible Listeria
monocytogenes contamination. Consumers should not consume the
recalled product described below.
The following product has been sold in Ontario, Quebec and Nova
Scotia, but may also have been sold in other provinces.
Check to see if you have the recalled product in your home.
Recalled product should be thrown out or returned to the store
where it was purchased.
Food contaminated with Listeria monocytogenes may not look or
smell spoiled but can still make you sick. Symptoms can include
vomiting, nausea, persistent fever, muscle aches, severe headache
and neck stiffness. Pregnant women, the elderly and people with
weakened immune systems are particularly at risk. Although
infected pregnant women may experience only mild, flu-like
symptoms, the infection can lead to premature delivery, infection
of the newborn or even stillbirth. In severe cases of illness,
people may die.
LG ELECTRONICS: Faces Antitrust Suit Over Optical Disk Drives
-------------------------------------------------------------
Ingram Micro Inc. and Synnex Corporation commenced an antitrust
class action lawsuit against LG Electronics, Hitachi-LG Data
Storage, Koninklijke Philips, and others, to recover for alleged
injury to their business and property arising from billions of
dollars of purchases of optical disk drives at artificially
inflated prices over several years.
The Plaintiffs are represented by:
Daniel A. Sasse, Esq.
CROWELL & MORING LLP
3 Park Plaza, 20th Floor
Irvine, CA 92614
Telephone: (949) 263-8400
Facsimile: (949) 263-8414
E-mail: dsasse@crowell.com
The case is Ingram Micro; Synnex Corp. v. LG Electronics, et al.,
Case No. sacv-13-01684-JAK, in the U.S. District Court for the
Central District of California.
LINDEN RESEARCH: Settles "Second Life" Users Suit With Real Cash
----------------------------------------------------------------
Nick McCann, writing for Courthouse News Service, reports that the
creators of the virtual world "Second Life" will pay both real and
virtual money to settle a class action from gamers, a federal
judge ruled.
"Second Life" is a virtual world in which users create characters
that run businesses and buy and sell virtual items using virtual
money called "lindens."
Users pay Linden Research monthly "tier fees," similar to property
taxes. Linden says the fees are used to maintain the server.
Carl Evans and other "Second Life" users led federal class action
in 2010 against Linden and its former CEO Phillip Rosedale,
claiming that the company lied about the nature of "ownership"
within the virtual world.
They said Linden "made a calculated business decision to depart
from the industry standard of denying that participants had any
rights to virtual items, land and/or goods."
To set itself apart from online role-playing games, Linden
"globally represented to participants . . . that their ownership
rights and intellectual property rights to the virtual items, land
and goods held in the participants' accounts would be preserved
and recognized," according to the second amended complaint in San
Francisco.
The plaintiffs say the "Second Life" home page used to state:
"Second Life is an online, 3D virtual world, imagined, created and
owned by its residents." But sometime after 2007, Linden
allegedly removed the word "owned" from the website, after a
dispute over confiscated virtual property. Then in 2010, Linden
modified its Terms of Service to say, "virtual land is in-world
space that we license."
The plaintiffs sought to certify two classes of users, and a
federal judge approved a class of "Second Life" users whose
"virtual items, virtual land, and/or currency in lindens and/or
U.S dollars have been deliberately and intentionally converted by
defendant Linden's suspension or closure of their Second Life
accounts."
In March 2013, the parties reached a settlement agreement, which
was executed in May. The agreement stipulates that Linden will
return money to the class members' PayPal accounts, as well as "up
to 100%" of the amount of Linden dollars.
As of August, the amount of Linden dollars was around $43,000,
which values at around $172,000 U.S. dollars. Linden also agreed
to pay two Linden dollars per square meter of virtual land owned
by the class members, which is worth around $2,200. The company
will also refund the $1,000 setup fee for a user who owned a
virtual island.
After finding the revised settlement agreement was fair,
reasonable and adequate, U.S. Magistrate Judge Donna Ryu granted
preliminary approval on Oct. 25.
A hearing on the final approval will be held on Feb. 27, 2014.
Plaintiff Naomi Hemingway had moved for the settlement approval.
The Plaintiffs are represented by:
Jason A. Archinaco, Esq.
Robert A. Bracken, Esq.
ARCHINACO/BRACKEN LLC
The Pennsylvanian, Suite C6
1100 Liberty Avenue
Pittsburgh, PA 15222
Telephone: (412) 434-0555
E-mail: jarchinaco@ablitigation.com
- and -
Michael James Aschenbrener, Esq.
ASCHENBRENER LAW P.C.
795 Folsom Street, First Floor
San Francisco, CA 94107
Telephone: (415) 813-6245
Facsimile: (415) 813-6246
E-mail: mja@aschenbrenerlaw.com
- and -
Paul William Chandler, Esq.
6080 Center Drive, Sixth Floor
Los Angeles, CA 90045
Telephone: (310) 242-5850
Facsimile: (310) 929-7740
E-mail: chandlerlaw@aol.com
The Defendants are represented by:
Jesse Geraci, Esq.
Johanna Calabria, Esq.
Michael Henry Page, Esq.
DURIE TANGRI LLP
217 Leidesdorff St.
San Francisco, CA 94111
Telephone: (415) 362-6666
Facsimile: (415) 236-6300
E-mail: jgeraci@durietangri.com
jcalabria@durietangri.com
mpage@durietangri.com
The case is Evans, et al. v. LINDEN RESEARCH, INC., et al., Case
No. 4:11-cv-01078-DMR, in the U.S. District Court for the Northern
District of California (Oakland).
LOBLAW COMPANIES: Recalls Suraj Garlic Powder Due to Salmonella
---------------------------------------------------------------
Starting date: November 19, 2013
Type of communication: Recall
Alert sub-type: Food Recall Warning
Subcategory: Microbiological - Salmonella
Hazard classification: Class 2
Source of recall: Canadian Food Inspection Agency
Recalling firm: Loblaw Companies Limited
Distribution: National
Extent of the product
distribution: Retail
Affected products: 400 g. Suraj Garlic Powder with UPC 0 57197
37238 0
Loblaw Companies Limited is recalling Suraj brand Garlic Powder
from the marketplace due to possible Salmonella contamination.
Consumers should not consume the recalled product described below.
Check to see if you have recalled product in your home. Recalled
product should be thrown out or returned to the store where it was
purchased.
Food contaminated with Salmonella may not look or smell spoiled
but can still make you sick. Young children, pregnant women, the
elderly and people with weakened immune systems may contract
serious and sometimes deadly infections. Healthy people may
experience short-term symptoms such as fever, headache, vomiting,
nausea, abdominal cramps and diarrhea. Long-term complications may
include severe arthritis.
MERCEDES-BENZ USA: Heated Seats Burn Occupants' Butts, Suit Says
----------------------------------------------------------------
Ernest DiGiulio, individually and on behalf of others similarly
situated v. Mercedes-Benz USA, LLC; Mercedes-Benz U.S.
International, Inc.; Daimler, AG; Daimler Chrysler, AG; Daimler
Benz, AG; Mercedes Benz, AG; Gentherm Incorporated; Amerigon
Incorporated; Amerigon Europe GmbH; Gentherm Europe GmbH; and
W.E.T. Automotive Systems AG, Case No. 2:13-cv-06349-PD (E.D. Pa.,
October 29, 2013) alleges that at the time of sale or lease, the
Class Vehicle contained a defect in design, material,
manufacturing or workmanship, which:
(1) permits the temperature of the heated seats to reach
111 degrees Fahrenheit and above; and
(2) permits the heating element to burn through the seat pad
and seat cover of the heated seat causing burn injuries to
the occupant of the heated seat.
Daimler AG is a German corporation headquartered in Stuttgart,
Germany. Daimler AG was formerly known and did business as
defendants, Daimler Chrysler, AG, Daimler Benz, AG and Mercedes
Benz, AG. Mercedes-Benz USA, LLC is a 100% owned subsidiary of
Daimler AG, which distributes all of the Class Vehicles sold by
Daimler AG in the United States of America through its dealer
network. Mercedes-Benz USA, LLC is a New Jersey limited liability
company headquartered in Montvale, New Jersey. Mercedes Benz U.S.
International, Inc., a 100% owned subsidiary of Daimler AG, is an
Alabama corporation headquartered in Vance, Alabama.
W.E.T. Automotive Systems, AG is a German corporation
headquartered in Odelzhausen, Germany. W.E.T. Automotive is a 99%
owned subsidiary of Gentherm Europe, GmbH, headquartered in Ulmer
StraBe 160b, Germany, which itself is a 100% owned subsidiary of
Gentherm Incorporated. Gentherm Europe, GmbH was formerly known
and did business as defendant, Amerigon Europe, GmbH.
Gentherm Incorporated is a Michigan corporation headquartered in
Northville, Michigan. Gentherm Incorporated was formerly known
and did business as defendant, Amerigon Incorporated.
The Plaintiff is represented by:
Clifford E. Haines, Esq.
HAINES & ASSOCIATES
1835 Market Street, Suite 2420
Philadelphia, PA 19103
Telephone: (215) 246-2200
Facsimile: (215) 246-2211
E-mail: chaines@haines-law.com
- and -
Richard S. Hannye, Esq.
HANNYE, LLC
100 Presidential Boulevard, Suite 124
Bala Cynwyd, PA 19004
Telephone: (610) 668-2050
Facsimile: (610) 668-2050
E-mail: hannye@hannye.pro
MIDEA INTERNATIONAL: Recalls Garrison 1500W Oil-Filled Heaters
--------------------------------------------------------------
Starting date: November 19, 2013
Posting date: November 19, 2013
Type of communication: Consumer Product Recall
Subcategory: Appliances
Source of recall: Health Canada
Issue: Fire Hazard
Audience: General Public
Identification number: RA-36781
Affected products: Garrison 1500W Oil-Filled Heaters
The recall involves Garrison 1500W oil-filled heaters. The
recalled units can be identified by a silver label attached to the
underside of the unit bearing the model number and a manufacturing
date code. The recall is limited to units with model number
043-5863-4 and a date code starting with the digits "10", "11", or
"2012".
Units with a date code starting with "2013" are not subject to
this recall.
Midea has identified that some units may overheat and burn the
comfort switch located inside the metal cage, posing a fire
hazard. There have been no reported injuries.
Health Canada has no reports of incidents or injuries to Canadians
related to the use of these oil heaters.
Approximately 110,000 units of the recalled oil heaters were sold
exclusively at Canadian Tire stores across Canada.
The recalled oil heaters were manufactured in China and sold
between September 1, 2010 and September 1, 2013 and any units sold
after September 1, 2013 are not subject to the recall.
Companies:
Manufacturer Midea International
Guangdong
China
Customers should stop using the affected unit immediately and
return it to their local Canadian Tire store for an exchange or
refund.
MIKE MEISNER: Inmates' Bid in Suit vs. Prison Officers Denied
-------------------------------------------------------------
Robert Tatum seeks reconsideration of a U.S. federal district
court's September 30, 2013, opinion and order, finding his
complaint in violation of Federal Rule of Civil Procedure 20 and
requiring him to choose which of his distinct claims he wishes to
pursue as Case No. 13-cv-44. Mr. Tatum argues that the court
failed to consider his intention to bring his complaint as a class
action pursuant to Federal Rule of Civil Procedure 23 in applying
Rule 20. For support, Tatum cites to language in Bell v. Wolfish,
441 U.S. 520 (1979), indicating that a class action may pursue
numerous challenges to conditions of confinement and practices.
In a November 1, 2013 Opinion and Order available at
http://is.gd/H8Teuwfrom Leagle.com, District Judge William M.
Conley denied Mr. Tatum's motion for reconsideration saying Bell
predates the Prison Litigation Reform Act of 1995, 42 U.S.C.
Section1997e.
"Under the PLRA," said Judge Conley, "this court is required to
screen each proposed claim and dismiss any that are frivolous,
fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief
. . . The court will not undertake this task until the plaintiff
has done the work to narrow his claims to satisfy Rule 20."
Moreover, the court was fully aware that Mr. Tatum seeks to bring
an action on behalf of himself and others similarly situated,
added Judge Conley. There was and is no reason to grant Mr. Tatum
more leeway simply because he seeks to pursue his claims as a
putative class action. On the contrary, for the court to determine
whether certification of a class is appropriate, it must engage in
a separate, rigorous analysis of the requirements of Rule 23. If
anything, this is one more reason to first determine whether Tatum
has asserted a claim which has some legal merit. Before the court
can screen his complaint, Mr. Tatum must select a claim or related
claims to pursue in this particular lawsuit that he believes will
pass the screening process, Judge Conley concluded.
The case is ROBERT TATUM, and all similarly situated DOC/CCI
Inmates, Plaintiff, v. MIKE MEISNER, JIM SCHWOCHERT, CATHY JESS,
JANE NICKELS, RICK PHILLIPS, MARK TESLIK, CHAP. CAMPBELL, CHAP.
DORN, KELLI WEST, MALONEY, PROG. DIRECTOR SCHUELLER, PROG.
DIRECTOR IRIZAY, UNIT MANAGER HAUTAMAKI, LT. MORRISSON, LT.
PEACHIE, CAPT. PEIRCE, SRGT. PAUL, SRGT. BERLUND, JEFF CAPELLE,
DR. SULIENE, DAI DIETICIAN, DR. SCOTT HOFTIEZER, RN KAY DEGNER,
MARY LEISER, JOANNE LANE, JOANNE BOVEE, RICK SCHNIEIER, CHARLES
FACKTOR, CHARLES COLE, GARY HAMBLIN, 5 UNKNOWN OFFICERS, and 2
UNKNOWN NURSES, Defendants, NO. 13-CV-44-WMC, (W.D. Wis.).
MINNESOTA: Court Narrows Claims in Privacy Suit vs. DHS
-------------------------------------------------------
In the putative class action captioned Chad Nelson, Plaintiff, v.
Lucinda Jesson, Minnesota Department of Human Services, State of
Minnesota, Troy Schlener, Carla Brown, Kristin Johnson, Jerry
Kerber, Michael Campion, and Ramona Dohman, Defendants, CIV. NO.
13-340 (RHK/JJK), (D. Minn.), Plaintiff Chad Nelson alleges that
Defendant Troy Schlener, while employed by Defendant Minnesota
Department of Human Services (DHS), accessed his driver's license
information and the information of approximately 1,100 others
without authorization, in violation of federal and state law.
Mr. Nelson asserts claims against Mr. Schlener, DHS, and the
various supervisors, commissioners, and other governmental
agencies that allowed Mr. Schlener access to his personal
information. He asserts violations of the federal Driver's
Privacy Protection Act, 18 U.S.C. Section 2721 et seq. (DPPA),
Minnesota's Government Data Privacy Act, Minn. Stat. Section 13.01
et seq. (MGDPA), his constitutional rights, and his common-law
right to privacy. All Defendants moved to dismiss.
Judge Richard H. Kyle granted in part and denied in part
Schlener's Motion to Dismiss, and granted the other Defendants'
Motion to Dismiss, as follows:
(1) Count One (DPPA) of the Second Amended Complaint is dismissed
without prejudice as to Jesson, Campion, and Dohman;
(2) Counts Three and Four (42 U.S.C. Section 1983) of the Second
Amended Complaint are dismissed without prejudice;
(3) Count Five (MGDPA) of the Second Amended Complaint is
dismissed without prejudice as to the State of Minnesota and
DHS and dismissed with prejudice as to the Schlener and
Jesson; and
(4) Count Six (Common Law Invasion of Privacy) of the Second
Amended Complaint is dismissed without prejudice.
Only Counts One and Two remain pending against Defendant Schlener.
All other Defendants and Counts are dismissed, ruled the Court.
A copy of the District Court's November 1, 2013 Memorandum Opinion
and Order is available at http://is.gd/kkvl7Hfrom Leagle.com.
Daniel J. Bellig -- dbellig@farrishlaw.com -- Joseph A. Gangi --
jgangi@farrishlaw.com -- William S. Partridge --
wpartridge@farrishlaw.com -- Scott V. Kelly --
skelly@farrishlaw.com -- Farrish Johnson Law Office, Chtd.,
Mankato, Minnesota, for Plaintiff.
Counsel for Defendant Troy Schlener:
Seth J. S. Leventhal, Esq.
LEVENTHAL pllc
527 Marquette Ave S
Minneapolis, MN 55402
Telephone: (612)234-7349
Steven H. Alpert, Ricardo Figueroa, Minnesota Attorney General's
Office, St. Paul, Minnesota, for all Defendants.
MIRACO EURO: Recalls Eurocrem Spread Due to Undeclared Almonds
--------------------------------------------------------------
Starting date: November 18, 2013
Type of communication: Recall
Alert sub-type: Allergy Alert
Subcategory: Allergen - Tree Nut
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: Miraco Euro Food Ltd.
Distribution: Alberta, British Columbia
Extent of the product
distribution: Retail
CFIA reference number: 8469
Affected products: 1000 g. Takovo Eurocrem Spread with code number
UPOTREBLJIVODO
NATIONAL FOOTBALL: Court Enters Final OK of "Dryer" Suit Deal
-------------------------------------------------------------
District Judge Paul A. Magnuson granted final approval of a
settlement resolving the case captioned John Frederick Dryer,
James Lawrence Marshall, Joseph Michael Senser, Elvin Lamont
Bethea, Dante Anthony Pastorini, Edward Alvin White, Fred Lee
Barnett, Tracy Anthony Simien, Darrell Alexander Thompson, Jim Ray
Smith, Irvin Acie Cross, Bruce Allan Laird, Brian Duncan, Reginald
Joseph Rucker, Billy Joe Dupree, Mark Gregory Clayton, Preston
Pearson, Reginald McKenzie, Joseph Barney Lemuel, Jackie Larue
Smith, Paul James Krause, James Nathaniel Brown, and Michael James
Haynes, on behalf of themselves and all others similarly situated,
Plaintiffs, v. National Football League, Defendant, CIVIL NO. 09-
2182 (PAM/AJB), (D. Minn.).
Judge Magnuson overruled objections to the settlement.
According to the ruling, the Defendant must deposit $7,550,000
into the Settlement Escrow Account within 10 business days of the
effective date, as defined in the Settlement Agreement, to be used
to (1) pay awards of attorney's fees and expenses to be
determined, (2) pay service awards to certain Settling Plaintiffs
to be determined, and (3) to establish and for initial operating
expenses of the Licensing Agency. After 24 months, all money
remaining in the Settlement Escrow Account will be transferred to
the Common Good Fund.
Judge Magnuson entered judgment dismissing with prejudice, on the
merits, and without taxation of costs in favor of or against any
party, all claims that were or could have been asserted by all
class members except those excluded from the class.
The Court referred the Motions for Attorney's Fees, Plaintiffs'
Lead Settlement Counsel's reports on the same, and Plaintiffs'
Lead Settlement Counsel's recommendations for class representative
awards to Chief Magistrate Judge Arthur J. Boylan pursuant to
28 U.S.C. Section 636(b)(1)(A).
The individual named Plaintiffs who have been excluded from the
Settlement Class will appear for a pretrial scheduling conference
before Chief Magistrate Judge Arthur J. Boylan within 30 days of
the date of the Order, and can anticipate shortened deadlines for
discovery and motion practice, and a trial date in the first half
of 2014, Judge Magnuson added.
A copy of the District Court's November 1, 2013 Memorandum and
Order is available at http://is.gd/jJaKtDfrom Leagle.com.
NEW YORK: Found Liable for ADA, Rehab Act and NYCHRL Violations
---------------------------------------------------------------
In BROOKLYN CENTER FOR INDEPENDENCE OF: THE DISABLED, a nonprofit
organization, CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK, a
nonprofit organization, GREGORY D. BELL, and TANIA MORALES,
Plaintiffs, v. MICHAEL R. BLOOMBERG, in his official capacity as
Mayor of the City of New York, and THE CITY OF NEW YORK,
Defendants, NO. 11 CIV. 6690 (JMF), (S.D. N.Y.), District Judge
Jesse M. Furman concluded that the City has violated the Americans
with Disabilities Act (ADA0, the Rehabilitation Act, and the New
York City Human Rights Law (NYCHRL) by failing to provide people
with disabilities meaningful access to its emergency preparedness
program in several ways. In particular:
(1) The City's evacuation plans do not accommodate the needs of
people with disabilities with respect to high-rise evacuation
and accessible transportation;
(2) its shelter plans do not require that the shelter system be
sufficiently accessible, either architecturally or
programmatically, to accommodate people with disabilities in
an emergency;
(3) the City has no plan for canvassing or for otherwise ensuring
that people with disabilities -- who may, because of their
disability, be unable to leave their building after a disaster
-- are able to access the services provided by the City after
an emergency;
(4) the City's plans to distribute resources in the aftermath of a
disaster do not provide for accessible communications at the
facilities where resources are distributed;
(5) the City's outreach and education program fails in several
respects to provide people with disabilities the same
opportunity as others to develop a personal emergency plan;
and
(6) the City lacks sufficient plans to provide people with
disabilities information about the existence and location of
accessible services in an emergency.
By contrast, held Judge Furman, the Plaintiffs have failed to
prove that the City's emergency preparedness program violates the
law in other respects. For example, Plaintiffs failed to
establish that the City's plans regarding the provision of
supplies to people with disabilities housed in the shelter system
during an emergency are insufficient or that the City's advice to
residents to be prepared to shelter in place for 72 hours after an
emergency violates the law. Additionally, while the evidence
indicates that there are problems with the content of the City's
emergency communications, Plaintiffs have not demonstrated that
the means by which the City disseminates emergency information,
and plans to do so in the future, are, considered together,
inadequate to effectively communicate the information to people
with disabilities. Finally, with respect to recovery operations,
Plaintiffs have failed to establish that the City's emergency
preparedness plans violate the rights of people with disabilities
in providing for accessible facilities to distribute resources
after an emergency, in preparing for the removal of debris, or --
to the extent the City has a plan at all -- in furnishing interim
housing following an emergency.
According to Judge Furman, the record in the case makes clear
that, although the City's emergency preparedness plans fall short
of legal requirements in several significant respects, they are
still remarkable in many ways. The challenges facing cities in
general, and this city in particular, are immense, and New York
City has done an admirable job of preparing for a wide range of
disasters, both manmade and natural, that could strike at almost
any time. The record also makes clear that individual New Yorkers
have gone to great lengths, and put themselves at great risk, to
help their fellow New Yorkers, including many with special needs.
The question in this case, however, is not whether the City, or
individual first responders, have done an admirable job in
planning for, or responding to, disasters generally. They plainly
have. Instead, the question is whether the City has done enough to
provide people with disabilities meaningful access to its
emergency preparedness program given the broad remedial purposes
of the ADA, the Rehabilitation Act, and the NYCHRL. The answer to
that question is that it has not, and in doing so it has deprived
people with disabilities of what they are entitled to under the
law, not to mention of the peace of mind that people without
disabilities can have when it comes to the City's preparedness
plans, ruled Judge Furman.
The trial in the case was limited to the question of liability,
noted the ruling. Having found that the City violated the ADA, the
Rehabilitation Act, and the NYCHRL in several respects, the Court
will proceed to consider the issue of how to remedy those
violations, said Judge Furman. Given the complexity and potential
expense involved, there is no question that crafting an
appropriate remedy would be better accomplished by those with
expertise in such matters and through negotiation, whether court-
supervised or otherwise, than by Court order. Further, the United
States has indicated that it is able and willing to assist the
parties and, if necessary, the Court in addressing the question of
remedy.
The Court, therefore, directed the parties to meet and confer --
in person and with representatives of the Department of Justice,
if they elect to participate -- about the most productive means of
resolving the question of remedies through alternative dispute
mechanisms. At the same time, mindful that the Court will impose
remedies if the parties cannot agree on them, the parties will
discuss the process and schedule for the remaining litigation,
including but not limited to whether there is a need for
additional discovery, whether the parties anticipate motion
practice, and whether there is a need for another trial on
remedies. The parties are directed to submit a joint status letter
with respect to these matters and any other information that the
parties believe may assist the Court in advancing the case to
settlement or trial no later than November 26, 2013. They will
then appear for a conference with the Court on December 3, 2013,
at 3:15 p.m. in Courtroom 1105 of the Thurgood Marshall
Courthouse, 40 Centre Street, New York.
A copy of the District Court's November 7, 2013 Opinion and Order
is available at http://is.gd/vRzZskfrom Leagle.com.
NORTH CAROLINA: Motion to be Heard in "Bumgarner" Suit Denied
-------------------------------------------------------------
The class action captioned CHAD BUMGARNER, et al, Plaintiffs, v.
NCDOC, et al, Defendants, NO. 5:10-CT-3166-BO, (E.D.N.C) was
settled by approval of a Stipulated Consent Decree on August 25,
2013. Prior to the entry of the decree, as directed by Rule 23 of
the Federal Rules of Civil Procedure, a fairness hearing was held
which reviewed the decree and addressed objections and issues
raised by the plaintiff class. The decree also set a status
conference for February 18, 2014.
Lowell Varney, an inmate within the North Carolina Department of
Public Safety, has now filed a motion within this action entitled
"Motion to be Heard" which he filed October 25, 2013.
"Having entered into a consent decree, any individual seeking
relief which raise these settled issues, must do so in a separate
lawsuit," rules District Judge Terrence W. Boyle. "Therefore, the
motion is denied as it applies to this suit."
Judge Boyle clarified that individuals will not be barred from
filing separate and distinct suits.
Judge Boyle directed the Clerk not to accept additional filings in
the action from individuals, other than through counsel in the
suit, given the posture of the matter and the entry of the joint
decree.
A copy of the District Court's November 1, 2013 Order is available
at http://is.gd/k3hP29from Leagle.com.
NTS INC: Being Sold cheaply Through Unfair Process, Suit Claims
---------------------------------------------------------------
Courthouse News Service reports that directors sold NTS Inc. too
cheaply through an unfair process to Tower 3 Partners for $2 a
share or $83 million, shareholders claim in Clark County Court.
OVERSTOCK.COM: Settlement of Suit Over Facebook Product Appealed
----------------------------------------------------------------
A settlement of a suit filed against Overstock.Com over its use of
Facebook Beacon is under appeal, according to the company's Oct.
24, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2013.
On August 12, 2008, the company along with seven other defendants,
were sued in the United States District Court for the Northern
District of California, by Sean Lane, and seventeen other
individuals, on their own behalf and for others similarly in a
class action suit, alleging violations of the Electronic
Communications Privacy Act, Computer Fraud and Abuse Act, Video
Privacy Protection Act, and California's Consumer Legal Remedies
Act and Computer Crime Law.
The complaint relates to the company's use of a product known as
Facebook Beacon, created and provided to the company by Facebook,
Inc. Facebook Beacon provided the means for Facebook users to
share purchasing data among their Facebook friends. The parties
extended by agreement the time for defendants' answer, including
the company's answer, and thereafter, the Plaintiff and Facebook
proposed a stipulated settlement to the Court for approval, which
would resolve the case without requirement of financial
contribution from us.
On March 17, 2010, over objections lodged by some parties, the
Court entered an order accepting settlement. Various parties
appealed and on September 20, 2012, the Federal Appeals Court for
the 9th Circuit upheld the settlement. Appealing parties
petitioned for a rehearing. On February 26, 2013, the Court denied
the petition. The appealing parties have petitioned the Supreme
Court of the United States for a writ of certiorari. The Supreme
Court has not ruled on the petition. The nature of the loss
contingencies relating to claims that have been asserted against
the company are described.
OVERSTOCK.COM: Dismissal of Suit Over Returns Policy Now Final
--------------------------------------------------------------
The case filed by Cynthia Hines against Overstock.com is now
closed after the time for appeal against the dismissal of the case
passed without one being lodged, according to the company's Oct.
24, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2013.
On March 10, 2009, the was company sued in a class action filed in
the United States District Court, Eastern District of New York.
Cynthia Hines, the nominative plaintiff on behalf of herself and
others similarly situated, seeks damages under claims for breach
of contract, common law fraud and New York consumer fraud laws.
The Plaintiff alleges the company failed to properly disclose the
company's returns policy to her and that the company improperly
imposed a "restocking" charge on her return of a vacuum cleaner.
The company filed a motion to dismiss based upon assertions that
the company's agreement with the company's customers requires all
such actions to be arbitrated in Salt Lake City, Utah.
On December 31, 2010, Hines filed an amended complaint. The
amended complaint eliminated common law fraud claims and breach of
contract claims and added claims for breach of Utah's consumer
protection statute and various other state consumer protection
statutes. The amended complaint also asked for an injunction. The
company filed motions to dismiss and to decertify the class. On
August 19, 2013, the court granted the company's motion and later
dismissed the case. The time for filing a notice of appeal has
passed, thus concluding the case.
QUEST DIAGNOSTICS: Certification of ERISA Violations Claim Sought
-----------------------------------------------------------------
The plaintiff in a suit pending against Quest Diagnostics
Incorporated in the United States District Court for the District
of New Jersey recently moved for class certification of its claim
for violation of the Employee Retirement Income Security Act,
according to the company's Oct. 24, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Sept. 30, 2013.
In November 2010, a putative class action entitled Seibert v.
Quest Diagnostics Incorporated, et al. was filed against the
Company and certain former officers of the Company in New Jersey
state court, on behalf of the Company's sales people nationwide
who were over forty years old and who either resigned or were
terminated after being placed on a performance improvement plan.
The complaint alleges that the defendants' conduct violates the
New Jersey Law Against Discrimination ("NJLAD"), and seeks, among
other things, unspecified damages. The defendants removed the
complaint to the United States District Court for the District of
New Jersey. The plaintiffs filed an amended complaint that added
claims under ERISA.
The Company filed a motion seeking to limit the application of the
NJLAD to only those members of the purported class who worked in
New Jersey and to dismiss the individual defendants. The motion
was granted. The only remaining NJLAD claim is that of the named
plaintiff. Both parties have filed summary judgment motions. The
defendants' motion was granted in part, but denied as to an ERISA
claim, and the plaintiff's motion was denied. The plaintiff
recently moved for class certification of the ERISA claim.
QUEST DIAGNOSTICS: Celera Securities Litigation in Discovery
------------------------------------------------------------
The motion of Quest Diagnostics Incorporated to dismiss In re
Celera Corp. Securities Litigation was denied and the parties are
engaged in discovery, according to Quest's Oct. 24, 2013, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2013.
In 2010, a purported class action entitled In re Celera Corp.
Securities Litigation was filed in the United States District
Court for the Northern District of California against Celera
Corporation and certain of its directors and current and former
officers.
An amended complaint filed in October 2010 alleges that from April
2008 through July 22, 2009, the defendants made false and
misleading statements regarding Celera's business and financial
results with an intent to defraud investors. The complaint was
further amended in 2011 to add allegations regarding a financial
restatement. The amended complaint seeks unspecified damages on
behalf of an alleged class of purchasers of Celera's stock during
the period in which the alleged misrepresentations were made. The
Company's motion to dismiss the complaint was denied. The parties
are engaged in discovery.
In August 2011, the Company received a subpoena from the U.S.
Attorney for the Northern District of Georgia seeking various
business records, including records related to the Company's
compliance program, certain marketing materials, certain product
offerings, and test ordering and other policies. The Company is
cooperating with the request.
QUEST DIAGNOSTICS: Objects to Class Proceedings in "Beery" Suit
---------------------------------------------------------------
Quest Diagnostics Incorporated has objected to a request for a
discrimination suit by female sales representatives to proceed as
a class action, according to Quest's Oct. 24, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2013.
In January 2012, a putative class action entitled Beery v. Quest
Diagnostics Incorporated was filed in the United States District
Court for the District of New Jersey against the Company and a
subsidiary, on behalf of all female sales representatives employed
by the defendants from February 17, 2010 to the present.
The amended complaint alleges that the defendants discriminate
against these female sales representatives on account of their
gender, in violation of the federal civil rights and equal pay
acts, and seeks, among other things, injunctive relief and
monetary damages. The Company's motion to compel arbitration was
granted and the case was dismissed. In the arbitration, the
plaintiffs requested to proceed on a class basis. The Company
objected to the plaintiffs' request.
QUEST DIAGNOSTICS: Seeks to Dismiss Suit by Biotechnology Value
---------------------------------------------------------------
Quest Diagnostics Incorporated filed a motion to dismiss a suit
filed by Biotechnology Value Fund, L.P. and others in the United
States District Court for the Northern District of California,
according to Quest's Oct. 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2013.
In March 2011, prior to the Company's acquisition of Celera Corp.,
several putative class action lawsuits were filed by shareholders
of Celera against the Company, Celera, and the directors of Celera
in the Court of Chancery of Delaware and in California.
The suits allege that Celera's directors breached their fiduciary
duties in connection with the Company's proposed acquisition of
Celera, and that the Company aided and abetted those alleged
breaches. The parties reached a settlement, and the Court of
Chancery of Delaware certified a settlement class and approved the
settlement over the objection of a Celera shareholder, BVF
Partners L.P. On appeal of the Court of Chancery's decision, the
Supreme Court of the State of Delaware affirmed the certification
of the settlement class and approval of the settlement, but
determined that BVF Partners L.P. should have been afforded the
right to "opt out" of the settlement and pursue its claims.
Following this decision, in July 2013, Biotechnology Value Fund,
L.P. and others filed a lawsuit in the United States District
Court for the Northern District of California against the Company,
Celera, former directors of Celera and Credit Suisse Securities
(USA) LLC ("Credit Suisse") alleging federal securities laws
violations and breach of fiduciary duty claims against Celera, its
directors and Credit Suisse. The complaint also alleges that the
Company and Credit Suisse aided and abetted those breaches. The
Company filed a motion to dismiss the complaint.
QUEST DIAGNOSTICS: Settles Lawsuit Over "Unsolicited" Fax Ads
-------------------------------------------------------------
Quest Diagnostics Incorporated reached a settlement in a suit
alleging it unlawfully sent fax advertisements, according to the
company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2013.
In July 2012, a putative class action entitled Mt. Lookout
Chiropractic Center Inc. v. Quest Diagnostics Incorporated, et al.
("Mt. Lookout") was filed in the United States District Court for
the District of New Jersey against the Company, two of its
subsidiaries and others.
In June 2013, the plaintiff voluntarily dismissed the action and
filed a new complaint in state court in Illinois. The new
complaint alleges that the defendants violated the federal
Telephone Consumer Protection Act by sending fax advertisements
without permission and without the required opt-out notice, and
seeks monetary damages and injunctive relief. The parties have
reached a settlement that the court has preliminarily approved.
In addition, the Company and certain of its subsidiaries have
received subpoenas from one state agency and from the Department
of Health and Human Services Office of Inspector General and is
cooperating with their requests.
ROBERT BOSCH: Employees Compelled to Pay Tax Refunds, Suit Says
---------------------------------------------------------------
The national plaintiffs' law firm Lieff Cabraser Heimann &
Bernstein, LLP, announced that Suraj Kamath on Nov. 19 filed a
class action lawsuit against Robert Bosch, LLC and Robert Bosch
Engineering and Business Solutions Ltd. ("Bosch") charging that
Bosch unjustly enriched itself by requiring all of its non-U.S.
citizens employees to pay to Bosch federal and state tax refunds
the employees had received while working in the U.S.
"I worked diligently for Bosch for years," stated Kamath. "When I
objected to Bosch's demand to pay back all tax refunds I had
received, Bosch threatened to fire me, send me back to India, and
make my life miserable. The way Bosch treats its employees is
wrong and that's why I am standing up to Bosch for myself and my
fellow colleagues at Bosch."
"The Indian citizens who Bosch brought to the United States have
contributed to the U.S. economy and helped Bosch grow and prosper
in America," stated Daniel M. Hutchinson, counsel for Kamath and
the proposed class. "All Bosch employees should receive their full
wages, and that includes the tax refunds they are entitled to.
These employees deserve to be treated fairly, and not have their
livelihoods threatened for insisting that Bosch comply with the
law."
The class action lawsuit was filed in federal court in Los
Angeles, California. The complaint seeks certification by the
Court of a class consisting of "All non-U.S. citizens who were,
are, or will be employed by Bosch from whom Bosch has demanded
payment of their tax refund amounts." It is estimated that at
least 160 persons are class members. The complaint seeks monetary
damages and injunctive relief.
Factual Allegations Summarized
Robert Bosch, LLC is the principal U.S. subsidiary of Robert Bosch
GmbH, a German multinational corporation that specializes in
engineering and electronics, and is one of the world's largest
suppliers of automotive components. Robert Bosch Engineering and
Business Solutions, Ltd. ("RBEI"), based in India, describes
itself as the "technology powerhouse" of its parent company Robert
Bosch GmbH.
In 2005, Kamath, a citizen of India, began working for RBEI in
India. In March 2009, RBEI transferred Kamath to the U.S., where
he worked as a Project Manager in Santa Barbara, California, until
May 2013.
Bosch's Alleged Coercive Efforts To Obtain Employee Tax Refunds
The complaint alleges that on December 21, 2012, Bosch sent
letters to Kamath and other Bosch employees listing the amounts of
tax refunds the employee had received for tax years 2006 through
2011. Bosch directed that the employee "repay this amount" to
Bosch by check before January 15, 2013, or arrange for payroll
deductions by no later than December 27, 2012. The tax refund
amounts sought by Bosch totaled in the tens of thousands of
dollars for many employees.
Kamath objected to Bosch's demand. In response, the complaint
alleges that Bosch informed Kamath that, if he did not sign a form
declaration promising to pay Bosch the full amount of his tax
refunds, Bosch would fire him and require him to return to India.
Bosch managers threatened Kamath, stating, "We will make sure that
your career is destroyed and you will not be able to find a job
anywhere. We will make your life miserable if you don't sign [the
declaration promising to pay back to Bosch the tax refunds you
received]."
Following Kamath's refusal to comply with Bosch's demand, Bosch
required Kamath to return to India in May 2013, even though his
visa was valid until March 1, 2014. In addition, Bosch refused to
pay Kamath a performance pay amount that Bosch owes him for his
work in 2012. Other Bosch employees who complied with Bosch's
coercive tactics have had the tax refund amounts taken by Bosch
through payroll deductions.
Legal Resources for Employees Working in the U.S. on Business
Visas
Employees of Bosch working in the U.S. on a business visa as well
as other non-U.S. citizens who worked in the U.S. on a B-1, H-1B,
or L-1 visa are welcome to contact Lieff Cabraser. If you believe
you have been subjected to any violations of labor laws or your
employer has breached your employment contract, we will review
your claim for no charge without any obligation on your part.
All information will be kept strictly confidential as provided
under the law.
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP, is a sixty-plus attorney
law firm with offices in San Francisco, New York, and Nashville.
We are committed to achieving justice for employees, investors,
consumers, patients, and business owners; promoting safer products
and fair competition; protecting our environment; assisting
individuals blow the whistle on fraud; safeguarding the rights of
patent and copyright holders; and remedying violations of the
civil rights of citizens worldwide.
Earlier this year, we achieved a $29.75 million settlement of a
class action lawsuit on behalf of 12,700 Indian nationals who
worked in the U.S. for Tata Consultancy Services, Ltd. The ground-
breaking suit charged that Tata violated California law by
requiring employees to sign over their federal and state tax
refund checks to Tata, and Tata breached its contracts with Indian
nationals sent to the U.S. by failing to pay them their promised
wages. The settlement provided for a more than a complete recovery
of the employees' lost tax refunds.
ST. LOUIS, MO: Court Dismisses Ballard's Suit as Frivolous
----------------------------------------------------------
SLA BALLARD, Plaintiff, v. CITY OF ST. LOUIS, et al., Defendants,
NO. 4:13CV1773 HEA, (E.D. Mo.), is before the Court upon the
motion of plaintiff for leave to commence the action without
prepayment of the filing fee pursuant to 28 U.S.C. Section 1915.
Upon consideration of the financial information provided with the
motion, District Judge Henry Edward Autrey finds that plaintiff is
financially unable to pay any portion of the filing fee.
As a result, says Judge Autrey, the plaintiff will be granted
leave to proceed in forma pauperis pursuant to 28 U.S.C. Section
1915. Additionally, he says, the Court has reviewed the complaint
and will dismiss it pursuant to 28 U.S.C. Section 1915(e)(2)(B).
"[T]he Clerk shall not issue process or cause process to issue
upon the complaint because the complaint is legally frivolous or
fails to state a claim upon which relief can be granted, or both,"
says the Court.
A copy of the District Court's November 1, 2013 Memorandum and
Order is available at http://is.gd/e2J6qefrom Leagle.com.
ST. LOUIS SEWER: Trial Court Ruling in "Zweig" Suit Upheld
----------------------------------------------------------
William Zweig and the other named plaintiffs, on behalf of
themselves and a class of similarly situated ratepayers, sued the
Metropolitan St. Louis Sewer District (MSD) seeking declaratory,
injunctive, and monetary remedies on the ground that MSD violated
article X, section 22(a) of the Missouri Constitution when it
implemented its "stormwater user charge" without prior voter
approval. The trial court declared MSD's action unconstitutional,
enjoined future collection of the charge, and ordered MSD to pay
the Ratepayers' attorneys' fees and other expenses. The trial
court, however, refused to order MSD to pay damages or refund
charges already collected.
MSD appealed the trial court's decision on Ratepayers'
constitutional claim and the award of Ratepayers' attorneys' fees
and expenses. Ratepayers cross-appealed, claiming that the trial
court erred in refusing to enter a money judgment against MSD for
the amounts already collected.
Judge Paul C. Wilson of the Supreme Court of Missouri affirms the
judgment of the trial court in all respects and remands the case
for the limited purpose of having the trial court hear and
determine Ratepayers' motion for appellate fees and costs.
The case is William Douglas Zweig, et al., Respondents/Cross-
Appellants, v. The Metropolitan St. Louis Sewer District,
Appellant/Cross-Respondent, NO. SC92581.
A copy of the Supreme Court's November 12, 2013 Opinion is
available at http://is.gd/RNn3qSfrom Leagle.com.
TIME WARNER: Fails to Pay Minimum and Overtime Wages, Suit Says
---------------------------------------------------------------
Wilson Rodriguez individually and Mario Sandres individually, on
behalf of themselves and all others similarly situated v. PSG,
Inc. and Time Warner Cable and Does 1 through 10, inclusive, Case
No. BC526416 (Cal. Super. Ct., Los Angeles Cty., October 31, 2013)
is a class action lawsuit brought on behalf of persons, who worked
for the Defendants in California as non-exempt employees, for the
Defendants' failure to pay straight, piece rate and minimum wages
and overtime compensation and to pay split shift premiums, among
other compensation.
PSG, Inc. and Time Warner Cable are California corporations
authorized to do business and doing business in the state of
California. The Plaintiffs are unaware of the true names and
capacities of the Doe Defendants.
The Plaintiff is represented by:
Torey J. Favarote, Esq.
Brandyn E. Stedfield, Esq.
GLEASON & FAVAROTE LLP
835 Wilshire Blvd., Suite 200
Los Angeles, CA 90017
Telephone: (213)452-0510
Facsimile: (213)452-0514
E-mail: tfavarote@gleasonfavarote.com
bstedfield@gIeasonfavarote.com
TRAVELZOO INC: Plaintiffs in Securities Suit Withdraw Complaint
---------------------------------------------------------------
An appeal against the dismissal of a consolidated securities
complaint against Travelzoo Inc. was withdrawn, according to the
company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2013.
Beginning on August 9, 2011, two purported class action lawsuits
were commenced in the U.S. District Court for the Southern
District of New York. On January 6, 2012, a Consolidated and
Amended Class Action Complaint was filed.
The complaint asserted claims under Section 10(b) and 20(a)
pursuant to the Securities Exchange Act of 1934 ("Exchange Act")
alleging that between March 16, 2011 and July 21, 2011, the
Company and/or the individual defendants purportedly issued
materially false and misleading statements. In particular, the
complaint asserted, among other things, allegations challenging
certain statements relating to the Company's growth.
The complaint also made allegations regarding the Company's
Getaways product and asserted that certain officers and directors
sold stock while in possession of materially adverse non-public
information. The action sought unspecified damages and the Company
was not able to estimate the possible loss or range of losses that
could potentially result from the action.
On March 29, 2013, the U.S. District Court for the Southern
District of New York issued a decision and order, granting
defendants' motions to dismiss and dismissing the securities
action. The plaintiffs thereafter filed a notice of appeal. On
September 20, 2013, the parties entered into a stipulation to
withdraw the appeal and the appeal was withdrawn with prejudice.
The Company continues to believe that the action was without
merit.
UBS FINANCIAL: 5th Cir. Orders Arbitration in "Hendricks" Case
--------------------------------------------------------------
Former UBS Financial Services, Incorporated (UBS) financial
advisors and branch managers had sued UBS alleging that it
violated the Employee Retirement Income Security Act by deeming
certain funds in the Plaintiffs' PartnerPlus Plans forfeited upon
their departure from the company. The district court denied UBS'
motions to compel arbitration. UBS appealed.
The United States Court of Appeals, Fifth Circuit, found that the
Plaintiffs agreed in the Branch Manager Compensation Plan and
Financial Advisor Compensation Plan to arbitrate their claim. The
Fifth Circuit, therefore, reversed the denial of UBS's motions to
compel arbitration and remanded the case for entry of an order
compelling arbitration.
According to the ruling, the arbitration clause in the
Compensation Plan represents a separate and independent agreement
between the Plaintiffs and UBS to submit "any disputes" concerning
compensation and employment to arbitration. Regardless of whether
the arbitration clause in the PartnerPlus Plan would otherwise
require arbitration, the arbitration provision in the Compensation
Plan is enforceable and its scope covers the Plaintiffs' claim.
The case is BILL HENDRICKS; AUBREY B. STACY, Plaintiffs-Appellees,
v. UBS FINANCIAL SERVICES, INCORPORATED, Defendant-Appellant.
MARK T. EDDINGSTON; JEFFREY M. DAVIS; ELRIDGE NICHOLAS BOLLICH;
RAY A. COX, Plaintiffs-Appellees, v. UBS FINANCIAL SERVICES,
INCORPORATED, Defendant-Appellant, NO. 13-40692, CONSOLIDATED WITH
NO. 13-40693.
A copy of the Appeals Court's November 11, 2013 Opinion is
available at http://is.gd/t6XlVUfrom Leagle.com.
UNIT DRILLING: Motion to Dismiss Claims in EEOC Suit Denied
-----------------------------------------------------------
Before the Court in the case captioned EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Plaintiff, PATSY CRAIG, Intervenor
Plaintiff, v. UNIT DRILLING COMPANY and UNIT CORPORATION,
Defendants, NO. 13-CV-147-TCK-PJC, (N.D. Okla.), is Defendant Unit
Drilling Company's Motion to Dismiss First Amended Complaint and
Brief in Support, wherein Unit Drilling moves to dismiss the
claims of Plaintiff Equal Opportunity Employment Commission
pursuant to Federal Rule of Civil Procedure 12(b)(1).
District Judge Terence C. Kern denied Unit's Motion to Dismiss.
The Defendant's Objections to the Magistrate's September 5, 2013
Order and Motion to Stay Discovery Pending its Objections to the
Magistrate's September 5 Order were denied as moot.
A copy of the District Court's November 1, 2013 Opinion and Order
is available at http://is.gd/kRMz4Zfrom Leagle.com.
UNIV. OF MISSOURI: Appeals Ct. Affirms "Dunn II" Case Dismissal
---------------------------------------------------------------
Alicia Dunn and two other veterans attending publicly funded
universities in Missouri appealed the judgment of the trial court
dismissing their claims against the Board of Curators of the
University of Missouri and Missouri Coordinating Board for Higher
Education (MCBHE) for res judicata.
Prior to the instant case, the Veterans filed a class action
petition (Dunn I) in the Circuit Court of St. Louis County against
the University and MCBHE, alleging University and MCBHE violated
the Missouri Returning Heroes' Education Act, section 173.900,
RSMo (Cum. Supp. 2008) (the Heroes' Act) and the Missouri
Merchandising Practices Act, chapter 407, RSMo (2000), by applying
Veterans' scholarships and student loans against their tuition
costs before discounting their tuition under the Heroes' Act.
Prior to class certification, the trial court dismissed Dunn I for
failure to state a claim upon which relief can be granted. The
Veterans did not file amended pleadings or appeal the trial
court's dismissal of their petition.
Thereafter, the Veterans brought the instant action (Dunn II)
against the University and MCBHE asserting the same claims as
those made in Dunn I. Prior to class action certification, the
University and MCBHE moved to dismiss the petition for res
judicata based on the dismissal of Dunn I. The trial court granted
University and MCBHE's motions, and the Veterans now appeal.
Presiding Judge Lisa S. Van Amburg of the Court of Appeals of
Missouri, Eastern District, Division Four affirms the dismissal
saying the Veterans raise the same claims against the same parties
and rely upon the same material facts as those that were
previously dismissed in Dunn I. "Because the petition in [this]
second action was in all material respects the identical petition
which was previously dismissed for failure to state a claim, the
trial court did not err in dismissing it on the grounds that it
was barred by the principles of res judicata, as used in its broad
sense," she says.
The case is ALICIA DUNN, ADAM CHMIELIK AND BENJAMIN MILLER,
Plaintiffs/Appellants, v. BOARD OF CURATORS OF THE UNIVERSITY OF
MISSOURI AND MISSOURI COORDINATING BOARD FOR HIGHER EDUCATION,
Defendants/Respondents, NO. ED99570.
A copy of the Appeals Court's November 12, 2013 Opinion is
available at http://is.gd/q2ZLECfrom Leagle.com.
URBAN OUTFITTERS: Accused of Altering Records to Avoid Paying OT
----------------------------------------------------------------
Urban Outfitters Inc. is facing a class action lawsuit in
California alleging it systematically, unlawfully, and
unilaterally alters the hours recorded in its timekeeping system
to avoid paying the Plaintiff and other similarly situated
employees the applicable overtime compensation for overtime hours
worked, and to avoid paying these employees for missed meal and
rest breaks.
Urban Outfitters, Inc. is a lifestyle specialty retail company,
which operates under the Urban Outfitters, Anthropologie, Free
People, Terrain and BHLDN brands. The Company also operates a
wholesale segment under the Free People brand. The Company's
product offering includes women's and men's fashion apparel,
footwear and accessories, as well as an eclectic mix of apartment
wares and gifts.
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
BLUMENTHAL, NORDREHAUG & BHOWMIK
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551-1223
Facsimile: (858) 551-1232
E-mail: norm@bamlawlj.com
kyle@bamlawlj.com
aj@bamlawlj.com
The case is Perez v. Urban Outfitters Inc., et al., Case No. 37-
2013-00073549-CU-OE-CTL, in the Superior Court of California for
the County of San Diego.
VIKING RANGE: Recalls Built-In Side-by-Side Refrigerator Freezers
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Viking Range LLC, of Greenwood, Miss., announced a voluntary
recall of about 750 Viking built-in side-by-side refrigerator
freezers with in-door dispensers. Consumers should stop using
this product unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
Electrical connectors in the refrigerator freezer wiring harness
can overheat, posing a fire hazard.
Viking has received 27 reports of electrical shorts and four
fires. No injuries have been reported.
The recall involves Viking 42-inch and 48-inch built-in side-by-
side refrigerator freezers with in-door water and ice dispensers.
The recalled refrigerator freezers come in a variety of colors,
stainless steel or a custom finish. They were manufactured
between October 2012 and May 2013 and have the model numbers
listed below. The first six numbers in the serial number are the
manufacture date of the unit in MM/DD/YY format. Both sizes of
refrigerator freezers have a serial number/date code range from
101712 through 052913. The model and serial numbers are located
inside the refrigerators on a label on the ceiling behind the
light housing.
Size Model Numbers begin with Color/Finish
---- ------------------------ ------------
42-inch FDSB5421D Custom
VCSB5421D Various colors
48-inch FDSB5481D Custom
VCSB5481D Various colors
Pictures of the recalled products are available at:
http://is.gd/2j86Ob
The recalled products were manufactured in United States and sold
at appliance and specialty stores nationwide from November 2012
through May 2013 for between $5,400 and $6,400.
Consumers should immediately turn off and unplug the recalled
refrigerator freezers and contact Viking to schedule a free, in-
home repair.
WAL-MART STORES: Awaits Decision in Braun/Hummel Labor Suit
-----------------------------------------------------------
A decision in Braun/Hummel v. Wal-Mart Stores, Inc. is still to be
made after an oral argument was held in the Pennsylvania Supreme
Court on May 8, 2013, according to the company's Oct. 21, 2013,
Form 10-Q/A (Amendment No. 1) filing with the U.S. Securities and
Exchange Commission for the quarter ended July 31, 2013.
The Company is a defendant in Braun/Hummel v. Wal-Mart Stores,
Inc., a class-action lawsuit commenced in March 2002 in the Court
of Common Pleas in Philadelphia, Pennsylvania. The plaintiffs
allege that the Company failed to pay class members for all hours
worked and prevented class members from taking their full meal and
rest breaks. On October 13, 2006, a jury awarded back-pay damages
to the plaintiffs of approximately $78 million on their claims for
off-the-clock work and missed rest breaks. The jury found in favor
of the Company on the plaintiffs' meal-period claims.
On November 14, 2007, the trial judge entered a final judgment in
the approximate amount of $188 million, which included the jury's
back-pay award plus statutory penalties, prejudgment interest and
attorneys' fees.
By operation of law, post-judgment interest accrues on the
judgment amount at the rate of six percent per annum from the date
of entry of the judgment, which was November 14, 2007, until the
judgment is paid, unless the judgment is set aside on appeal.
On December 7, 2007, the Company filed its Notice of Appeal. The
Company filed its opening appellate brief on February 17, 2009,
plaintiffs filed their response brief on April 20, 2009, and the
Company filed its reply brief on June 5, 2009. Oral argument was
held before the Pennsylvania Superior Court of Appeals on August
19, 2009. On June 10, 2011, the court issued an opinion upholding
the trial court's certification of the class, the jury's back pay
award, and the awards of statutory penalties and prejudgment
interest, but reversing the award of attorneys' fees.
On September 9, 2011, the Company filed a Petition for Allowance
of Appeal with the Pennsylvania Supreme Court. On July 2, 2012,
the Pennsylvania Supreme Court granted the Company's Petition.
The Company served its opening brief in the Pennsylvania Supreme
Court on October 22, 2012, plaintiffs served their response brief
on January 22, 2013, and the Company served its reply on February
28, 2013. Oral argument was held in the Pennsylvania Supreme Court
on May 8, 2013. No decision has been issued. The Company believes
it has substantial factual and legal defenses to the claims at
issue, and plans to continue pursuing appellate review.
WAL-MART STORES: "Dukes" Plaintiffs Filed Petition to Appeal
------------------------------------------------------------
Plaintiffs in the gender discrimination class action Dukes v. Wal-
Mart Stores, Inc. filed a petition for permission to appeal a
denial of class certification to the U.S. Court of Appeals for the
Ninth Circuit, according to the company's Oct. 21, 2013, Form 10-
Q/A (Amendment No. 1) filing with the U.S. Securities and Exchange
Commission for the quarter ended July 31, 2013.
The Company is a defendant in Dukes v. Wal-Mart Stores, Inc.,
which was commenced as a class-action lawsuit in June 2001 in the
United States District Court for the Northern District of
California, asserting that the Company had engaged in a pattern
and practice of discriminating against women in promotions, pay,
training, and job assignments, and seeking, among other things,
injunctive relief, front pay, back pay, punitive damages, and
attorneys' fees.
On June 21, 2004, the district court issued an order granting in
part and denying in part the plaintiffs' motion for class
certification. As defined by the district court, the class
included "[a]ll women employed at any Wal-Mart domestic retail
store at any time since December 26, 1998, who have been or may be
subjected to Wal-Mart's challenged pay and management track
promotions policies and practices."
The Company appealed the order to the Ninth Circuit Court of
Appeals and subsequently to the United States Supreme Court. On
June 20, 2011, the Supreme Court issued an opinion decertifying
the class and remanding the case to the district court. On October
27, 2011, the plaintiffs' attorneys filed an amended complaint
proposing a class of current and former female associates at the
Company's California retail facilities, and the Company filed a
motion to dismiss on January 13, 2012. On September 21, 2012, the
court denied the motion.
The plaintiffs filed a motion for class certification on April 15,
2013. On August 2, 2013, the court denied the motion. On August
16, 2013, the plaintiffs filed a petition for permission to appeal
that ruling to the U.S. Court of Appeals for the Ninth Circuit.
WAL-MART STORES: "Odle" Plaintiffs Denied Permission to Appeal
--------------------------------------------------------------
The U.S. Court of Appeals for the Fifth Circuit denied the
plaintiffs' petition for permission to appeal in the suit Odle v.
Wal-Mart Stores, Inc., according to the company's Oct. 21, 2013,
Form 10-Q/A (Amendment No. 1) filing with the U.S. Securities and
Exchange Commission for the quarter ended July 31, 2013.
On October 28, 2011, the attorneys for the plaintiffs in the
gender discrimination class action Dukes v. Wal-Mart Stores, Inc.
filed a similar complaint in the United States District Court for
the Northern District of Texas entitled Odle v. Wal-Mart Stores,
Inc., proposing a class of current and former female associates
employed in any Walmart region that includes stores located in the
state of Texas.
On October 15, 2012, the court in the Odle case granted the
Company's motion to dismiss, dismissing with prejudice the
plaintiffs' class-action allegations and the individual claims of
the lead plaintiff, Stephanie Odle.
On March 19, 2013, the U.S. Court of Appeals for the Fifth Circuit
denied the plaintiffs' petition for permission to appeal.
WAL-MART STORES: "Phipps" Plaintiffs Want to Appeal Dismissal
-------------------------------------------------------------
Plaintiffs in the suit Phipps v. Wal-Mart Stores, Inc., is asking
the U.S. Court of Appeals for the Sixth Circuit for permission to
appeal the dismissal of the case, according to the company's Oct.
21, 2013, Form 10-Q/A (Amendment No. 1) filing with the U.S.
Securities and Exchange Commission for the quarter ended July 31,
2013.
On October 2, 2012, the plaintiffs' attorneys in the gender
discrimination class actions Dukes v. Wal-Mart Stores, Inc. and
Odle v. Wal-Mart Stores, Inc., filed another similar complaint in
the United States District Court for the Middle District of
Tennessee entitled Phipps v. Wal-Mart Stores, Inc., proposing a
class of current and former female associates employed in "Region
43, centered in Middle and Western Tennessee."
On February 20, 2013, the court in the Phipps case granted the
Company's motion to dismiss, dismissing with prejudice the
plaintiffs' class-action allegations. On June 24, 2013, the
plaintiffs filed a petition for permission to appeal that ruling
to the U.S. Court of Appeals for the Sixth Circuit.
WAL-MART STORES: Filed Motion to Dismiss "Love" Gender Bias Suit
----------------------------------------------------------------
Wal-Mart Stores, Inc. filed a motion to dismiss the suit Love v.
Wal-Mart Stores, Inc., according to the company's Oct. 21, 2013,
Form 10-Q/A (Amendment No. 1) filing with the U.S. Securities and
Exchange Commission for the quarter ended July 31, 2013.
On October 4, 2012, the plaintiffs' attorneys in the gender
discrimination class actions Dukes v. Wal-Mart Stores, Inc., Odle
v. Wal-Mart Stores, Inc., and Phipps v. Wal-Mart Stores, Inc.,
filed another similar complaint in the United States District
Court for the Southern District of Florida, entitled Love v. Wal-
Mart Stores, Inc., proposing a class of current and former female
associates employed in certain designated stores and clubs in
regions centered in the state of Florida.
On October 25, 2012, the Company filed a motion to dismiss the
Florida complaint.
WAL-MART STORES: "Ladik" Plaintiffs Denied Permission to Appeal
---------------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit denied the
petition of the plaintiffs in Ladik v. Wal-Mart Stores, Inc. to
appeal the dismissal of the case, according to the company's Oct.
21, 2013, Form 10-Q/A (Amendment No. 1) filing with the U.S.
Securities and Exchange Commission for the quarter ended July 31,
2013.
On February 20, 2013, the plaintiffs' attorneys in the gender
discrimination class actions Dukes v. Wal-Mart Stores, Inc., Odle
v. Wal-Mart Stores, Inc., Phipps v. Wal-Mart Stores, Inc. and Love
v. Wal-Mart Stores, Inc. filed another similar complaint in the
United States District Court for the Western District of
Wisconsin, entitled Ladik v. Wal-Mart Stores, Inc., proposing a
class of current and former female associates employed in "Region
14, which includes Wal-Mart retail stores located in parts of
Wisconsin, Illinois, Indiana and Michigan."
On May 24, 2013, the court in the Ladik case granted the Company's
motion to dismiss, dismissing with prejudice the plaintiffs'
class-action allegations. On June 13, 2013, the U.S. Court of
Appeals for the Seventh Circuit denied the plaintiffs' petition
for permission to appeal.
WAL-MART STORES: Still Faces Securities Lawsuit in Arkansas
-----------------------------------------------------------
Wal-Mart Stores, Inc. continues to face a securities suit in the
Western District of Arkansas, according to the company's Oct. 21,
2013, Form 10-Q/A (Amendment No. 1) filing with the U.S.
Securities and Exchange Commission for the quarter ended July 31,
2013.
The Company is a defendant in several lawsuits in which the
complaints closely track the allegations set forth in a news story
that appeared in the New York Times (the "Times") on April 21,
2012.
One of these is a securities lawsuit that was filed on May 7,
2012, in the United States District Court for the Middle District
of Tennessee, and subsequently transferred to the Western District
of Arkansas, in which the plaintiff alleges various violations of
the U.S. Foreign Corrupt Practices Act (the "FCPA") beginning in
2005, and asserts violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended, relating to certain
prior disclosures of the Company.
The plaintiff seeks to represent a class of shareholders who
purchased or acquired stock of the Company between December 8,
2011, and April 20, 2012, and seeks damages and other relief based
on allegations that the defendants' conduct affected the value of
such stock.
In addition, a number of derivative complaints have been filed in
Delaware and Arkansas, also tracking the allegations of the Times
story, and naming various current and former officers and
directors as additional defendants.
The plaintiffs in the derivative suits (in which the Company is a
nominal defendant) allege, among other things, that the defendants
who are or were directors or officers of the Company breached
their fiduciary duties in connection with oversight of FCPA
compliance. Most, but not all, of the derivative suits have been
combined into two consolidated proceedings, one of which is
currently pending in the Western District of Arkansas and the
other in the Delaware Court of Chancery.
Management does not believe any possible loss or the range of any
possible loss that may be incurred in connection with these
proceedings will be material to the Company's financial condition
or results of operations.
Securities Class Action: City of Pontiac General Employees
Retirement System v. Wal-Mart Stores, Inc., USDC, Western Dist. of
AR, Fayetteville Div., 5/7/12.
WALT DISNEY: Fails to Provide Consumer Reports, Suit Claims
-----------------------------------------------------------
Roger L. Culberson II, individually, and on behalf of the putative
class . The Walt Disney Company, a California Corporation; and
Does 1-10, inclusive, Case No. BC526351 (Cal. Super. Ct, Los
Angeles Cty., November 1, 2013) alleges that Disney knowingly
violated the Fair Credit Reporting Act by failing to provide its
job applicants and employees with pre-adverse action and adverse
action notices as well as failing to provide with its job
applicants with a copy of their consumer reports.
The Walt Disney Company is a company that conducts business
throughout the United States, including in Los Angeles County,
California. The Company is headquartered in Burbank, California.
The Plaintiff is represented by:
Devin H. Fok, Esq.
THE LAW OFFICES OF DEVIN H. FOK
P.O. Box 7165
Alhambra, CA 91802-7165
Telephone: (310) 430-9933
Facsimile: (323) 563-3445
E-mail: devin@devinfoklaw.com
- and -
Joshua E. Kim, Esq.
A NEW WAY OF LIFE REENTRY PROJECT
958 E. 108th St.
Los Angeles, CA 90059
Telephone: (323) 563-3575
Facsimile: (323) 563-3445
E-mail: joshua@anewwayoflife.org
- and -
John A. Girardi, Esq.
V. Andre Sherman, Esq.
GIRARDI KEESE
1126 Wilshire Blvd.
Los Angeles, CA 90017
Telephone: (213) 977-0211
Facsimile: (213)481-1554
E-mail: jgirardi@girardikeese.com
asherman@girardikeese.com
WINDSTREAM KENTUCKY: "Bowers" Suit Settlement Gets Final Approval
-----------------------------------------------------------------
District Judge John G. Heyburn, II, granted final approval of a
class action settlement in DANA BOWERS, et al. Plaintiffs. v.
WINDSTREAM KENTUCKY EAST, LLC, et al., Defendants, CIVIL ACTION
NO. 3:09-CV-440-H, (W.D. Ky.).
Judge Heybrun said the Plan of Allocation set forth in the
Settlement Agreement is approved and the parties are permitted to
increase the customer distribution upwards should the funds become
available.
The Court approved requested incentive awards of $5,000.00 to be
paid to each Class Representative as provided for in the
Settlement Agreement. The Class Representatives have been active
participants throughout the litigation and settlement process.
The Court also awarded attorney's fees and expenses to David T.
Royse, C. Kent Hatfield, Douglas Brent and Deborah Eversole of the
law firm of Stoll Keenon Ogden PLLC in the amount of $2,500,000;
and administrative expenses in an amount not to exceed $350,000.
The complaint, which the Court finds was filed on a good faith
basis, is dismissed as settled with prejudice, with fees and costs
to be awarded solely as provided in the Settlement Agreement
except that the Court will retain jurisdiction to the extent
necessary to administer and enforce the Settlement Agreement, said
the Judge Heyburn.
A copy of the District Court's November 1, 2013 Memorandum Opinion
and Order is available at http://is.gd/PR0Hbkfrom Leagle.com.
Asbestos Litigation
ASBESTOS UPDATE: Specialty Products Creditors Get OK to Sue Parent
------------------------------------------------------------------
Law360 reported that creditors with asbestos-related claims
against bankrupt Specialty Products Holdings Corp. won permission
on Nov. 13 to sue parent RPM International Inc. over transactions
that allegedly transferred 75 percent of the debtors' assets to
RPM while leaving the liabilities behind.
According to the report, at a hearing in Wilmington, U.S.
Bankruptcy Judge Peter J. Walsh granted standing to the committee
of asbestos personal injury claimants and the representative for
future asbestos claimants, who requested the go-ahead ahead to sue
RPM and others on the estate's behalf.
About Specialty Products
Cleveland, Ohio-based Specialty Products Holdings Corp., aka RPM,
Inc., is a wholly owned subsidiary of RPM International Inc. The
Company is the holding company parent of Bondex International,
Inc., and the direct or indirect parent of certain additional
domestic and foreign subsidiaries. The Company claims to be a
leading manufacturer, distributor and seller of various specialty
chemical product lines, including exterior insulating finishing
systems, powder coatings, fluorescent colorants and pigments,
cleaning and protection products, fuel additives, wood treatments
and coatings and sealants, in both the industrial and consumer
markets.
The Company filed for Chapter 11 bankruptcy protection (Bankr. D.
Del. Case No. 10-11780) on May 31, 2010. Gregory M. Gordon, Esq.,
Dan B. Prieto, Esq., and Robert J. Jud, Esq., at Jones Day, serve
as bankruptcy counsel. Daniel J. DeFranceschi, Esq., and Zachary
I. Shapiro, Esq., at Richards Layton & Finger, serve as co-
counsel. Logan and Company is the Company's claims and notice
agent. The Company estimated its assets and debts at $100 million
to $500 million.
The Company's affiliate, Bondex International, Inc., filed a
separate Chapter 11 petition on May 31, 2010 (Case No. 10-11779),
estimating its assets and debts at $100 million to $500 million.
On May 20, 2013, the Bankruptcy Court entered an order estimating
the amount of the Debtors' asbestos liabilities, and a related
memorandum opinion in support of the estimation order. The
Bankruptcy Court estimated the current and future asbestos claims
associated with Bondex International, Inc. and Specialty Products
Holding at approximately $1.17 billion. The estimation hearing
represents one step in the legal process in helping to determine
the amount of potential funding for a 524(g) asbestos trust.
ASBESTOS UPDATE: Claims Bill Would Ax Fraud, Not Privacy
--------------------------------------------------------
Law360 reported that the benefits for future claimants seeking
compensation from asbestos bankruptcy trusts provided under a bill
the U.S. House of Representatives greenlighted on Nov. 13 would
outweigh the potential privacy issues opponents say come with it,
attorneys say.
According to the report, the Furthering Asbestos Claim
Transparency Act, H.R. 982, was approved 221-199. If enacted, it
would require asbestos trusts set up under Section 524(g) of the
U.S. Bankruptcy Code for insolvent companies that have been
hammered with personal injury and wrongful death claims to
disclose information on the individuals who file the claims.
The bill would impose new disclosure requirements on trusts
charged with paying claims connected to asbestos exposure for
bankrupt companies despite staunch opposition from victims and
Democrats, the report said.
Proponents say the bill will put a damper on trusts making
payments to people who already have received compensation from
other trusts and non-bankrupt companies through the tort system or
to fraudsters, the report added.
ASBESTOS UPDATE: Specialty Products Fine-Tunes Chapter 11 Plan
--------------------------------------------------------------
Specialty Products Holding Corp. and Bondex International, Inc.,
filed early this month an amended version to their proposed joint
plan of reorganization.
A copy of the First Amended Plan of Reorganization filed
Nov. 1, 2013, is available for free at:
http://bankrupt.com/misc/Specialty_Bondex_1st_Amended_Plan.pdf
The Debtors' Plan provides for an asbestos trust to be established
and funded with cash to pay present and future asbestos-related
claims. The funding for the trust will be provided by SPHC,
Bondex and their ultimate parent, RPM International Inc.
Because the unsecured creditors may be impaired under this Plan,
and the asbestos personal injury claimants may also be determined
to be impaired, the Debtors will solicit acceptances of the Plan
from the unsecured creditors and the asbestos personal injury
claimants.
The current iteration of the Plan contains blanks as to the
estimated recovery for holders of general unsecured claims.
Unsecured creditors will have the same percentage recovery as
current and future asbestos personal injury claimants.
Under the Plan, equity interests of RPM International Inc. in SPHC
will be reinstated.
Competing Plan
RPM International, the parent of the Debtors, has issues with
respect to a competing plan filed by asbestos personal injury
claimants for SPHC.
As reported in the Oct. 25, 2013 edition of the TCR, the Official
Committee of Asbestos Personal Injury Claimants and the
Future Claimants' Representative have proposed a Chapter 11 plan
for SPHC. The Third Amended Plan, filed Oct. 15, 2013, provides
that: (i) SPHC will be separated from non-Debtor direct or
indirect parent Bondex International; (ii) Reorganized SPHC will
be managed and/or sold for the benefit of holders of all Claims
that are not paid in Cash, subordinated, cancelled or otherwise
treated pursuant to the Plan; (iii) all of SPHC's causes of action
will survive; (iv) Asbestos PI Trust Claims against SPHC will be
channeled to an Asbestos PI Trust; and (v) current SPHC equity
interests will be cancelled, annulled, and extinguished.
RPM says that notwithstanding the latest changes to the Plan,
"numerous deficiencies" continue to pervade the Third Amended Plan
and the accompanying disclosure statement.
RPM notes that while the Asbestos Claimants' Third Amended Plan is
a plan of reorganization only for SPHC, it provides for
distributions to holders of asbestos claims against Bondex and
other entities that are merely alleged liabilities of SPHC, and
not allowed claims, pari passu with the actual asbestos
liabilities of SPHC.
RPM says that the disclosure statement should not be approved
because the Plan itself is patently unconfirmable because, among
other things:
-- It does not satisfy the Bankruptcy Code's requirements for
specifying the treatment of each class of impaired claims.
-- It violates the Code's requirement that only substantially
similar claims may be placed in the same class by putting claims
against Bondex and other entities that are merely alleged
liabilities of SPHC in the same class with the actual asbestos
liabilities of SPHC.
-- It discriminates unfairly by providing nothing whatsoever to
International on account of its equity interest in SPHC while
using that equity interest to pay claims against Bondex and other
entities that are merely alleged liabilities of SPHC, rather than
allowed claims against SPHC.
RPM is represented by:
Robert J. Dehney, Esq.
Gregory W. Werkheiser, Esq.
Curtis S. Miller, Esq.
Justin Kirk Houser, Esq.
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
1201 North Market Street, 16th Floor
P.O. Box 1347
Wilmington, DE 19899-1347
Tel: (302) 658-9200
Fax: (302) 658-3989
E-mail: rdehney@mnat.com
gwerkheiser@mnat.com
cmiller@mnat.com
jhouser@mnat.com
- and -
Robinson B. Lacy, Esq.
Mark F. Rosenberg, Esq.
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498
Tel: (212) 558-3879
Fax: (212) 291-9088
E-mail: lacyr@sullcrom.com
rosenbergm@sullcrom.com
About Specialty Products
Cleveland, Ohio-based Specialty Products Holdings Corp., aka RPM,
Inc., is a wholly owned subsidiary of RPM International Inc. The
Company is the holding company parent of Bondex International,
Inc., and the direct or indirect parent of certain additional
domestic and foreign subsidiaries. The Company claims to be a
leading manufacturer, distributor and seller of various specialty
chemical product lines, including exterior insulating finishing
systems, powder coatings, fluorescent colorants and pigments,
cleaning and protection products, fuel additives, wood treatments
and coatings and sealants, in both the industrial and consumer
markets.
The Company filed for Chapter 11 bankruptcy protection (Bankr. D.
Del. Case No. 10-11780) on May 31, 2010. Gregory M. Gordon, Esq.,
Dan B. Prieto, Esq., and Robert J. Jud, Esq., at Jones Day, serve
as bankruptcy counsel. Daniel J. DeFranceschi, Esq., and Zachary
I. Shapiro, Esq., at Richards Layton & Finger, serve as co-
counsel. Logan and Company is the Company's claims and notice
agent. The Company estimated its assets and debts at $100 million
to $500 million.
The Company's affiliate, Bondex International, Inc., filed a
separate Chapter 11 petition on May 31, 2010 (Case No. 10-11779),
estimating its assets and debts at $100 million to $500 million.
On May 20, 2013, the Bankruptcy Court entered an order estimating
the amount of the Debtors' asbestos liabilities, and a related
memorandum opinion in support of the estimation order. The
Bankruptcy Court estimated the current and future asbestos claims
associated with Bondex International, Inc. and Specialty Products
Holding at approximately $1.17 billion. The estimation hearing
represents one step in the legal process in helping to determine
the amount of potential funding for a 524(g) asbestos trust.
ASBESTOS UPDATE: Plaintiff Sought Production of Execs at Trial
--------------------------------------------------------------
Heather Isringhausen Gvillo, writing for The Madison-St. Clair
Record, reported that Madison County Associate Judge Tom Chapman
on Nov. 6 settled a man's 2012 asbestos lawsuit set to go to trial
after the plaintiff filed a notice to compel more than 50
defendant companies to provide their CEOs and CFOs to testify at
trial.
Plaintiff William Costello filed the notice on Oct. 21 compelling
the appearance of witnesses at trial docketed for Nov. 4.
Costello's attorney Ted Gianaris of the Simmons firm made the
argument pursuant to Supreme Court Rules 237(b) asking that the
executives appear at trial as well as "person or persons verifying
each set of interrogatory answers, responses to requests for
production and responses to requests to admit ever filed."
According to the asbestos complaint filed on Nov. 9, 2012,
Costello claimed mesothelioma as a result of his exposure to and
inhalation of asbestos fibers between the years 1996 and 1999
while he worked as a maintenance man at various locations. He
claimed the products containing asbestos fibers were manufactured,
sold, distributed or installed by the various defendants, and that
they should have anticipated the dangers of working with such
products.
The defendants were accused of including asbestos in their
products regardless of the dangers it presented, including
asbestos when they should have known the fibers would have a toxic
and highly deleterious effect on people's health, failing to use
adequate substitutes for the asbestos products, failing to provide
proper warnings about the asbestos dangers and failing to instruct
employees on how to safely work around the products.
Costello claimed he was unaware of the extent of the dangers
working with asbestos presented.
"Plaintiff remained ignorant and uninformed of the hazards of
asbestos, failed to take precautions and was thereby exposed to,
inhaled, ingested or otherwise absorbed asbestos fibers, causing
him to develop the asbestos disease specified herein," the suit
stated.
Costello accused the defendants of willful and wanton conduct for
having a reckless disregard for the safety of the plaintiff. He
also claimed the defendants conducted in negligent spoliation of
evidence, arguing that documents identifying the asbestos-
containing products and the work the plaintiff did, among others,
were reasonably considered evidence.
He argued that defendants "breached their duty to preserve said
material evidence by destroying and otherwise disposing of said
documents and information, at a time when they and each of them
knew or should have known that the same constituted material
evidence in potential civil litigation," the suit stated.
Madison County Circuit Court case number 12-L-1840.
ASBESTOS UPDATE: Fibro to be Removed From Jesuit Residence
----------------------------------------------------------
Rob Gebelhoff, writing for The Marquette Tribune, reported that
removal of asbestos at the Jesuit Residence on Wisconsin Avenue
will begin as part of a restoration process to repair rooms that
were flooded by a burst pipe during the evening of Oct. 28.
Belfor Property Restoration was contracted to complete the
repairs. Tom Paprocki, an estimator at Belfor, said the asbestos
removal will be performed according to guidelines set by the
Department of Natural Resources, the Occupational Safety and
Health Administration and the Environmental Protection Agency.
"The process will not pose any health risks to the residents,"
Paprocki said.
Paprocki said there is a high chance that the Jesuit Resident also
has lead paint that will also be removed, along with the asbestos.
The National Cancer Institute reported that regular exposure to
asbestos increases the risk of serious illnesses, such as
mesothelioma and lung cancer. Everyone is exposed to small of
asbestos sometime in their life, as it is a common natural
mineral.
Asbestos was used widely since the late 1800s by the shipbuilding,
automotive and shipbuilding industries. The material is a cheap
fiber that is resistant to heat, fire, chemicals and does not
conduct electricity, according to the National Cancer Institute.
The Rev. Gerald Goetz, S.J., Minister at the Jesuit Residence,
said the restorations have already begun as some floors affected
by the flooding have been torn out.
The pipe burst in the fourth floor in the Jesuit Residence at
approximately 11:30 p.m. Oct. 28, flooding the fourth floor and
all the levels beneath it with about 2 inches of water, including
the basement.
Three Jesuits were displaced from their apartments and three
offices were flooded as a result of the incident. The displaced
Jesuits will temporarily stay in guest rooms in the building.
Goetz estimated that restorations to the building will take about
a month to complete. Goetz also said damage estimates from the
flooding are still unknown.
The Jesuit Residence building is 97 years old, making it the
second oldest building on Marquette's campus. It was bought by the
university in 1962 and became the Jesuit Residence after
renovations in 1973.
ASBESTOS UPDATE: Saskatchewan Province Fibro Registry Mandatory
---------------------------------------------------------------
CJME.com reported that the Saskatchewan government is marking the
death of a man who advocated for asbestos safety measures by
announcing a new measure making asbestos reporting mandatory.
The government has proclaimed the new law, which is named after
Howard Willems. It makes it mandatory for crown corporations,
school districts, health regions, and the provincial government to
ensure their buildings are listed on the province's on-line
registry if there is asbestos present anywhere in their
facilities.
"We're the first (province) in Canada that has mandated a registry
and the first one that has brought it up," said labour relations
and workplace safety minister Don Morgan.
He gives Willems the credit for making it happen. He died one year
ago from cancer; it was caused by inhaling asbestos, something
that came with the territory in his job as a food inspector for
the federal government. He spent years inspecting old dairy and
honey facilities, which often used asbestos in building materials.
Before his death he formed the Saskatchewan Asbestos Disease
Awareness Organization, aiming to have the government create a
public registry of buildings with asbestos in them.
On the anniversary of his stepfather's dead Jesse Todd was there
to see the new measure proclaimed.
"It's a tremendous day," he told reporters. "It's very gratifying
to see it pass. It's been a long year."
Todd stressed that this is "Howard's legacy, hoping that the
recognition of the right to know for workers will help keep them
safe.
ASBESTOS UPDATE: Workers at Audubon School Begin Fibro Removal
--------------------------------------------------------------
Jonathan Ketz, writing for WQAD8.com, reported that Rock Island-
Milan, Illinois, school officials say that crews have began the
removal. There were about five cars seen inside the fence. The
fence has been put up to get the building ready for demolition.
On October 22, the school board voted to demolish the building.
District administrators said they had not not received a "formal
bid" on the property from Joe Lemon, at that time.
Since then, former Rock Island man Donald Lind has started a
petition to try saving the school. District officials would not
comment on the petition. They are moving on with the demolition
process as planned, so far.
Asbestos removal should take two to three weeks. The building is
scheduled to be demolished shortly after that.
ASBESTOS UPDATE: Rasche Hall Undergoing Fibro Abatement
-------------------------------------------------------
Melissa Draudt, writing for Collegiate Times, reported that Rasche
Hall in Virginia Tech is the first of two Upper Quad buildings
being torn down to make room for new state-of-the-art housing
facilities for the Corps of Cadets, but their next obstacle is
alleviating the building of asbestos.
According to a description from the department of University
Design and Construction, the Upper Quad Residential Facilities
Project has plans to demolish Rasche Hall and Brodie Hall,
replacing them with new residence halls.
After Rasche Hall closed over the summer, the area around the
building was fenced off. Currently, the project is in the process
of asbestos abatement in Rasche Hall, which was built in 1894. The
complicated and precise process is being supervised by the EPA.
David Rettig, safety and compliance officer for the department of
Housing and Residence Life, confirmed the presence of asbestos in
Rasche Hall, but emphasized the fact that it would not have been a
danger to students who previously lived there.
"(It's) in the pipe chases that were not accessible to students
and in some mechanical spaces," Rettig said.
According to Zack Adams, assistant director for Environmental
Health and Safety, asbestos removal for construction projects on
campus is taken very seriously.
"We have a consultant on site at all times monitoring work to make
sure it's being done correctly and safely," said Adams. "We do
take every precaution."
Adams said that they are required to close the work area if
there's any chance of fibers being released into the air.
However, Adams assures that the process of handling asbestos is
common in buildings that have been around as long as Rasche and
Brodie have.
"It's a well practiced science," said Adams. "This is not
unusual."
Ferguson estimates that the asbestos abatement in Rasche will be
completed at the end of December.
With the abatement done, the demolition of Rasche can begin
followed by waste removal and construction.
Rasche Hall and Brodie Hall are two of the oldest buildings on
Tech's campus, following Lane Hall, leaving advocates for the
preservation of historic places displeased with the decision to
take them down.
Inside both buildings, as a tradition of the Corps, walls are
decorated with large-scale murals done by past and present
students, representing residents who lived in these buildings
throughout the years.
Commandant of the Corps Gen. Randal Fullhart explained that the
alumni members of the Corps are not only okay with the project --
they are excited, according to Bruce Ferguson, the representative
project manager.
"When he meets with alumni on a regular basis and shows them
pictures of what the new buildings will look like, he says they
all compliment him on what a fine project it is," said Ferguson.
"Everything that the General has told me would give me no
indication that there's a groundswell of frustration or
disappointment (with the project)."
Though Lane Hall, built in 1888, was placed on the National
Registry of Historic Sites earlier this year, the other buildings
on the Upper Quad will not see this recognition.
While plans for future reconstruction of Rasche Hall and Brodie
Hall are in the works, Thomas Hall and Monteith Hall are also to
be torn down in the future, with no plans of future reconstruction
yet made.
According to Ferguson, construction of Rasche Hall will be done in
the summer of 2015, while he expects the timeline of demolition
and reconstruction of Brodie Hall to begin after reoccupation of
Rasche in August of 2015.
All work on Rasche Hall and Brodie Hall is expected to be done by
the fall of 2016.
With an estimated combined square footage of 190,000, the new
buildings will provide approximately 1,000 beds for members of the
Corps, an increase from the combined 590 beds in the buildings
today.
The buildings are designed to the newest standards in terms of
quality and construction, and will be up to the latest codes of
fire safety and energy efficiency.
The project is designed to meet LEED Silver certification
standards by the U.S. Green Building Council. West Ambler
Johnston, which was overseen by the same architect and
construction manager, was recently LEED Silver certified.
Ferguson believes the buildings "will allow the Corps to grow in
size" and be a space for students to enjoy.
ASBESTOS UPDATE: Fibro Scare in Quenbeyan as Salvos Dumped On
-------------------------------------------------------------
Andrew Johnston, writing for The Queanbeyan Age, reported that the
Salvation Army says enough is enough after an asbestos dumping
scare at the charity's Queanbeyan store. And Salvos is calling on
Queanbeyan City Council to assist with the installation of
security cameras to help combat a growing trend of illegal
dumping.
The Queanbeyan Fire Brigade and Council clean up specialists were
called to the Crawford Street shop after a large pile of garbage,
burnt metal and discarded timber was dumped at the back door.
Fears the pile of refuse contained asbestos forced an expensive
clean-up operation that resulted in a section of the Morisset
Street carpark being closed off for more than four hours.
While later analysis of the material did not reveal the presence
of asbestos, Salvos staff and clean-up crews were still left to
deal with a mountainous pile of debris.
And it's not the first time staff members at the charity shop have
had to deal with illegal dumping in recent weeks. Area manager
Tony O'Connell confirmed the problem was becoming an ever more
serious issue.
"It's just got out of control," Mr O'Connell said. "People should
have more brains. I really mean that.
"General dumping of a bit of this and a bit of that happens at all
our stores but when stuff like this starts to happen, it's
ridiculous. It's endangering everybody's health and wellbeing.
"It's got to the point where rather than going to the tip or
paying to get rid of their garbage, they're dumping it on our
doorstep.
"It's something that's been going on in Queanbeyan for ages and
it's been getting worse all of a sudden. I don't know why but the
last several weeks have been particularly bad."
Mr O'Connell said the installation of security cameras outside the
store would be the most effective means of preventing future
dumping and catching those responsible.
He said a similar move at the organisation's Jamison store in the
ACT had significantly cut down on the amount of junk being left
for the charity to deal with.
"Cameras are the best way to go," he said.
"I know a lot of councils in other areas have come on board and
installed cameras outside Salvos stores to try and protect the
public.
"If Council can come to the party and help us [in installing
cameras] so we can identify the people that are doing this -it'd
be best for everyone."
A Council spokesperson said they had yet to be approached by the
Salvation Army in relation to installing cameras and is not
currently considering the idea.
ASBESTOS UPDATE: Fibro Risk as LDF Board Wrongly Classified
-----------------------------------------------------------
Tuck Thompson, writing for The Courier-Mail, reported that State
government guidelines have reclassified low-density fibre board,
LDB, from a high-risk friable asbestos product to a bonded one,
making it far cheaper to remove but, industry groups say, ignoring
how much more dangerous it is to handle.
Low-density fibre board -- classified friable in NSW -- and other
states breaks apart easily when disturbed, releasing dangerous
fibres. LDB was used extensively throughout Queensland before
1983.
Hundreds of thousands of homes and buildings, including thousands
of schools and public buildings, have LDB.
Asbestosis victim and Asbestos Related Disease Support Society
secretary Ray Colbert said the Government was acting against long-
standing policies.
Requests for interviews with Attorney-General Jarrod Bleijie and
Workplace Health and Safety Queensland policy adviser Paul
Goldsbrough were declined.
A spokeswoman for Mr Bleijie said the Minister took managing
asbestos "very seriously", was consulting stakeholders, and wanted
policy consistent with other states.
Reclassification makes removing LDB cheaper by dropping most of
the worksite safeguards. It also makes it easier for low-cost
contractors to undercut experienced asbestos firms on tenders.
The State Government says the guidelines were changed in error and
would be corrected.
Andrew Ramsey, workplace health and safety co-ordinator for the
Queensland CFMEU, said "watering down" asbestos regulations was
"just crazy".
Michael Shepherd, president of the Asbestos Industry Association,
said his members were blindsided when the classification changed.
Trevor Lyons, president of DRACA, the Demolishers, Recyclers &
Asbestos Contractors Association said Queensland had no reason to
treat the removal of LDB differently from other states.
"A lot of that LDB is very easy to crumble and release fibres.
There should be no variations of classification from state to
state," he said. "They already deemed it dangerous. They can't
backtrack now."
Family breathing easier now
West End homeowners Keith and Fiona Cardew's renovation of a pre-
World War II home proved a costly exercise last year when they
discovered large amounts of low-density asbestos fibre board,
which needed careful removal.
The couple said they were glad they didn't cut corners with the
work, and are breathing easier knowing experts contained the
dangerous asbestos fibres and used special equipment to eliminate
them.
"The price hurt, but I'm glad we did it the way we did," Mr Cardew
said. "We're very happy with the way it turned out."
The family is shocked to learn the Government has lowered the
standards for removing LDB after reclassifying it from friable to
non-friable despite its tendency to rip and crumble easily,
disbursing fibres.
"I would have thought they would have maintained those standards
for the sake of public health," he said.
Total Asbestos Removal and Demolition supervisor Somah Thong, who
helped the Cardews, is concerned that asbestos removal sites are
being contaminated by companies that aren't trained and equipped
to remove LDB because the Government changed the rules.
"The Government says there wasn't a policy change: it was
incorrect on its website."
ASBESTOS UPDATE: Fibro Found During Key Briscayne Bridge Repair
---------------------------------------------------------------
Patricia Mazzei, writing for Miami Herald, reported that a
contractor repairing the bridge that connects Virginia Key to Key
Biscayne has found asbestos on a tube containing electrical wiring
for street lights -- an unforeseen condition that could delay the
project's completion.
Kiewit Infrastructure found the asbestos when it demolished a
portion of the Bear Cut Bridge's roadway in August, according to a
memo Miami-Dade Mayor Carlos Gimenez sent county commissioners.
The company has been removing and disposing of the tainted
material.
The extra work could push back the repairs by several weeks,
according to the memo. Kiewit has claimed a 36-day delay, though
the county is still negotiating that number.
"Everything possible is being explored to keep the project on an
expedited track," the memo says.
As part of bonds scheduled for commission approval in December,
$750,000 in funding would be set aside to handle the asbestos. The
final costs of the fix are still being negotiated.
The $34 million in bonds to pay for the repairs would be backed by
Rickenbacker Causeway tolls, which commissioners increased to
cover the project costs.
The 69-year-old bridge has been partially shut down since January
after an inspection revealed corroded beams beneath the older half
of the structure.
Repairs are supposed to be completed by February, in time for the
annual Sony Open tennis tournament.
ASBESTOS UPDATE: Fired Immigrants Share Horrifying Work Stories
---------------------------------------------------------------
Josh Eidelson, writing for the SALON, reported that a group of
immigrants allege their boss wielded their status as a weapon when
they stood up to extreme abuses: from hanging from the top of a
four-story building without scaffolding, to removing asbestos
without gloves.
New Jersey Senator Robert Menendez told Salon those allegations
illustrate the urgency of passing an immigration overhaul.
"Clearly, what happens is: When someone is undocumented they can
be exploited -- and they frequently are," Menendez said following
a press event with the workers. "And once they try to organize in
order to get better wages, working conditions, they immediately
are fired. And sometimes, even worse, they are told they are being
reported to immigration as a way to keep them subjected to the
discrimination and exploitation." He added that such retaliation
"hurts all workers" and "presses down wages for all in that
universe."
The four immigrants who joined Menendez were fired last year by
Benjamin H. Realty, a New Jersey apartment company, during a union
organizing drive by the Laborers International Union of North
America (LIUNA). They told Salon that before their firings, the
company had directed them to do unsafe work. "The worst thing was
the asbestos," said Isaac Hernandez. He said he was "100%
breathing this stuff in" in a tight crawl space without warning or
proper equipment, and "we went with our clothes home, so not only
were we exposed -- our families were exposed."
His co-worker Daniel Quintana told Salon that years back he
removed asbestos with bare hands after "the supervisor said, 'No,
this is nothing.'" Another worker, Rodolfo Cax, described doing
brick pointing on the mortar of a four-story building without a
scaffold or harness. He said he was "hanging" from the top with
co-workers holding his legs, and a supervisor told him "nothing's
going to happen -- we've got you." "I was scared doing this," Cax
told Salon, "but we've got no choice . . . If I don't do this,
he'll fire me." His co-worker Fabian Londono Taborda said, "They
say if you don't do, we'll find someone else."
LIUNA contends that because of the workers' involvement in the
union effort, management seized on their immigration status as a
reason to fire them less than two weeks before a November 2012
unionization election. "When they found out that there was going
to be an election and there was an election date, that's when it
all went down," said Hernandez. He told Salon that he provided an
already-expired work permit when he was first hired eight years
earlier, and the company paid him by personal check, but "when I
got fired, that's the first thing they showed me" -- that the
permit had been expired. "They told us that if we weren't able to
work in the US, that they would have to evict us from where we
lived" in employer-owned housing, added Hernandez. (According to
LIUNA, when the remaining workers voted on unionization, the vote
was 6-6, plus one challenged ballot that was revealed in June to
be a yes; following a legal challenge on the grounds that the NLRB
lacked a quorum last summer, the Labor Board this week declared
that the union won last November's election.)
Benjamin H. Realty denied the workers' allegations. The company's
labor relations attorney, Steven Horowitz, told Salon over e-mail,
"The fact that the Union is now seeking to pressure this employer
through the media further demonstrates the lack of merit to their
cause." He accused LIUNA of employing "lies and deception," and
said, "With regards to the Safety allegations, my clients deny
these acts ever occurred, or that any employee was ever so
directed." Horowitz noted that the company had reached a
settlement with the National Labor Relations Board on workers'
allegations of illegal termination, and said that "It was
expressly stated in the Settlement that Benjamin H. Realty denied
any violation of the Labor Laws of this country."
According to a letter from the NLRB provided to Salon by LIUNA,
the company agreed to participate in a government-provided
webinar; to post a workplace notice making commitments including
"WE WILL NOT subscribe to or use the Federal Government's E-Verify
system to re-verify your documented status because you support the
Laborers Union or any other union"; and to reinstate the four
workers if they provide immigration documents "in a reasonable
time" that allow the company to legally employ them.
Senator Menendez, LIUNA, and the National Day Labor Organizing
Network hailed a further move by the NLRB: the Labor Board has
certified the four workers for "U visas," a special category of
visa allowing immigrants who've experienced serious crimes to stay
in the country. Such visas have nearly never been issued due to
labor abuses. The group the Laborers call "the Benjamin H. Realty
Four" are the first to be certified for U visas by the NLRB
itself, a precedent Menendez told Salon was "very, very
significant." As Salon first reported, a group of guest workers
who faced alleged forced labor at the (since suspended) Wal-Mart
supplier CJ's Seafood were certified for U visas by the Department
of Justice last year.
Expanding the use of U visas to protect immigrants who are
punished for organizing is one of the reforms in Senator
Menendez's POWER Act, a version of which appears in the
immigration bill passed by the Senate in July. Menendez told Salon
the Benjamin H. Realty workers' allegations offered "a perfect
example of the type of reason why my legislation is so critically
important." Menendez argued the bill "would go an enormous way to
being able to ensure that discrimination and exploitation couldn't
take place in the country without a remedy." He called protections
for immigrant workers "enormously important" in improving labor
rights for workers more broadly in the US, a goal he argued had
also been advanced by the Senate finally confirming a general
counsel and a full complement of members to the National Labor
Relations Board.
Labor groups often argue that the NLRB's slow timeline and limited
remedies -- the worst penalty a company can pay for illegally
firing an activist worker is generally bringing them back to work
with back-pay -- make flouting the law and purging activists a
sound business investment. According to a study published by the
progressive Economic Policy Institute in 2009, allegedly illegal
terminations of union supporters mark a third of government-
supervised unionization elections. Advocates argue that current
immigration law gives bosses a particularly acute power to repress
organizing by undocumented immigrants or guest workers, As I
reported in September, a group of Jamaican guest workers accused
the cleaning company they worked for of writing them paychecks for
zero dollars and zero cents -- and stapling letters to checks
threatening them with deportation.
The Senate bill already falls short of some advocates' hopes.
Congressman Luis Gutierrez, perhaps the House's most outspoken
immigration reformer, told Salon last month he'd "already seen
conditions that I thought would never be agreed to, agreed to" in
the Senate, though he'd still "vote for that bill in a heartbeat."
The AFL-CIO's Ana Avenda¤o told me in July that "there can be no
further erosion of rights, and we're protecting that as it goes to
the House." The Senate bill's path to citizenship includes a near-
continuous employment requirement and a criminal conviction
exclusion, as well as a requirement companies employ the status-
checking program E-Verify. Asked whether he was concerned that
such provisions would leave a subset of immigrants more vulnerable
to employer abuse than before, Menendez told Salon it was "at the
extreme of thought" to think that "any group of workers would be
worse off with the legislation than without it, because they have
no rights whatsoever right now."
Even with those concessions, comprehensive immigration reform
faces a steep climb in the Republican House. "I do believe that
something's going to give," said Menendez, "because the politics
of this doesn't work for the Republicans." He described "growing
pressures within the House to ultimately allow something to
happen, whether it's a vote on the Senate bill" or "some piecemeal
that at least would get us to a conference" committee tasked with
reconciling the two bodies' bills. He said continuous employment
was one of the issues "we dealt with to some degree and will
continue to deal with, to perfect, as we get to the final piece of
legislation."
Asked if he would accept an ultimate bill that was more
restrictive or punitive than the Senate's, Menendez told Salon
that he was "the strongest advocate" within the Senate's "Gang of
Eight" for a pathway to citizenship, and for ensuring "the pathway
was viable in being able to be achieved by anyone, even if it was
a bit arduous . . . I'm not about to give up on that core
principle." He said that unlike those who "would prefer the ideal
which would never become law," he would "keep an open mind as to
what any potential negotiation would be. But there are certain
core principles that I'm not going to equivocate, and the pathway
is one."
Isaac Hernandez told Salon that he was glad he'd chosen to
organize. "Before that, everything we did, or anything that
happened to us, nobody -- we didn't have a voice," he said. "Or we
didn't think that anybody would hear us."
ASBESTOS UPDATE: Fibro Hot Spots Found in Central Christchurch
--------------------------------------------------------------
Olivia Carville, writing for The Press, reported that asbestos has
been found on the central Christchurch property earmarked for the
new bus interchange.
A Canterbury Earthquake Recovery Authority spokesman said initial
test results show three asbestos "hot spots" in the soil of the
unoccupied Crown-owned property between Lichfield St and Struthers
Lane.
Buildings on the site had already been demolished and the land was
unoccupied following the earthquakes.
The preliminary test results were obtained by Cera.
To prevent exposure to the public, Cera has contained the area by
erecting fences and using sprinklers to suppress the dust.
"Further testing is being carried out to provide more information
on the presence of asbestos, and this will lead to a strategy to
remediate the land," the spokesman said.
A contract has been awarded for the demolition of the adjoining
former Christchurch City Council Civic Offices on Tuam St. Any
hazardous material from the building would be removed before
demolition was approved, he said.
ASBESTOS UPDATE: Increasing Use of Deadly Dust in Asia
------------------------------------------------------
Amado de Jesus, writing for The Philippine Daily Inquirer,
reported that according to the World Health Organization, about
100,000 workers die annually from asbestos-related diseases out of
125 million people who are exposed to asbestos in the workplace.
What is of special concern to us is that based on a survey by the
US Geological Survey, the use of asbestos is on the rise in the
construction industry in Asia and the Middle East. With the
ongoing construction boom in the Philippines, it is a vital
concern for many of us, just how much asbestos is being installed
in our buildings and homes.
Our construction workers are particularly susceptible to the
dangers of being exposed to asbestos. Many of them work in
substandard conditions with no protective masks or goggles or
training. When they get sick, they do not get company or
government benefits.
What is asbestos?
Asbestos is a substance that was once considered a "miracle
mineral" when it was used in the building industry in the 1800s.
At that time, asbestos was found to be readily available and
inexpensive making it an ideal substance for household
construction offering many benefits with no drawbacks. It was very
effective for thermal insulation, acoustic and moisture control, a
nd it made cement strong. It was mixed into paints, adhesives,
clay, metal ware and even appliances. It filled many needs in
various ways.
Why is asbestos harmful?
Inhaling asbestos fibers increases the risk of developing lung-
cancer-causing asbestosis or scarring of the lungs. This may lead
to the development of mesothelioma, a rare cancer that afflicts
people exposed to asbestos. It can develop decades after the
asbestos exposure.
This is what happened to the emergency service workers during the
destruction of the World Trade Center in New York on 9/11 when
more than 1,000 tons of asbestos were released into the air. The
unusually high death rate of emergency service workers from cancer
since the disaster is linked to their inhalation of asbestos and
other toxic elements.
Ban asbestos campaign
Almost 20 years ago, a global campaign was launched to ban
asbestos. It addressed marketing campaigns, availability of safer
substitutes, the need to protect workers and end-users from
asbestos exposure and the rights of those affected by asbestos-
related injuries.
The European Union, Australia, Japan, South Korea and other
countries have outlawed it, according to International Ban
Asbestos Secretariat. Several countries including Japan and South
Korea banned asbestos after they saw the number deaths rise.
Despite the ban, asbestos continues to be a part of the
construction and manufacturing industries.
Some sectors are saying that if one follows the proper procedures,
the health effects are trivial, if any. However the WHO says that
all forms of asbestos are carcinogenic and potentially fatal,
depending on exposure.
What to do about it
If your house was built in the 1970s, chances are that it may
contain asbestos. If you have asbestos in your house that is in
good condition, the best thing to do is to leave it alone. Avoid
disturbing the asbestos material if you have to do any renovation
works. Material in good condition will not release asbestos
fibers.
Look for signs of wear or damage like cracks, abrasions or water
damage. Material that is disturbed by hitting, rubbing or handling
may release asbestos fibers.
Prevent or limit access to the area to prevent touching or
disturbing it.
If asbestos is found in your house, seal the material by treating
it with a sealant that binds the asbestos fibers together so that
no fibers are released. This is done by asbestos professionals.
Another way is to cover the asbestos by a stable material to
prevent release of fibers.
According to the United States Environmental Protection Agency,
some products that may contain asbestos are cement pipes, vinyl
sheet flooring, acoustical plaster, ceiling tiles and lay-in
panels, textured paints and coatings, spray-applied insulation,
fire-proofing materials, laboratory gloves, fire blankets,
elevator brake shoes, air-conditioning duct insulation and wall
coverings.
ASBESTOS UPDATE: Removal Contractor Found in Contempt of Court
--------------------------------------------------------------
Renee Bernard, writing for News1130, reported that the owner of a
local asbestos removal company has been found in contempt of
court.
Mike Singh, who runs Seattle Environmental and Skylite Building
Maintenance, has 300 WorkSafe BC citations against him.
Worksafe BC took Singh to court because he also owes more than
$300,000 in fines.
Lee Loftus with the BC Insulators Union Local 118 points out
asbestos removal is extremely hazardous for workers and says Singh
has to clean up his act.
"Court heard that there were violations of clearance letters
saying that workplaces were free of asbestos when they weren't.
There is evidence that he was doctoring lab reports that said
material didn't contain asbestos when it did," he explains.
"He has virtually told the Workers' Compensation Board to take a
hike, that he won't pay attention to what it does or what it
says."
The BC Supreme Court has fined Singh $15,000.
Last year, another local asbestos contractor, Arthur Moore, was
jailed for exposing his workers to asbestos.
ASBESTOS UPDATE: Politician With Cancer Sues Over Fibro
-------------------------------------------------------
Tara Palmeri, writing for New York Post, reported that Assembly
Speaker Sheldon Silver's law firm has filed a class-action suit on
behalf of Rep. Carolyn McCarthy, accusing more than 70 companies
of potentially causing the Long Island congresswoman to develop
lung cancer from asbestos.
But the bizarre Weitz & Luxenberg suit fails to mention that the
69-year-old Democrat smoked heavily for 40 years -- and that she
never actually worked with the cancer-causing substance.
Instead, McCarthy's attorney, Daniel Blouin, claims she came in
contact with asbestos in her youth when her father and brothers
worked as boiler makers in Navy yards and powerhouses.
He says toxic fibers attached to their clothing.
The complaint names more than 70 companies for potentially
exposing her to asbestos -- including Goodyear Tire, Con Ed and
Pfizer.
"Ms. McCarthy never directly worked with asbestos products
herself, although she now finds herself a victim of this deadly
carcinogen whose health effects were well known by the
manufacturers and suppliers of asbestos products for decades
before Ms. McCarthy was ever exposed," Blouin said in an e-mail to
The Post.
Blouin never mentions the pol's hazardous habit in the papers
filed in Manhattan Supreme Court, but he admits smoking was likely
a contributing factor.
"It has been conclusively proven that cigarette smoking and
asbestos exposure act synergistically to cause lung cancer,"
Blouin said.
"There is no doubt, scientifically, that in addition to exposure
to asbestos dust, smoking played a role."
He says the rate of lung cancer in smokers who also were exposed
to asbestos has been shown to be 4,000 percent or more higher than
the rate in smokers who were not exposed to asbestos.
The home-heating provider Lennox responded to the papers, claiming
McCarthy's "pre-existing medical histories" may have caused her
illness.
McCarthy is such an avid smoker that she's known around Capitol
Hill for taking breaks between votes.
The 16-year-veteran of Congress took a medical leave from her post
in June to get treatment at Memorial Sloan-Kettering Cancer
Center.
Although she announced that she was diagnosed with a "treatable
form of cancer," several members of McCarthy's staff have resigned
-- including her chief of staff.
But McCarthy says she's in good spirits.
"My doctor at Memorial Sloan-Kettering Cancer Center, where I'll
receive my treatment, has told me that I begin my treatment in
good physical health and that he looks forward to my return to
work after I recover," she said in a statement last June."I am a
fighter, as many people know, and I am committed to beating this
latest challenge in my life."
McCarthy was called for a discovery deposition.
A spokesperson for her office didn't return phone calls.
ASBESTOS UPDATE: Fibro Findings in Jersey Hotels "Staggering"
-------------------------------------------------------------
Tamsin Eames, writing for Channel Online, reported that nine
hotels in Jersey, in the United Kingdom, were found to have no
adequate arrangements in place for managing the risk of asbestos
during a review held in 2012.
The Island's health and safety inspectorate visited a total of 24
hotels which contained asbestos building materials.
The inspectorate said in some cases complacency to the risk of
asbestos was "staggering".
Asbestos is the biggest occupational killer with about 4 and a
half thousand people dying from Asbestos related illnesses in the
UK each year.
Health and Safety Inspectorate, Colin Myers said, "The hotels that
we looked at, some were ok but some didn't have what we call
asbestos management plan. They had no register of asbestos in the
premisis so anyone going in to the premisis could have disturbed
the asbestos."
The hotels -- which have not been named -- have since improved
standards and now meet regulations. But owners are being warned if
they are complacent in future and put their guests at risk, they
could be prosecuted.
ASBESTOS UPDATE: Dumped Fibro Left at Side of Hog's Back
--------------------------------------------------------
Get Surrey reported that a pile of asbestos was left in the road
for a month, to be unsettled by traffic and storm force winds,
before being removed by a council contractor.
For a second time this year, fly tippers left the hazardous
material in East Flexford Lane where it crosses Farnham Road on
the Hog's Back.
It was first spotted on September 30 and was not dealt with by
Guildford Borough Council's contractors until October 30.
Asbestos was widely used in building work until scientists
confirmed that inhaling its fibres can lead to cancer.
The material was moved to the side by the county council's
highways department but barriers erected around it blew over and
the asbestos was still beside the road when the storm hit on
October 27.
Barbara Harrison, of East Flexford Lane, said she and her husband
rang the council numerous times to try to get the waste removed.
"It was dumped right in the middle of the road and the council
moved it to the side, and erected barriers which have now fallen
over. I spoke to the council four or five times. They say it's a
contractor and if you have got a contractor working for you they
have got to do the job. It's ridiculous."
She said she was told when she first contacted the council that
the contractors only come out on Tuesdays but several Tuesdays
passed before any action was taken.
A council spokesman said: "Fly tips on the road are usually
reported to us by Surrey County Council. This one was reported to
us by a member of the public on October 16.
"Asbestos has to be cleared by a specialist contractor and would
normally be cleared within a week. Unfortunately on this occasion
it took longer and we are now working with our contractor to see
how this can be addressed for the future."
ASBESTOS UPDATE: Fibro Removed From Winnebago County Jail
---------------------------------------------------------
Sam Jefson, writing for The Globe Gazette, reported that a crew
removed asbestos from the Winnebago County, Indiana, jail.
Workers were in the facility for four working days removing
asbestos from floor tiles in the cell area and the basement.
"With the age of the building, we knew it was something we had to
look into," said Winnebago County Sheriff Dave Peterson.
The Winnebago County jail and sheriff's office was built in 1934
and recent jail inspections have uncovered a number of problems
with the facility.
Asbestos, mold and safety and security issues are some of the
problems listed in the most recent state jail inspection report.
A law enforcement committee made up of county employees and
residents has been formed to address problems with the jail. The
group has recommended a new 22-bed facility and to not add on to
the current jail.
The committee is in the process of looking into potential sites to
build a new law enforcement center.
"Regardless of what happens to the building, the asbestos had to
be removed," said Peterson. "Even if it is torn down and made into
a parking lot."
The crew working on the project has told Peterson the tile
containing the asbestos was not hazardous in its current state.
"The prisoners and county employees were not in any danger,"
Peterson said. "Everything was sealed and in good shape."
ASBESTOS UPDATE: Coolidge to Reopen Dec. 2 After Fibro Removal
--------------------------------------------------------------
Meghin Delaney, writing for PressConnects, reported that students
and staff will return to class at Calvin Coolidge Elementary
School, in New Jersey, on Dec. 2, after being shut out of the
building for almost four months when higher-than-acceptable levels
of asbestos were discovered.
Officials informed faculty and staff of the move-in date. Letters
from the principal and district officials were sent home to
Coolidge families as well.
"I'm excited and relieved," said Mary Kay Ryan, an Endicott
resident and first-year principal of the school. Ryan's letter to
families thanks them for their patience and understanding and
states teachers and students will begin preparing for the
transition back to the school.
"The school is the heart of our East Side community and we cannot
wait to return," she wrote.
District officials are planning a transition strategy so teachers
have ample time to set up their rooms before classes resume at the
Robinson Street school, said Karry Mullins, assistant
superintendent for administration. The majority of materials had
to be replaced because of the high levels of airborne asbestos and
porous nature of the materials.
Items that were salvageable were stored on-site and are being
moved back into the building. Replacement materials are coming in
and the district expects to have everything ready by Dec. 2.
"Teachers will be ready to teach on Day One," Mullins said.
For 10-year-old Karson Walter, returning to the school will mean
the opportunity to be the "high man on the totem pole," said his
mother, Kristen Walter, a Binghamton resident and president of the
Coolidge Parent Teachers Association. Fifth-grade students are the
highest grade level offered at Coolidge and typically are role
models and leaders for other children in the school.
Karson Walter has been attending fifth grade at East Middle School
this year, after the asbestos conditions were confirmed in
Coolidge on Aug. 7. The airborne asbestos stemmed from a basement
crawlspace. Officials sealed off the Robinson Street building that
day.
"I think all the students are really looking forward to getting
back," said Kristen Walter, who works as a breakfast monitor for
the fifth-grade students while they are at East Middle. "I'm glad
to know he'll graduate fifth grade from his elementary school."
The problem at Calvin Coolidge emerged July 19 when certified
inspectors discovered asbestos had been disturbed in a basement
crawl space.
On July 30, a laboratory confirmed one sample taken from the crawl
space was asbestos. A second sample did not test positive for
asbestos. The first positive sample prompted further testing of
the air to determine whether it posed a risk to people in other
parts of the building.
These air samples, which are the best way to gauge the extent of
exposure and health risks, came back at unsafe levels Aug. 7.
A safe level of asbestos is considered below 70 structures per
square millimeter, according to federal regulations. The first
floor air samples at Calvin Coolidge measured at 96.97 structures
per square millimeter; the second floor measured at 87.87.
Sunstream Corp., a Binghamton-based environmental contracting
company, began removing asbestos from the building Aug. 17, after
the state Department of Labor approved the district's plan to
address the problem. Jennings Environmental Management is
monitoring the air levels throughout the project.
Students and staff were separated into three sections for cleanup.
Initially, the district did not plan to clean up the crawl space
area immediately, instead planning to keep the area sealed until
the school was not occupied during the summer. But officials
decided during the course of the clean up to address the crawl
space as well.
Contaminated dirt and debris was removed, and new concrete was
poured over a membrane on the crawl space floor, according to the
district letter sent home to parents. The entire crawl space was
thoroughly cleaned and a coating of paint was applied to ensure
any fiber residue is encapsulated, as an extra precaution. Air
samplings have been taken in the building throughout the process,
the letter signed by Mullins states.
"All tests indicated that asbestos fibers are below detectable
limits throughout all areas of the first and second floors,"
Mullins' letter to parents states.
Until the building is ready to go, kindergarten students are
attending Theodore Roosevelt Elementary School, the closest
elementary school to Coolidge, about 1« miles away.
First-graders are at Woodrow Wilson Elementary School, about four
miles from Coolidge.
Students in grades two through four are with administrators at
Columbus School on Hawley Street, approximately two miles from
Coolidge.
Fifth-graders are attending East Middle School, about a half-mile
from Coolidge.
The past four months have been stressful for Valerie DeGennaro, a
Vestal resident and special-education teacher at Coolidge, but she
said she's overjoyed to be headed back to the school. During the
cleanup, DeGennaro and 10 special education students joined the
staff at Benjamin Franklin Elementary School, and were separated
from the rest of the Coolidge faculty and staff.
"We're ready to all be together again," she said.
ASBESTOS UPDATE: Costs to Demolish Former School Uncertain
----------------------------------------------------------
Steve Hughes, writing for Utica Observer-Dispatch, reported that
disposing of the former Roosevelt school could cost the city as
little as $689,050 -- or as much as $998,580.
Those cost estimates don't include wages for the Department of
Public Works demolition crews, special equipment required to tear
down the building and air quality monitoring costs.
The city has outlined three cost estimates, which are based on how
much asbestos-contaminated material there is. It plans to pay for
the disposal with unused Community Development Block Grant money,
said Brian Thomas, Urban and Economic Development commissioner, in
an email.
"The CDBG funds will not affect any recipients of this year's
(2013-14) money or next year's entitlement (2014-15)," he wrote.
"Instead, the funds are previous years' unexpended monies that had
been programmed for other activities, namely the city's economic
development loan program, which will be reprogrammed for the
Roosevelt school demolition debris disposal costs."
The Oneida-Herkimer Solid Waste authority is reducing its tipping
fee from $100 per ton to $80 per ton for the project with more
than 4,000 tons of asbestos-contaminated material as of Jan 1.
As for the other costs, those will come from unused capital
projects funds and the public works budget.
The air monitoring for possible asbestos will cost the city $1,500
a week, and renting a long-reach boom excavator -- a larger,
taller construction tool that will allow the city's demolition
team to tear down the three-story building -- is estimated to cost
between $6,000 and $8,000 a week.
The city still is waiting for the current renter to return the
excavator before it can begin demolition, said Public Works
Commissioner David Short.
And because Roosevelt school is considered so dangerous, no one
will be allowed inside the building before it is demolished, which
makes it unlikely any deconstruction will take place.
That fact is causing some concern in the neighborhood.
Donna DiCuffa, a Brinckerhoff Avenue resident, said she's seen
animals in the yard and is worried that the building houses plenty
of other creatures that could be hurt or killed when the walls
come down.
"I'm an animal lover and I know a lot of people around here are,"
she said. "I was walking by. It just makes me mad. This is how the
city is."
Short said the city would have an animal control officer on scene
during the demolition to handle any potential animal problems.
"We dealt with this before," he said. "When the building starts to
come down they usually scatter."
DiCuffa said that instead of affordable housing, she would rather
see a senior living center or senior housing.
"I'd even go over and work there," she said.
ASBESTOS UPDATE: Mesothelioma Death Payout for Widow
----------------------------------------------------
Eastbourne Herald reported that the widow of a Ratton school
teacher who died from exposure to asbestos during his career has
won an out of court settlement from the education authority over
his illness.
Clive Beck, who was head of history at the Park Avenue school
between 1972 and 1998, died aged 71 in April 2009, around 18
months after he was diagnosed with mesothelioma, the incurable
cancer of the lining of the lung.
The asbestos is believed to have been in shelves in a cupboard
which Mr Beck, also known as Neville, used regularly to store
books and equipment.
His widow Sue, 70, launched a legal bid against East Sussex County
Council over concerns that more could and should have been done to
protect Mr Beck from inhaling asbestos fibres at the school during
his career. Mrs Beck spoke of her relief after securing justice
from the council over her late husband's illness.
"No amount of money will ever bring Clive back," said Mrs Beck,
who was married for 28 years. "He wasn't here to walk our daughter
up the aisle when she got married and he would have so enjoyed
being a grandfather to our granddaughter. But the fact is the
council should have done more to protect him and it didn't."
"Losing Clive to mesothelioma was devastating and my family and I
have been determined to get the answers we feel we deserve over
his death. To see the impact that the illness had on him was
unbearable and it is difficult to take when nowadays the risks of
being exposed to asbestos are so well known.
"It has been a difficult few years but we are relieved this legal
battle is now over. Nothing will ever bring Clive back but we felt
it was important to get justice over everything he has faced."
National law firm's Irwin Mitchell's specialist Asbestos-Related
Disease team helped Mrs Beck and her family receive the
undisclosed out-of-court settlement over the failures which led
her husband to be exposed to the deadly material.
Together, Mrs Beck and Irwin Mitchell are reiterating demands for
more to be done to rid public buildings of dangerous asbestos.
Sarah Wolf, the legal expert at Irwin Mitchell's London office who
represented Mrs Beck in her search for answers, said, "Despite
asbestos being so commonly associated with industrial
environments, this tragic case is one of a growing number we are
seeing in relation to the presence of asbestos in public buildings
such as offices, hospitals and schools.
"Perhaps the most tragic aspect of Clive's story is that he was
exposed to asbestos while doing a job he loved at a school where
he worked tirelessly for more than a quarter of a decade."
One of the central issues in the case related to whether the
shelves in a cupboard which Mr Beck regularly used to store books
and equipment were made from asbestos material.
Former colleagues were able to describe them and stated they were
removed during an asbestos removal project at the school in the
1980s.
Sarah Wolf said, "If any comfort can be gained from this terrible
case, it is that Sue and her family have been able to gain some
financial security following the death of their loved one, which
is only fair when he was exposed to a deadly material while simply
doing his job.
"The danger of asbestos in schools also remains very much a live
topic in the public domain and we were pleased when it was the
subject of an Education Select Committee hearing earlier this
year.
"It is understood that asbestos is present in 75 per cent of the
country's schools and we have long called for comprehensive action
to be taken to improve the management and inspection process in
relation to the material and ensure its removal where necessary.
The risks of exposure are simply too great to be ignored."
ASBESTOS UPDATE: Supervisors Will Fund Fibro Removal
----------------------------------------------------
The Associated Press reported that supervisors at Lowndes County,
Mississippi, will give the Columbus-Lowndes Recreation Authority
up to $37,000 to remove asbestos from the old Crawford Community
Center.
The Commercial Dispatch reported that supervisors also are
studying options for demolishing the building.
Supervisor Jeff Smith says the abandoned building has been a
magnet for drug dealing and other criminal activity. He proposes
to clear the site and build a fire station at the site.
"Every entry to that building is available for you to walk right
in," he said. "The back windows are knocked out. The front windows
are knocked out. It's just a bad situation that needs to be
resolved."
County fire coordinator Sammy Fondren said the town's current fire
station is old and lacks basic necessities including a restroom.
The department wants to build an expanded, updated facility for
fire protection in the Crawford community, he said.
"We have the money earmarked in District 4's budget to build a
station," Fondren said. "We do not have the funds to go beyond a
much greater amount if we were responsible for trying to remove
that facility for the asbestos and site work. If this is not a
doable location, we will look at some other sites."
Board president Harry Sanders said funds had been budgeted this
year for asbestos removal and the plan was to set aside funds for
demolition next budget year.
ASBESTOS UPDATE: Berkshire Says Scripps Story "Inaccurate"
----------------------------------------------------------
Steve Jordon, writing for Omaha World-Herald, reported that Warren
Buffett's office took the unusual step of responding in detail to
a news story about Berkshire Hathaway Inc.'s insurance operations.
Scripps News correspondent Mark Greenblatt reported allegations by
attorneys, insurance executives and people with insurance claims
who said the company delays paying claims and court judgments for
asbestos so Berkshire can earn profits by investing money it holds
to pay claims.
The story said Berkshire's "delay, deny until they die" strategy
on claims payments includes Omaha-based National Indemnity Co., a
Berkshire property-casualty insurer, and reinsurance operations
overseen by Berkshire executive Ajit Jain.
In response, Berkshire sent a seven-page press release that starts
with a quote reminiscent of the annual letters sent to Berkshire
shareholders by Buffett, chairman and CEO of Omaha-based
Berkshire:
"Over a century ago, Mark Twain observed, 'Never pick a fight with
people who buy ink by the barrel.' We are about to ignore Twain's
sage advice."
Calling the Scripps story misleading and inaccurate, Berkshire
said its insurance companies pay legitimate claims fairly and on
time but also litigate claims they view as excessive.
The press release said Berkshire emailed information about claims
cases to Greenblatt, but the information wasn't included in the
story.
A Scripps editor reviewed Berkshire's rebuttal and said the
company stands by Greenblatt's story.
Why such a strong reaction by Berkshire?
Buffett's emphasis on ethical conduct is well-known. The press
release said:
"We take extremely seriously the important duties we assume in
this area; duties that are owed to policyholders, to insurers and
reinsurers on whose behalf we manage claims, to regulators who
oversee our industry, and indeed to our own shareholders, who
expect us to operate well above any minimum standards of practice
for our business."
ASBESTOS UPDATE: Landlords Fix Boiler & Removed Fibro After Call
----------------------------------------------------------------
Katriona Ormiston, writing for Oxford Mail, reported that a great-
grandmother has been living without heating in a property with
asbestos for three months.
But after the Oxford Mail contacted Sanctuary Housing about
Maureen Cox's bungalow in Charlbury Road, Kidlington, the boiler
was fixed and the asbestos was cleared.
The 76-year-old moved into the property on August 11 and
discovered warning signs about asbestos in the attic. She
informed the housing association but says nothing was done.
The mother-of-three who has four grandchildren and seven great-
grandchildren also found that the boiler was broken and that she
had no heating.
She said it took four weeks before a plumber came to the property
to fix it, but said he refused to go into the attic and fix the
boiler because of the asbestos.
Mrs Cox said asbestos was then also found in a cupboard which had
to be taped off.
The retired shop manager said: "I called them up so often. At last
they have moved it. It has only taken three months.
"I have had no heating for the whole of that time.
"I'm not the sort of person to scream and shout down the phone,
but hopefully I will know now what it feels like to have the
radiators on.
"I don't like to get anyone into trouble but a friend told me I
have to look after myself."
Her daughter Alison Hillier said: "She has been going in and out
of that cupboard for two months. She is already asthmatic so it
has been very worrying.
"Her great-grandchildren have been visiting as well."
The Oxford Mail spoke to Sanctuary Housing to ask why it had taken
so long for the problems to be fixed. The same day the asbestos
was cleared.
Daren Jones, national gas operatives manager for Sanctuary, said
the asbestos had been removed and apologised for how long it had
taken to do the work.
The boiler was fixed and Mrs Cox said: "It was a relief I finally
had heating after three months.
"I have been cold to the bone. I was sitting under a blanket with
two hot water bottles.
It's a relief to have it back."
Sanctuary provides rented, sheltered and other properties in
England and Scotland.
ASBESTOS UPDATE: Blacktown Reduces Fees for Fibro Disposal
----------------------------------------------------------
St. Marys-Mt. Druitt reported that a 12-month trial of reduced
fees for disposing of asbestos has been welcomed by Blacktown
Council, in Sydney, Australia. A spokeswoman said the council had
lobbied the state government to abolish levies for disposal of
asbestos for many months. There have been 10 incidents of
potentially deadly asbestos dumped onto public roads and nine in
public reserves in Blacktown since July 1, she said.
Environment Minister Robyn Parker said the government hoped
reduced fees will reduce the amount of asbestos dumped illegally.
The problem is especially linked to renovating pre-1987 homes.
ASBESTOS UPDATE: Sufferer Credits Barringo for Keeping Her Alive
----------------------------------------------------------------
Barry Kennedy Macedon, writing for Herald Sun Leader, reported
that Lou Williams credits the quiet and relaxing surrounds of
Barringo for defying one of the most aggressive cancers of all.
The 58-year-old has had mesothelioma, commonly known as asbestos
cancer, for 10 years.
The cancer, linked to the now banned building product asbestos,
attacks the lungs, turning them as hard as concrete and, in doing
so, crushing other organs.
Ms Williams is in a one per cent segment of mesothelioma sufferers
who have warded off the disease for so long. She is in her third
major round of treatment, after a relapse earlier this year sent
her back into a chemotherapy program.
"I've had symptoms for 12 years, but I was first diagnosed 10
years ago when I was given two months to live," Ms Williams said.
"In August, my oncologist put me on another round of chemotherapy
after the cancer came back to my heart and other lung."
Ms Williams moved to the Macedon Ranges from Tasmania after her
diagnosis, believing if she had only a short time left, she should
live somewhere beautiful.
She has been a passionate advocate for sufferers, campaigning for
many years alongside Bernie Banton, who challenged James Hardie
over their liability.
"Our big awareness push is making home renovators aware of the
presence of asbestos in their homes and urging them to be wary and
remove and dispose of it properly," Ms Williams said.
"There is a national register for people to record instances of
exposure and renovators need to be aware asbestos fibres can be
found in old putties and other building materials that date to the
1980s."
Asbestos campaigners are now pushing for subsidies for the removal
and disposal of the substance to be offered by the federal
government.
Ms Williams plans to accept an award for her campaigning in
Washington in March.
November is Asbestos Awareness Month.
ASBESTOS UPDATE: Deadly Dust Found in Children's Playground
-----------------------------------------------------------
Emma-Jayne Schenk, writing for Bendigo Advertiser, reported that
Kyneton's Lady Brooks Kindergarten, in Australia, will be closed
for a week after two small pieces of asbestos were found in the
playground.
The pieces were the size of a 50 cent piece.
Their original source is unknown but Macedon Ranges Shire Council
say they were not part of the existing kindergarten building.
The council is investigating whether the pieces were brought onto
the site, or whether they are remains from a previous building.
Community well-being director Karen Stevens said the discovery was
unexpected. She said the building had been cleared of asbestos
prior to recent upgrades.
"We are deeply concerned that this material has been found, given
that all asbestos had been safely removed from the building before
the renovations started earlier this year," she said.
"A soil test was also done in late 2012 which did not identify any
asbestos.
"We are confident that the material has not come from the existing
building.
"They resemble pieces of roof tile which are not part of the
existing building."
Parents were notified on that the kindergarten would be closed
this week.
Ms Stevens said council was aware of the disruption this would
cause to families, but that children's safety was paramount.
She said children at the kindergarten would not be put on the
asbestos register, as the risk was "negligible".
"We need to ensure the site is clear before children can return,"
she said.
"We know this is a blow to parents and families of Lady Brooks.
"They have been so patient and supportive of the recent upgrades
and have only just begun to enjoy the use of their newly
redeveloped facility."
Several classes have already been relocated.
ASBESTOS UPDATE: Toxic Dust Is Byproduct of Bogalusa Blight Fight
-----------------------------------------------------------------
Claims Journal reported that vacant, overgrown lots all around
Bogalusa, Louisiana, have been roped off with red tape that reads
"Danger Asbestos Hazard."
Bogalusa Director of Public Works James Hall says neighboring
property owners don't need to be alarmed. However, they should not
stir up any debris within the taped-off areas.
The Bogalusa Daily News reports that the red tape is the latest
development in the city's year-old effort to demolish and remove
blighted houses. The cleanup work was stopped by the Department of
Environmental Quality after it found asbestos at some sites. The
material must be removed according to strict regulations because
exposure has been found to increase the risk of lung disease.
Hall says the city is trying to find funding for the costly
process of asbestos removal.
"The tape is the result of a meeting with the DEQ," Hall said.
"Until we get the funds to clean the lots, they requested we put
the tape up. They said they saw children playing on one."
In general, exposure to asbestos occurs when an asbestos-
containing material is disturbed or damaged in a way that releases
particles and fibers into the air, according to the Environmental
Protection Agency.
"The DEQ said they detected asbestos on 140 lots," Hall said. "We
bid out the first 26, and just that many will take approximately
$110,000. We've also got a bunch of houses, but we'll do the lots
first."
ASBESTOS UPDATE: Nurse Links Cancer to Deadly Dust
--------------------------------------------------
Alison Stacey, writing for Birmingham Mail, reported that a former
cleaner has launched a legal battle to prove her cancer diagnosis
was linked to sweeping up asbestos dust at a Birmingham hospital.
Ann Yapp spent 25 years at Heartlands Hospital, formerly East
Birmingham Hospital, starting as a cleaner and then becoming a
nurse.
Now a 70-year-old grandmother, she was diagnosed with
mesothelioma, a cancer in the lining of the lungs related to
asbestos exposure, in September last year.
She said she was required to sweep up after the maintenance team
following several repairs on lagged pipes and asbestos ceiling
roofs, which left dust and debris all over the floor.
Ann, from Stourport on Severn, said: "For many years I was exposed
to asbestos in numerous places around the hospital and at no time
was I given a mask to cover my face.
"I worked with many people during my time and I hope someone can
come forward with any information they may have."
Ann has now instructed Birmingham-based law firm Irwin Mitchell to
help her battle for justice.
"I can't play with my three grandchildren because I am out of
breath and I am now unable to do my gardening which is a lifelong
passion" she said.
"I just hope anyone with information, no matter how small, gets in
touch as I am keen to see justice done."
A hospital spokesman said: "We take the safety and care of all of
our staff very seriously and continue to rigorously ensure all
staff are provided with health and safety training and the
appropriate equipment.
"We are very sorry to learn of Mrs Yapp's condition and, due to
confidentiality and legal reasons, we are unable to comment
further at this stage."
ASBESTOS UPDATE: Fibro Fire at Althorpe
---------------------------------------
South Yorkshire Times reported that fire crews dealt with a blaze
involving waste asbestos and a quantity of calcium carbide at
Althorpe, in England.
The fire was inside a hopper at a site off the A18.
Humberside fire crew members wore breathing apparatus and used dry
powder extinguishers to quell the fire, that was then left to burn
out under the supervision of site personnel.
ASBESTOS UPDATE: Landmark Fibro Payout for Dying Woman
------------------------------------------------------
Wigan Today reported that a Wigan, England mum has won a landmark
pay-out for the asbestos-related illness that is killing her.
The unnamed 61-year-old has become the first local person to
successfully claim damages from Turner and Newall without having
ever worked for the defunct Hindley Green firm.
She landed the payment after convincing trustees that the deadly
mesothelioma with which she was diagnosed last year must have been
contracted when she lived 500 yards away from the factory when she
was a schoolgirl.
Her lawyers say it is unlikely that after this legal precedent was
set, she will be the last Wigan resident to lodge a claim for
"environmental exposure" from the Turner and Newall plant which
has already paid out millions to ex-workers and their families.
The mother of three, who was a keen runner, visited her GP in the
autumn of last year after noticing unusual shortness of breath. A
chest X-ray revealed a shadow on her lung which was later
diagnosed as mesothelioma.
She contacted Thompsons Solicitors to investigate her case for
compensation and it this week secured damages of over œ70,000 from
the Turner and Newall Asbestos Trust which was set up to
compensate people exposed to asbestos by the company after it went
into administration in 2001.
The victim had lived near the factory, which for a time was also
called TBA Belting, between the ages of five and 19.
She said: "When we were growing up, clouds of asbestos dust were
visible in the air and would get on our clothes.
"I spent my childhood playing in the fields that surrounded the
plant.
"I remember asbestos dust being brought in to our house on the
shoes and clothes of visitors; it lined the outside window panes.
"This illness has completely shattered my life. Growing up next to
the Hindley Green Turner Brothers factory all those years ago
caused of my cancer. I had always been busy, fit and active.
"This has been an extremely distressing time for myself and my
family."
In the evidence presented to the trustees the woman also explained
that she would be in shops at the same time as factory workers and
several staff would come round to her house straight from wthe
factory in their dust-covered work clothes to see her dad who was
involved in the local cricket team.
Steven Dickens from Thompsons Solicitors said: "Many people
diagnosed with mesothelioma were exposed to asbestos decades ago
while at work and this caused their condition.
"But in this case the mesothelioma was caused by the Turner
Brothers factory polluting the local environment. We believe this
is the first successful mesothelioma claim to the Turner and
Newall Trust for an environmental exposure case relating to the
factory at Hindley Green."
Turner and Newall has already made a number of pay-outs to people
who lived around its factory in Armley, Leeds, which was in the
middle of a heavily residential area.
The Hindley Green plant had fewer houses around it but Mr Dickens
said that it would not surprise him if other cases now emerged.
He added: "This is a very sad story. The lady and her husband were
childhood sweethearts who grew up in Hindley Green and she had
been very fit up until the mesothelioma took hold last year.
"They want privacy as she battles this terrible illness but they
also want people to know about this landmark victory in case other
people are similarly affected in future and be informed that
compensation can be claimed.
"They could have taken the matter to court to make a greater claim
but the family's main objective was to get a victory. The trustees
at first seemed reluctant to pay out but then relented when
presented with overwhelming evidence."
ASBESTOS UPDATE: Danziger and De Llano Adds New Web Site Articles
-----------------------------------------------------------------
Trusted asbestos law firm Danziger and De Llano, LLP announced on
Nov. 12 the addition of several new articles on new pages to its
mesothelioma website, USAEP.org. The site was created to provide
help to mesothelioma victims and their families understand their
legal rights following a life-changing diagnosis.
One of the new articles on the site, available online at
http://www.usaep.org/mesothelioma-lawsuits-pose-special-challenges
discusses the specific knowledge needed to successfully handle a
mesothelioma case. With over two decades of experience working
with mesothelioma cases and winning significant judgments to
assist victims and their families, the attorneys at Danziger and
De Llano, LLP have extensive knowledge and understanding of the
complicated processes and details surrounding mesothelioma cases.
When deciding how to file a mesothelioma lawsuit or whether to
file one at all, Danziger and De Llano recommends speaking to law
firm with the needed mesothelioma experience to ensure that the
best decisions are made.
"One mistake that mesothelioma victims frequently make is to
entrust the decision-making process about the disposition of their
case to family friends, or a general practice attorney with whom
they are acquainted, or perhaps a relative," explains one of the
new articles at http://www.usaep.org/mesothelioma-legal-advice/.
"Though these legal professionals are generally well-intentioned,
the truth is that mesothelioma cases require a very specific
knowledge set that only comes with years of practicing
mesothelioma law."
Another new article on the site addresses the positives and
negatives of making claims for compensation through asbestos trust
funds. According to http://www.usaep.org/pluses-and-minuses-of-an-
asbestos-trust/, asbestos companies have set up specific trust
funds used only to compensate victims of asbestos exposure.
Although the value of these funds is currently 30 billion dollars,
there are both benefits and disadvantages to making claims to
these funds. An experienced mesothelioma attorney can help victims
understand which process is best for them to use to obtain
compensation for their exposure.
About USAEP.org:
Created by Danziger and De Llano, LLP, one of the most respected
and experienced law firms with regard to mesothelioma litigation,
USAEP.org provides mesothelioma victims and their families with
the legal counsel and advice they need upon diagnosis. Driven by
passion, professionalism and over two decades of experience,
Danziger and De Llano, LLP consistently wins the highest possible
jury awards and settlements for its clients, providing them with
the financial assistance they need. For more information, visit
http://www.usaep.org.
Media Contact:
Harold Simmons
Danziger and De Llano, LLP
Tel: 480 243-8054
Email: admin@rocketfactor.com
ASBESTOS UPDATE: New Fibro Lawsuit Filed in St. Clair County
------------------------------------------------------------
Kelly Holleran, writing for The Madison-St. Clair Record, reported
that another asbestos lawsuit has been added to St. Clair County's
asbestos docket.
Lisa Michelle Lippold filed an asbestos lawsuit Nov. 1 in St.
Clair County Circuit Court on behalf of her recently deceased
husband, Thomas W. Lippold, against 50 defendant corporations.
Lisa Lippold does not specify where she resides.
She is represented by Randy L. Gori and Barry Julian of Gori,
Julian and Associates in Edwardsville.
In her complaint, Lisa Lippold alleges the defendant companies
caused her husband to develop lung cancer after his exposure to
asbestos-containing products throughout his career.
Thomas Lippold worked as a welder and car man at Railcar Nebraska
from 1948 until 1996, as an audio and technical engineer at Grand
Country 76 Music Hall from 1997 until 1999, as an audio and
technical engineer at Pierce Arrow Theatre from 2000 until 2009
and as a welder at Chatsworth Products in 2012, 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, Thomas Lippold died
on Nov. 15, 2012. Before his death, he 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 her 11-count complaint, Lisa Lippold is seeking a judgment of
more than $150,000, economic damages of more than $200,000,
compensatory damages of more than $150,000, punitive and exemplary
damages of more than $50,000 and other relief the court deems
just.
St. Clair County Circuit Court case numbers: 13-L-558.
ASBESTOS UPDATE: NSW Group Supports Waste Disposal Initiative
-------------------------------------------------------------
Ryan Smith, writing for The Transcontinental Port Augusta,
reported that the local Asbestos Victims Association group has
supported a New South Wales initiative to scrap a levy on asbestos
waste disposal.
The association went one further and said they would like to see
the cost of disposing of asbestos reduced in Port Augusta and
across the country.
The 12 month trial will occur in at least 10 local government
areas throughout NSW.
Local AVA president Geoff Maul said the high cost of disposing
asbestos from home renovations was one of the leading causes to
illegal dumping.
He said he wanted other states and territories to follow suit with
similar schemes to curb illegal dumping, which has seen countless
cases of highly dangerous asbestos dumped on city streets, at
times near schools and child care centres.
"People are just dumping it [asbestos] out everywhere," he said.
"Up the Woomera Road, the Whyalla Road, in the gulf and it's not
going to landfill where it should be because it's too high a cost
to dump."
In Port Augusta, non-friable asbestos can be disposed of at the
TPI Waste Transfer Station on Footner Road.
It needs to be sealed in black plastic to be accepted and is
charged at $200 per tonne with a minimum price of $100.
Mr Maul said home renovators should always employ a professional
to remove asbestos but this sees the cost of removal skyrocket.
"They [home renovators] shouldn't do it [remove asbestos]
themselves," he said.
"If anyone is in doubt they should ask for advice and not touch
it.
"Once you add up the cost to dispose of it, the cost to get
someone to transport it and the cost to have a professional remove
it, you're looking at $1000 a sheet for the removal and the
dumping."
Mr Maul said it was this cost that forced people to dump illegally
and any reduction would create a safer environment for everyone.
The Environmental Protection Authority have also decided to start
paying $50 towards the removal and transportation of asbestos to
landfill sites.
ASBESTOS UPDATE: Fibro Discovery will Add to Court House Costs
--------------------------------------------------------------
Nash Dunn, writing for The Dispatch, reported that the price of
ongoing repairs to the Old Davidson County Court House, in North
Carolina, will rise by about $250,000 after an asbestos coating
was discovered on the structure.
The total price of the project, which calls for a complete
overhaul of the building's exterior, is now expected to reach more
than $870,000.
An asbestos test ordered by Davidson County government found 2-3
percent levels throughout the entire exterior of the building,
said Dwayne Childress, the county's support services director.
A "skim coat" material, likely placed on the building in the mid-
1970s, contained the potentially hazardous substance, according to
county documents.
The Davidson County Board of Commissioners approved a $250,392
change order allowing Abatemasters of Welcome to remove the
coating. That amount will be added to more than $617,500 in work
already approved by commissioners in August.
Commissioners say they wish they had known about the asbestos
before giving their OK this summer.
"If we had that in the very beginning, we may have looked at it
differently," commissioner Steve Jarvis said.
Jarvis, one of three board members on a facilities committee that
make recommendations on capital projects, said the committee
relied on recommendations from an architect hired to review the
building before the project started.
"The way I see it, he just dropped the ball," Jarvis said, adding
that it was important to consider how many times the building had
been resurfaced over the years. Chances were high that the
building was resurfaced in the 1960s and 1970s, when asbestos
materials were common.
"I regret terribly that any one of us didn't bring that to
attention, but we assumed that if the engineer was doing his job,
he had done every type of test that would be necessary," Jarvis
said.
The project's architect, David Black of HagerSmith Design in
Raleigh, said he could have recommended testing prior to the
project that may have identified the asbestos coating.
"This was not the type of coating that in my experience, which
goes back 35 years, was likely to contain asbestos," Black said.
"It's the owner's responsibility to do hazardous material
assessments, and we didn't recommend it because in our experience,
it wasn't something that was likely to contain asbestos."
The court house project includes repairs to the building's cornice
(molded ledges), portico (porch and entrance) and soffit areas.
Crews will also repair or replace gutters and downspouts, in
addition to removing all lead paint.
Funding also covers a new courtroom exit door and repairs to the
fire exit stairs, among other improvements, according to county
records.
About $150,000 of the project's funding is expected to stem from
Preservation North Carolina, a nonprofit that protects and
promotes historic buildings.
Davidson County Commissioner Larry Potts said he wants to start a
conversation about removing the court house from the National
Register of Historic Places to save money on repair projects.
Potts said it would be more cost and structurally efficient to
repair parts of the building with more modern materials, but that
is prohibited in most historic guidelines the county follows.
"It was built in the 1800s, is a good structure and is part of our
heritage, but we have advanced a long way with polymers, epoxies
and finishers," Potts said. "It's a focal point of downtown, and
we want to maintain it, but these strict guidelines we have to go
by are cost prohibitive."
The majority of the court house work can't start until the
asbestos coating is removed, a process that will require a state
permit.
The building, located at the corner of Main and Center streets on
the Square, is surrounded by scaffolding and a white, plastic tarp
on all sides.
Jarvis said between the work already completed and money paid for
pre-construction services, the county was too far invested in the
project to back out at this point.
In addition, Childress said the project is needed.
"You can't encapsulate it any more; we have run that to the end,"
Childress said. "It's in bad shape."
ASBESTOS UPDATE: FACT Act Foes Speak Out
----------------------------------------
Tami Kamin Meyer, writing for Legal Newsline, reported that the
Furthering Asbestos Claim Transparency Act "was written for the
asbestos industry, not us," said Linda Reinstein, president, CEO
and co-founder of the Asbestos Disease Awareness Organization
during a telephone press conference.
Reinstein, whose husband died of mesothelioma in the mid-2000s,
also noted that asbestos is still legal in the United States
despite the general belief that it has been banned.
Under the new law, asbestos personal injury settlement trusts
would be authorized by federal bankruptcy law to disclose
information on their claims and respond to information requests
from parties to asbestos litigation. It would also require the
trusts to file public reports providing information with each
claim for compensation.
Critics of the proposed legislation fear personal information,
such as the last four numbers of a claimant's social security
number, will be revealed to parties of asbestos litigation.
Reinstein also argues it will create additional hurdles for
asbestos victims, leading to "delayed or denied compensation."
Supporters of the FACT Act include the U.S. Chamber of Commerce's
Institute for Legal Reform, which owns Legal Newsline.
Jason Johns, Executive Director of the Wisconsin Asbestos Victims
Network and a combat-wounded veteran, called the FACT Act "an
affront to our service." Because 30 percent of mesothelioma
victims are veterans, the legislation would impact them
disproportionately. Moreover, the bill shifts the burden of proof
to plaintiffs about why they should not have to go through their
state's personal injury trust before seeking reparations on the
federal level.
U. S. Rep. Blake Farenthold (R-Texas) sponsored the FACT Act, also
known as House Resolution 982. The House Judiciary Committee
passed the legislation in May.
ASBESTOS UPDATE: Fibro Found in Winnebago County Jail
-----------------------------------------------------
Asbestos was recently discovered in Winnebago County jail, in
Illinois. Following that, a report from globegazette.com related
that removal of it was implemented. Meanwhile, warning that the
mineral fiber presents fatal effects, Florida asbestos testing
company, AGC Environmental, gave out some tips how to avoid its
health threats.
According to the news, which was posted on November 09, 2013, the
asbestos was particularly found on the floor tiles in the cell
area and the basement of the prison, My Cleaning Products related.
It also detailed that it was actually the jail's age that prompted
the discovery of it.
As said in the report, a committee was planning to build a new law
enforcement center, which could result to the current jail being
torn down, MCP shared. But regardless, it relayed that Winnebago
County Sheriff Dave Peterson said that the asbestos had to be
removed. And that removal, it additionally relayed, he also
confirmed.
Here is an excerpt from the post Winnebago County Jail Found With
Asbestos from globegazette.com
"A crew removed asbestos from the Winnebago County jail. Workers
were in the facility for four working days removing asbestos from
floor tiles in the cell area and the basement. "With the age of
the building, we knew it was something we had to look into," said
Winnebago County Sheriff Dave Peterson."
AGC Environmental, a Florida asbestos testing company, said that
wherever asbestos is, it could pose a fatal risk to anyone's
health. It shared that thousands of people already died after
being exposed to its fiber for a very long time. And as it cited,
lung cancer is usually the illness that it brings to its victims.
Given that, the company advised the public to have their homes and
buildings inspected for the said mineral fiber. However, it warned
everyone not to touch it as its fibers could be released and
inhaled. Instead, to be safe, the work should be left to the
experts it stated.
However, for a Florida asbestos testing, AGC Environmental said
that the residents should pick their services over that of others.
And as it pointed out, that's because their consultants and
inspectors are certified professionals.
Moreover, it said that their outputs are reliable. It added that
they even provide consultation and documentation of the inspection
that could be used for courtroom appearances.
To learn about the company and its Florida asbestos testing and
other service, it encouraged everyone to visit its website at
http://agcenvironmental.com.
ASBESTOS UPDATE: Whiteside Landfill Might Be Opened for Fibro
-------------------------------------------------------------
David Giuliani, writing for SaukValley.com, reported that in
September, the Whiteside County Board allowed Prophetstown,
Indiana, to use the county's landfill to dispose of asbestos from
the rubble of a downtown fire in July.
Now, officials are considering whether to drop the asbestos ban
permanently. Asbestos has been prohibited since the county set up
the landfill in the early 1990s -- a way to alleviate neighbors'
concerns.
The county will have public hearings in Morrison and Sterling to
get feedback on ending the ban.
"The county wants to take a deliberate look at whether we should
allow asbestos in general to go forward," County Administrator
Joel Horn said.
Prophetstown saved significant money by disposing of asbestos at
the landfill, which is east of Morrison, rather than going
somewhere farther away, he said.
Horn said he had heard of no opposition to allowing asbestos at
the landfill.
Before the fire, he said, the county health department reported
that it had heard of instances in which people had improperly
disposed of asbestos because of the ban.
"That's what we don't want," Horn said. "We want to make it easier
for people to dispose of asbestos the proper way, so it doesn't
become a health issue."
As a result of health department's reports, the county was already
considering lifting the ban before the fire, he said.
"We were forced to consider it with the Prophetstown fire," Horn
said.
Last month, the County Board's landfill committee instructed Horn
to prepare a proposal that would include no limit on asbestos
materials that are incapable of becoming airborne, with discounts
for Whiteside County residents, according to meeting minutes. That
proposal also would allow only county residents to dispose of the
variety of asbestos that is capable of becoming airborne, the
committee said.
The proposal would include a process for seeking exceptions.
Horn suggested that fees for asbestos from outside the county be
in line with charges from neighboring landfills to avoid providing
an incentive to have waste hauled to any particular landfill.
No ban plan
Whiteside County will have two public hearings on a proposal to
allow asbestos at the county landfill. The County Board's
landfill committee will meet on the asbestos issue at 6 p.m. Dec.
17 at the courthouse, just before the monthly board meeting.
Call the county administrator's office at 815-772-5100.
ASBESTOS UPDATE: Toxic Dust Keeps Shared Trail Closed
-----------------------------------------------------
Summit Sun reported that the Lake Jindabyne Shared Trail, in New
South Wales, Australia -- from the pump station access road to the
dam wall -- is to remain closed following the discovery of
asbestos contamination.
The Snowy River Shire Council says that public safety is the main
priority and public access cannot be allowed until any threat is
eliminated.
Work is being carried out with a management consultant on
appropriate management strategies, safe public access and options
for further site remediation.
Public access was restricted in June as a precautionary measure.
A survey of the site was completed by asbestos management
specialists this spring. The survey involved removing all visible
asbestos material from the surface of the site.
"Whilst this process has removed the obvious contamination, the
council is concerned about the results that show there is asbestos
buried within the site, and may therefore still pose a risk to the
public as the material continues to surface over time," the
council said in a statement.
"The council is following a process for site assessment,
remediation and management in partnership with the landholders and
asbestos contamination specialists.
"The next stages will include completing an asbestos management
plan, followed by undertaking the recommended actions for both the
short and long term use of the site.
"We are addressing the issue as efficiently and effectively as
possible."
November is asbestos awareness month. The council is supporting
the nationally run program to educate our community about the
dangers of asbestos and will have Environmental Health Officers
available to chat about asbestos awareness at the National
Recycling Expo being held at the Jindabyne Memorial Hall from 10am
to 3pm.
ASBESTOS UPDATE: Ill. Court Affirms Ruling in "Bowles" Suit
-----------------------------------------------------------
In October 2009, plaintiff, Virginia Bowles, individually and as
independent executrix of the estate of Jerald Bowles, deceased,
filed suit against Owens-Illinois, Inc., John Crane, Inc., and
other defendants, seeking damages in connection with decedent's
lung cancer allegedly caused by his exposure to asbestos and/or
asbestos-containing products. In June 2012, the trial court
granted motions for summary judgment filed by Owens-Illinois and
John Crane.
On appeal, the Plaintiff argues the trial court erred in granting
the motions for summary judgment filed by Owens-Illinois and John
Crane on her exposure counts.
The Appellate Court of Illinois, Fourth District, affirmed the
lower court's ruling in an opinion delivered by Justice John W.
Turner.
Explaining his decision, Justice Turner stated, "In this case. . .
plaintiff's claims that decedent was exposed to asbestos-
containing products of John Crane, as well as Owens-Illinois, is
speculative and conjectural. Plaintiff failed to present evidence
decedent worked with or around any John Crane asbestos-containing
product with sufficient frequency, regularity, and proximity to
create a genuine issue of material fact."
The case is VIRGINIA BOWLES, Individually and as Independent
Executrix of the Estate of Jerald Bowles, Deceased, Plaintiff-
Appellant, v. OWENS-ILLINOIS, INC., and JOHN CRANE, INC.,
Defendants-Appellees, and PNEUMO ABEX CORPORATION; PNEUMO ABEX,
LLC; HONEYWELL INTERNATIONAL, INC.; METROPOLITAN LIFE INSURANCE
COMPANY; GARLOCK SEALING TECHNOLOGIES, LLC; AURORA PUMP COMPANY;
BUFFALO PUMPS, INC.; WARREN PUMPS, INC.; and TYCO FLOW CONTROL
INC., f/k/a YARWAY CORPORATION, Defendants, NO. 4-12-1072 (Ill.
App. (4th)).
Steve Wood, Esq., and Andrew Kelly, Esq., both of Wylder Corwin
Kelly LLP, for appellant. Messrs. Wood and Kelly can be reached
at:
WYLDER CORWIN KELLY LLP
207 E. Washington, Suite 102
Bloomington, IL 61701
E-mail: info@wcklaw.com
Robert H. Riley, Esq. -- rriley@schiffhardin.com -- Matthew J.
Fischer, Esq. -- mfischer@schiffhardin.com -- Neil Lloyd, Esq. --
nlloyd@schiffhardin.com -- and Stephen Copenhaver, Esq. --
scopenhaver@schiffhardin.com -- at Schiff Hardin LLP, in Chicago,
for appellee Owens-Illinois, Inc.
Daniel J. O'Connell, Esq. -- dan@otmblaw.com -- Mark I. Tivin,
Esq. -- mark@otmblaw.com -- Benjamin J. Pucci, Esq. --
bpucci@otmblaw.com -- and William C. Swallow, Esq. --
wswallow@otmblaw.com -- at O'Connell, Tivin, Miller & Burns, LLC;
and Michael A. Pollard, Esq. -- Michael.Pollard@bakermckenzie.com
-- and Eileen T. Flynn, Esq. -- Eileen.Flynn@bakermckenzie.com --
at Baker & McKenzie LLP, both of Chicago, for appellee John Crane,
Inc.
ASBESTOS UPDATE: NY Court Rules in Colgate Insurance Suit
---------------------------------------------------------
In an insurance declaratory judgment action, Resolute Management,
Inc., National Indemnity Company and OneBeacon American Insurance
Company move to dismiss Colgate-Palmolive Company's amended
counterclaims for failure to state a cause of action. OneBeacon
also moves to strike all allegations relating to the "Proposed
Acquisition," and for a protective order precluding all discovery
on the Proposed Acquisition.
The action arises out of various personal injury lawsuits against
Colgate based on alleged exposure to asbestos contained in
Colgate's talc products, and the defense and resolution of two of
those cases, to wit: the "Bernard & Tedrick Cases," in accordance
with general liability primary and excess policies OneBeacon
issued to Colgate.
Judge Carol R. Edmead of the Supreme Court, New York County,
granted the motion by counterclaim defendants Resolute Management
and National Indemnity to dismiss Colgate-Palmolive's amended
counterclaims as asserted against them solely as follows: Count
VIII and Count X as asserted against Resolute are severed and
dismissed as to Resolute; Count IX as asserted against NICO is
severed and dismissed against NICO.
Judge Edmead, however, dismissed the branch of OneBeacon's motion
to dismiss Colgate-Palmolive's amended counterclaims for failure
to state a cause of action solely as to Count X as asserted
against OneBeacon. Judge Edmead also denied the branch of
OneBeacon's motion to strike and dismiss all allegations relating
to the "Proposed Acquisition," and for a protective order
precluding all discovery on the Proposed Acquisition.
The cases are ONEBEACON AMERICA INSURANCE COMPANY, Plaintiff, v.
COLGATE-PALMOLIVE COMPANY and LIBERTY MUTUAL INSURANCE COMPANY,
Defendants and COLGATE-PALMOLIVE COMPANY, Counterclaim Plaintiff,
v. ONEBEACON AMERICA INSURANCE COMPANY, NATIONAL INDEMNITY
COMPANY, and RESOLUTE MANAGEMENT, INC. Counterclaim Defendants,
DOCKET NO. 651193/2011, MOTION SEQ. NOS. 009 & 010 (N.Y. Sup.). A
full-text copy of Judge Edmead's memorandum decision is available
at http://is.gd/SJiPCMfrom Leagle.com.
ASBESTOS UPDATE: Georgia-Pacific's Bid in "Dryfka" Suit Denied
--------------------------------------------------------------
Magistrate Judge Donald G. Wilkerson of the United States District
Court for the Southern District of Illinois denied Georgia-Pacific
Corporation's motion for a more definite statement.
The Defendant contends that the Plaintiff aggregates allegations
against several defendants in a single, unspecific statement. The
Plaintiff's Third Amended Complaint, the Defendant alleges, fails
to specify times and locations of exposure specifically to its
products. The Defendants take issue with Counts I, II, and X.
Count I is the negligence count as to manufacturers of asbestos
products. In paragraph 4 of Count 1, the Plaintiff details the
locations where she was employed when the alleged exposure to
asbestos occurred. Between 1960 and 1977, the Plaintiff held
various positions with the United States Navy. In paragraph 5 of
Count 1, the Plaintiff contends that during the course and scope
of her employment she worked with and in close proximity to others
who were working with asbestos and asbestos-containing products.
The Plaintiff further contends that during the course of her
employment the Defendant Georgia-Pacific, among others, "mined,
milled, manufactured, processed, imported, converted, compounded,
applied, installed, designed, specified, inspected, approved,
supplied, distributed and sold" asbestos and asbestos-containing
products. This information is sufficient to provide Georgia-
Pacific with fair notice of the basis of the Plaintiff's claims,
Judge Wilkerson ruled. Count 1 is not so vague and ambiguous that
the Defendant would be unable to prepare a responsive pleading,
Judge Wilkerson added.
The Defendant further takes issue with the Plaintiff's Count II
(Willful and wanton count as to manufacturers of asbestos
products) as it incorporates by reference and re-alleges
paragraphs 1-10 and 12 of Count I. Count X, the Defendant alleges,
has the same deficiencies as it incorporates by reference the
allegations contained in Counts I-IX of the Complaint. Again, the
information the Plaintiff provided is sufficient to provide the
Defendant fair notice of the Plaintiff's claims.
The case is CANDACE DRYFKA, Plaintiff, v. TRANE US, INC. et al.,
Defendants, CASE NO. 13-CV-1019-MJR-DGW (S.D. Ill.). A full-text
copy of Judge Wilkerson's Order dated Nov. 13, 2013, is available
for free at http://is.gd/EseO5Lfrom Leagle.com.
ASBESTOS UPDATE: Labor Law Claim v. ConEdison in PI Suit Junked
---------------------------------------------------------------
In an asbestos-related personal injury lawsuit, Defendant
Consolidated Edison Company of New York, Inc., moves for summary
judgment dismissing plaintiffs' Labor Law Section 200 claim and
all other claims against it on the ground that there is no
evidence to show that Con Edison supervised any of the work that
is alleged to have caused plaintiff Patrick McCloskey's injuries.
The Plaintiffs do not oppose Con Edison's motion on Labor Law
Section 200 grounds, but instead argue that Con Edison is liable
under the common law because its employees directly contributed to
Mr. McCloskey's injuries.
Judge Sherry Klein Heitler of the Supreme Court, New York County,
granted and denied in part Consolidated Edison's motion for
summary judgment. Judge Heitler dismissed the Plaintiffs' Labor
Law Section 200 claims as against Con Edison. Con Edison's motion
is otherwise denied in its entirety.
The case is PATRICK McCLOSKEY and MARY McCLOSKEY, Plaintiffs, v.
A.O. SMITH WATER PRODUCTS CO., et al., Defendants, DOCKET NO.
190441/12, MOTION SEQ. NO. 4 (N.Y. Sup.). A full-text copy of
Judge Heitler's Decision, dated Nov. 4, 2013, is available at
http://is.gd/4Ehkvqfrom Leagle.com.
ASBESTOS UPDATE: NY Court Grants Crane Co. New Trial in PI Suit
---------------------------------------------------------------
Defendant Crane Co. has filed a post-trial motion for judgment as
a matter of law notwithstanding a jury verdict rendered in favor
of Decedent-Plaintiff Ivo J. Peraica in a New York asbestos
exposure product liability action. The underlying joint trial
initially involving eight plaintiffs and numerous defendants began
on November 11, 2012, and ended on March 1, 2013, when the jury
returned a verdict awarding Peraica, the sole remaining plaintiff,
$35 million for personal injuries and wrongful death. The jury
found Crane, the sole remaining defendant, 15% liable for the
Plaintiff contracting, and dying from mesothelioma, an asbestos-
related disease and also found Crane was "reckless" in failing to
warn of the toxic hazards of asbestos.
Judge Martin Shulman of the Supreme Court, New York County,
ordered that the branches of Crane's post-verdict motion for a
judgment of dismissal, notwithstanding the verdict or,
alternatively, to set aside the verdict as against the weight of
the evidence is denied.
Judge Shulman also ordered that the branch of Crane's post-verdict
motion for remittitur is granted, setting aside the jury verdict
on damages for past pain and suffering and granting a new trial
only on this issue of damages unless, the Plaintiff executes a
stipulation agreeing to decrease the jury's aggregate award for
pain and suffering from $35 million to $18 million.
Furthermore, Judge Shulman ordered that the branch of Crane's
post-verdict motion for otherwise privileged, settlement-specific
discovery to mold the judgment is denied.
The case is IVANA PERAICA, as Administratrix for the Estate of IVO
J. PERAICA, and MILICA PERAICA, Individually, Plaintiffs, v. A.O.
SMITH WATER PRODUCTS CO., ET AL., Defendants, DOCKET NO.
190339/2011, SEQUENCE NO. 007 (N.Y. Sup.). A full-text copy of
Judge Shulman's decision and order dated Nov. 6, 2013, is
available at http://is.gd/az7I5Sfrom Leagle.com.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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