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/raid1/www/Hosts/bankrupt/CAR_Public/131129.mbx C L A S S A C T I O N R E P O R T E R Friday, November 29, 2013, Vol. 15, No. 237 Headlines ACHILLION PHARMA: Pomerantz Grossman Files Securities Class Action ALAMEDA COUNTY, CA: Suit vs. GDDF Dismissed With Leave to Amend AMERICAN AIRLINES: Class Action Attorneys Want Merger Blocked ANGELCARE MOVEMENT: Recalls Repair Movement & Sound Baby Monitors BAILEY BOYS: Recalls Children's Pajamas Due to Fire Hazard BED BATH: Faces "Beck" Suit in Pennsylvania Over Unpaid Overtime BRITISH AIRWAYS: Court Tosses Motion to Dismiss "Dover" Case C&S WHOLESALE: "Chan" Employment Suit Transferred to E.D. Cal. CAREER EDUCATION: April 2014 Settlement Fairness Hearing Set CHINA EXPERT: February 2014 Settlement Fairness Hearing Set CONAIR CORP: Cuisinart Unit Recalls Food Processors DISTRICT OF COLUMBIA: Loses Bid to Dismiss IDEA Violation Suit DUANE READE: Appeals Cert. Order in "Jacob" Employment Suit DUOYUAN PRINTING: Court Dismisses 7 Defendants in "Schmitz" Suit ELLIPTIGO INC: Recalls Elliptical Cycles Due to Fall Hazard FIRST PREMIER: Faces Suit Over ACH Network Used to Collect Debts FRESH INC: Obtains Final Court Approval of "Owen" Suit Settlement GOOGLE INC: Copyright Class Action Over Digital Library Dismissed HAWAII: Order Dismissing Suit vs. Circuit Judges Stands HOFFBERGER MOVING: Court Extends Collective Action Opt-in Period HULU LLC: Seeks Summary Judgment in Suit Alleging Privacy Claims IBT PLAN: "Virtue" Suit Claims Barred by Statute of Limitations INDIANA: Settles Hoosier Class Action for $30 Million INTEVATION FOOD: Recalls Chicken Fettuccine Alfredo Products JC PENNEY: Fails to Pay Overtime Wages to Workers, Suit Says JOE'S CRAB SHACK: Class Cert. Denial in "Martinez" Suit Reversed JOHNSON & JOHNSON: To Settle Hip Implant Suits for $2.5 Billion JPMORGAN CHASE: Admission of Wrongdoing to Help Class Plaintiffs KAISER PERMANENTE: Performed HIV Tests Without Consent, Suit Says LAWRENCEBURG NH: Altered Records of Class' Work-Hours, Suit Says MAIDENFORM BRANDS: Makes Absurd Claims for Underwear, Suit Says MAPLE LEAF: Recalls Certain Mr. Sub Spicy Chicken Bites MARYLAND: Class Certification Bid in "Cofield" Suit Denied MENZIES AVIATION: Class Cert. Bid Ruling in "Wright" Suit Affirmed NATIONAL COLLEGIATE: Court Certifies Class in Antitrust Suit NEW CENTURY MORTGAGE: Faces "Langcay" Suit Over Hawaii Property NEW ENGLAND COMPOUNDING: Meningitis Outbreak Probe Ongoing NEWFOUNDLAND, CANADA: Premier No Comment on Moose Class Action Yet PRETIUM RESOURCES: Pomerantz Grossman Files Class Action in N.Y. SAN JOSE, CA: Obtains Partial Summary Judgment in "Valdez" Suit SC STATE PLASTERING: Sun City Stucco Class Action Faces Delay SOUTHWESTERN & PACIFIC: Claim of Unconscionability Dismissed STARBUCKS CORP: Obtains Favorable Ruling in Tip Pool Class Action STATE FARM: Loses Judgment Bid in "Baker" Breach of Contract Suit STURM FOODS: Escapes Class Action Over Instant Coffee Packaging SUTTER HEALTH: Court Dismisses "Sidibe" Class Action SYMMETRICOM INC: Being Sold to Microsemi for Too Little, Suit Says TAX CONNECTION: Loses Summary Judgment Bid in TCPA Class Action TCCD INT'L: Deceives Consumers of Buckpower Antler, Suit Claims TEVA PHARMACEUTICALS: Faces Antitrust Class Action Over Aggrenox UMG RECORDINGS: Court Okays Bid to Compel Document Production UMG RECORDINGS: Bid to Dismiss "Burrow" Privacy Suit Denied UNION FIRST: Plans to Settle Stellar One Shareholder Class Action VERENGO INC: Violates TCPA, Class Suit Claims in California VOLKSWAGEN GROUP: Recalls 2.6 Million Vehicles Worldwide WARNER CHILCOTT: Faces Antitrust Suit Over Loestrin 24 Fe WEST MARINE: Court Cites Factors to Consider in Class Settlements WYNDHAM VACATION: Court Clarifies Arbitration Ruling XPRESSPA-JDEE JV: Accord in "Kuznetsov" Suit Wins Final Court OK YOUNG WORLD: Health Dep't Warns About Lead Levels in Bracelets Asbestos Litigation ASBESTOS UPDATE: OneBeacon Future Losses May Exceed NICO Coverage ASBESTOS UPDATE: 5.05MM Shares from AWI PI Trust Held in Treasury ASBESTOS UPDATE: Pittsburg Corning Plan Ruling May be Appealed ASBESTOS UPDATE: Union Carbide Has $555-Million Claims Liability ASBESTOS UPDATE: Union Carbide Insurance Suit Remains Pending ASBESTOS UPDATE: Goodyear Tire Has 74,000 PI Claims Pending ASBESTOS UPDATE: Corning Records $5MM Charge for Fibro Liability ASBESTOS UPDATE: ITT Corp. Records $736.8MM in Claims Liability ASBESTOS UPDATE: ITT Corp. Had 59,000 Pending Claims at Sept. 30 ASBESTOS UPDATE: 3M Co. Continues to Defend Exposure Claims ASBESTOS UPDATE: 3M Co. Records $26-Mil. Aero Product Liability ASBESTOS UPDATE: Ruling v. Titan in Improper Handling Suit Upheld ASBESTOS UPDATE: Crane Co. Dismissed as Defendant in "Tobin" Suit ASBESTOS UPDATE: Mont. High Court Affirms Ruling in Eviction Suit ASBESTOS UPDATE: In Camera Review Needed in "Sweredoski" Suit ASBESTOS UPDATE: W.Va. High Court Affirms "Toney" Ruling ASBESTOS UPDATE: Honeywell Appeal in "Lemberger" Suit Granted ASBESTOS UPDATE: NY Court Denies Stay Request in "Brown" Suit ASBESTOS UPDATE: NY Court Grants Request in "Kestenbaum" Suit ASBESTOS UPDATE: Appeal in "Cook" Suit Partially Granted ASBESTOS UPDATE: White House Rejects FACT Act ASBESTOS UPDATE: Exposure Victims React to House Vote on H.R. 982 ASBESTOS UPDATE: Drilling Mud Claims Are Distinct Fibro Claims ASBESTOS UPDATE: Kansas Carpenter's Trial Into Second Week ASBESTOS UPDATE: AFL-CIO, Victims Blast GOP Bill ASBESTOS UPDATE: Deadly Dust Cleared From Lady Brooks Kindergarten ASBESTOS UPDATE: Educ. Agency Gives Reassurance After Pay Out ASBESTOS UPDATE: House Votes to Increase Fibro Claim Disclosures ASBESTOS UPDATE: Chevron Settles Fibro-Related Death Suit ASBESTOS UPDATE: Chevron, Texaco Dismissed From Exposure Suit ASBESTOS UPDATE: Row Erupts Over Hospital Fibro Safety Breaches ASBESTOS UPDATE: Temporary Fibro Storage Approved by Jersey Agency ASBESTOS UPDATE: Toxic Dust Found in Glasgow Hospital ASBESTOS UPDATE: Fibro Drives Up N.C. Courthouse Repair Costs ASBESTOS UPDATE: Aviva Seeking Buyers for Fibro Claims Portfolio ASBESTOS UPDATE: St. Cloud to Remove Fibro in Tech High School ASBESTOS UPDATE: More Deadly Dust Found in Rock Island School ASBESTOS UPDATE: Wrongful Death Suit vs. Chevron Dismissed ASBESTOS UPDATE: Belleville OKs Fibro Removal at Downtown Bldg. ASBESTOS UPDATE: Garlock Suit Points to Abuse Bill Seeks to Fix ASBESTOS UPDATE: Saskatchewan Registry Law Comes Into Effect ASBESTOS UPDATE: Tascot Carpet Factory Fibro Removal Questioned ASBESTOS UPDATE: EQC Policy Review Could Save Lives ASBESTOS UPDATE: Toxic Dust Halts Kaikohe Hotel Demolition ASBESTOS UPDATE: Fibro Warning Issued in Verge Collection Goods ASBESTOS UPDATE: Lawyer Disputes Findings of Fibro Insurer Report ASBESTOS UPDATE: More Fibro Discovered at Heanor Memorial Hospital ASBESTOS UPDATE: Lumberton Man Gets Over 3 Years in Fibro Case ASBESTOS UPDATE: Expert Pushes for Controlled Ban on Deadly Dust ASBESTOS UPDATE: NHS Treatment Cost Recovery Bill Voted into Law ASBESTOS UPDATE: Plymouth Lawyer Predicts Fibro Cancer Death Spike ASBESTOS UPDATE: Specialists to Clear Toxic Dust From Tuam St. ASBESTOS UPDATE: Asons Warn of Fibro Exposure After Widow Payout ASBESTOS UPDATE: Mesothelioma Research Takes a Hit ASBESTOS UPDATE: Two New Suits Added to St. Clair County Docket ASBESTOS UPDATE: NYC Court Dismisses Crane Co. From Exposure Suit ASBESTOS UPDATE: Wis. Trial Court "Erroneously" Rewrote Verdict ********* ACHILLION PHARMA: Pomerantz Grossman Files Securities Class Action ------------------------------------------------------------------ Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Nov. 22 disclosed that it has filed a class action lawsuit against Achillion Pharmaceuticals, Inc. and certain of its officers. The class action, filed in United States District Court, District of Connecticut, and docketed under 13-cv-1479, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of Achillion between April 21, 2012 and September 27, 2013 both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Achillion securities during the Class Period, you have until December 7, 2013 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Achillion is a biopharmaceutical company that discovers and develops solutions for infectious diseases such as HIV, hepatitis, and resistant bacterial infections. The Company focuses its research and development on products for the antiviral and antibacterial markets. The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects, including the safety and suitability of its premier investigative drug for the treatment of hepatitis, sovaprevir. Defendants failed to inform investors that sovaprevir in fact did not interact well with other drugs commonly administered to treat hepatitis and/or HIV. Specifically, the Company misled investors to believe that even though patients in the Company's clinical trials for sovaprevir had elevations in liver enzymes, that these liver enzymes elevations were transient and returned to baseline values and were attributable to non-drug- related factors. As a result of the foregoing, the Company's statements were materially false and misleading at all relevant times. On July 1, 2013, the Company disclosed that the FDA instituted a clinical hold on "sovaprevir after elevations in liver enzymes associated with significantly higher than anticipated exposures to atazanavir and sovaprevir were noted in a Phase I healthy subject drug-drug interaction study evaluating the effects of concomitant administration of sovaprevir with ritonavir-boosted atazanavir." As a result of this disclosure, Achillion shares declined $2.10 per share or over 25%, to close at $6.26 per share on July 2, 2013. On September 27, 2013, after the market closed, the Company disclosed that the FDA had continued its clinical hold on sovaprevir, after, "the FDA concluded that the removal of the clinical hold is not warranted." As a result of this disclosure, Achillion shares declined $4.22 per share or over 58%, to close at $3.02 per share on September 30, 2013. With offices in New York, Chicago, Florida, and San Diego, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. ALAMEDA COUNTY, CA: Suit vs. GDDF Dismissed With Leave to Amend --------------------------------------------------------------- Ismael E. Axtle, an inmate at the Glen Dyer Detention Facility (GDDF) in Oakland, California, filed this pro se civil rights action under 42 U.S.C. Section 1983 on behalf of federal and state pretrial detainees who were confined at GDDF from October 2009 through December 2012. Mr. Axtle moved for leave to proceed in forma pauperis; for appointment of counsel; and to certify the case as a class action. Also before the Court are Plaintiffs Mario Ochoa Gonzalez and Anthony McGee's motions for leave to proceed in forma pauperis. District Judge Yvonne Gonzalez Rogers said Mr. Axtle's request for leave to proceed in forma pauperis will be granted. However, his request for appointment of counsel is denied without prejudice, as well as his motion to certify the case as a class action. Plaintiffs Gonzalez and McGee are dismissed as Plaintiffs from the action without prejudice to filing their own individual pro se actions, and the Clerk of the Court will return their completed in forma pauperis applications, ruled the Court. Accordingly, ISMAEL E. AXTLE, et al., Plaintiff, v. COUNTY OF ALAMEDA, et al., Defendants, NO. C 12-6404 YGR (PR), (N.D. Cal.) is dismissed with leave to amend, Judge Rogers held. A copy of the District Court's November 8, 2013 Order is available at http://is.gd/wsdbbBfrom Leagle.com. AMERICAN AIRLINES: Class Action Attorneys Want Merger Blocked ------------------------------------------------------------- Terry Maxon, writing for Dallas Morning News, reports that attorneys in a class action lawsuit asked U.S. Bankruptcy Judge Sean Lane on Nov. 21 to block the merger of American Airlines Inc. and US Airways Inc. until a trial is held. The filing sets up a potential showdown on Nov. 25 as American and parent AMR Corp. go before Lane to ask that he let them exit bankruptcy and merge with US Airways. The plaintiffs in the private antitrust lawsuit want Lane to issue a temporary restraining order to delay the merger until he can hear the suit filed by San Francisco attorneys Joseph Alioto and David Cook. In a filing on Nov. 21, Judge Alioto defended the fact that the plaintiffs waited so long to file their request for an injunction. Judge Alioto argued that the U.S. Department of Justice settled its antitrust case with American and US Airways only nine days earlier, on Nov. 12. Until then, he wrote, the private plaintiffs had no basis to ask for a restraining order. "The motion for a temporary restraining order or for a preliminary injunction could not have been brought sooner and now that irreparable harm is threatened by the prospect of a consummated merger on short notice, plaintiffs are similarly requesting that their motion for a temporary restraining order be heard on short notice," the filing said. American and US Airways announced their proposed merger Feb. 14 and were on track to close the merger around Sept. 1. But the Justice Department and a number of states filed a lawsuit Aug. 13 to stop the transaction. The Nov. 12 settlement requires the new American Airlines Group to give up gates at seven airports as well as takeoff and landing rights at two of them. U.S. District Judge Colleen Kollar-Kotelly has given her preliminary approval to the settlement, which must be published and undergo a 60-day comment period. The airlines indicated that they don't expect the Alioto lawsuit to delay their merger. "The District Court has entered orders allowing us to close the merger, so we can close once we obtain Bankruptcy Court and certain other approvals," American and US Airways said in a joint statement on Nov. 21. "We expect to close the transaction next month." ANGELCARE MOVEMENT: Recalls Repair Movement & Sound Baby Monitors ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission (CPSC), in cooperation with Angelcare Monitors Inc., of Quebec, Canada, is announcing a voluntary recall to provide cord covers for 600,000 Angelcare Movement and Sound Monitors with Sensor Pads. The cord attached to the baby monitor's sensor pad is placed under the crib mattress, which poses a strangulation risk if the child pulls the cord into the crib and it becomes wrapped around the neck. Angelcare and CPSC have received reports of two infant cord strangulation deaths. In November 2011, a 13-month-old female died in San Diego, California, and, in August 2004, an 8-month-old female died in Salem, Oregon. In both fatalities, the cord from the sensor pads was pulled into the crib by the infant. In addition, there have been two reports of infants who became entangled in cords of Angelcare baby monitor models, which did not result in fatalities. In these incidents, it could not be determined if the "sensor pad cord" or the "monitor cord" was involved in the incident. The recall involves the Movement and Sound Monitor manufactured by Angelcare. This design of baby monitor includes a unique sensor pad placed inside the crib, under the mattress, to monitor movement of the baby. An electrical cord about 11 feet long is permanently connected from the sensor pad to the nursery monitor unit. The hazard is created by a cord within reach of a baby inside the crib. The cord can be pulled into the crib and can wrap around the child's neck. The recall involves all versions of Angelcare sensor monitors including model numbers: AC1100, AC201, AC300, AC401 AC601 and 49255 that did not include rigid cord covers, offered in the remedy. The model number is located on the back of the nursery monitor unit. The monitors were manufactured between 1999 and 2013. Angelcare is providing consumers with a repair kit that includes rigid protective cord covers through which the sensor pad cords can be threaded, a new, permanent electric cord warning label about the strangulation risk, and revised instructions. The recalled baby monitors were sold at Babies R Us/Toys R Us, Burlington Coat Factory, Meijer, Sears, Walmart, Amazon.com, Target.com, Overstock.com, and nearly 70 small baby specialty stores, from October 1999 through September 2013 for about $100 to $300. Consumers should immediately make sure cords are placed out of reach of the child and contact Angelcare toll-free at (855)355- 2643 between 8 a.m. and 8 p.m. ET Monday through Friday or visit the firm's website at www.angelcarebaby.com to order the free repair kit. BAILEY BOYS: Recalls Children's Pajamas Due to Fire Hazard ---------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with The Bailey Boys, Inc., located in Saint Simons Island, Ga., announced a voluntary recall of about 2,000 Boy's Loungewear Pants. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The pajama pants fail to meet federal flammability standards for children's sleepwear, posing a risk of burn injuries to children. There were no incidents that were reported. The recall involves The Bailey Boys' children's 100% cotton loungewear pants, sold in sizes toddler 2 through boys' 12. All of the pajama pants have an elastic waistband with a white drawstring and a garment label that states "J.Bailey clothing for young men." The pajama pants were sold in multiple prints including Chad-Ball red baseball print, Chad-Base two colored red baseball print, Chad-Boat light blue boat print, Chad Crab grey crab print, Chad-Golf light gray print, Chad-Santa green Santa Clause print, Chad-Sea grey blue seahorse print, Chad-Turtle dark blue turtle print and Chad-Turtle light blue turtle print. The website http://www.jbaileyclothing.comis printed on a hangtag attached to the garment. Pictures of the recalled products are available at: http://is.gd/G3AZUm The recalled products were manufactured in El Salvador and sold at children's boutiques nationwide from September 2012 through August 2013 for about $25. Consumers should immediately take the recalled pajama pants away from children, and return them to The Bailey Boys, Inc. for a full refund. BED BATH: Faces "Beck" Suit in Pennsylvania Over Unpaid Overtime ---------------------------------------------------------------- Jason Beck accuses Bed Bath & Beyond Inc. of cheating its employees of overtime compensation. He alleges that the Company calculates overtime through an illegal "fluctuating workweek." Mr. Beck is represented by: Peter D. Winebrake, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 The case is Beck v. Bed Bath & Beyond Inc., Case No. 131100176, in the Philadelphia Court of Common Pleas. BRITISH AIRWAYS: Court Tosses Motion to Dismiss "Dover" Case ------------------------------------------------------------ District Judge Raymond J. Dearie denied a motion to dismiss the case captioned RUSSEL DOVER, JONATHAN STONE, CODY RANK, and SUZETTE PERRY, on behalf of themselves and all others similarly situated, Plaintiffs, v. BRITISH AIRWAYS, PLC (UK), Defendant, NO. 12 CV 5567 (RJD) (MDG), (E.D. N.Y.). Members of defendant British Airways' frequent flyer program allege that the airline violated the program contract by imposing impermissible fuel surcharges on rewards flights. More specifically, the plaintiffs assert that the fuel surcharges assessed by British Airways were not actually based on the cost of fuel. British Airways moved to dismiss on the grounds that the lawsuit (1) is preempted by federal regulations and (2) fails to plausibly allege that the fuel surcharges were not based on the cost of fuel. "At this stage . . . this Court is not called upon to judge the merits of the competing analyses. Assuming that plaintiffs' factual allegations are true and drawing reasonable inferences in their favor, as the Court must, they have stated a plausible claim for breach of the Terms and Conditions," ruled Judge Dearie. A copy of the District Court's November 8, 2013 Memorandum and Order is available at http://is.gd/wXvodBfrom Leagle.com. C&S WHOLESALE: "Chan" Employment Suit Transferred to E.D. Cal. -------------------------------------------------------------- The purported class action lawsuit styled Jose Chan v. C&S Wholesale Grocers Inc., et al., Case No. 2:13-cv-06357, in the U.S. District Court for the Central District of California, was transferred to the U.S. District Court for the Eastern District of California (Sacramento). The case is now captioned Jose Chan v. C&S Wholesale Grocers Inc., et al., Case No. 2:13-cv-02140 (E.D. Cal., October 16, 2013). The lawsuit is brought on behalf of members of the general public similarly situated to the Plaintiff and on behalf of aggrieved employees of the Defendants. The Plaintiff is represented by: R. Rex Parris, Esq. Alexander Russell Wheeler, Esq. R. REX PARRIS LAW FIRM 43364 10th Street West Lancaster, CA 93534 Telephone: (661) 949-2595 Facsimile: (661) 949-7524 E-mail: rrparris@rrexparris.com awheeler@rrexparris.com - and - Edwin Aiwazian, Esq. Jonathan Michael Lebe, Esq. LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 E-mail: edwin@lfjpc.com jon@lfjpc.com The Defendants are represented by: Brandon Reed McKelvey, Esq. Julie Grace Yap, Esq. SEYFARTH SHAW LLP 400 Capitol Mall, Suite 2350 Sacramento, CA 95814 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 E-mail: brandonmckelvey@gmail.com jyap@seyfarth.com - and - Jon D. Meer, Esq. SEYFARTH SHAW LLP (LOS ANGELES) One Century Plaza 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3063 E-mail: jmeer@seyfarth.com - and - Andrew M. McNaught, Esq. Emily Eschenbach Barker, Esq. SEYFARTH SHAW LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: amcnaught@seyfarth.com ebarker@seyfarth.com CAREER EDUCATION: April 2014 Settlement Fairness Hearing Set ------------------------------------------------------------ The following statement is being issued by Motley Rice LLC and Grant & Eisenhofer P.A. regarding the Career Education Corporation Class Action Litigation. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION THURMAN ROSS, by and on behalf of himself and all others similarly situated, Plaintiff, v. CAREER EDUCATION CORPORATION, GARY E. McCULLOUGH and MICHAEL J. GRAHAM, Defendants. No. 12-CV-00276. Hon. John W. Darrah SUMMARY NOTICE TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED THE COMMON STOCK OF CAREER EDUCATION CORPORATION FROM FEBRUARY 19, 2009, THROUGH NOVEMBER 21, 2011, INCLUSIVE YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Northern District of Illinois, that a hearing will be held on April 3, 2014, at 10:00 a.m., before the Honorable John W. Darrah, at the United States District Court, Northern District of Illinois, Eastern Division, Everett McKinley Dirksen United States Courthouse, Courtroom 1203, 219 South Dearborn Street, Chicago, IL 60604, for the purpose of determining (1) whether the proposed settlement of the claims in the Litigation for the principal amount of $27,500,000, plus accrued interest, should be approved by the Court as fair, just, reasonable, and adequate; (2) whether a Final Judgment and Order of Dismissal with prejudice should be entered by the Court dismissing the Litigation with prejudice; (3) whether the Plan of Allocation is fair, reasonable, and adequate and should be approved; and (4) whether the application of Lead Counsel for the payment of attorneys' fees in the amount of 25% and expenses not to exceed $500,000 in connection with this Litigation should be approved. IF YOU PURCHASED OR ACQUIRED ANY OF THE COMMON STOCK OF CEC DURING THE PERIOD FROM FEBRUARY 19, 2009, TO NOVEMBER 21, 2011, INCLUSIVE, YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION. You may obtain copies of a detailed Notice of Proposed Settlement of Class Action and a copy of the Proof of Claim and Release form by writing to CEC Securities Litigation, c/o Heffler Claims Group, PO Box 58669, Philadelphia, PA 19102, visiting the internet at http://www.CecSecuritiesLitigation.comor calling the Claims Administrator at 855-887-3479. Inquiries other than requests for the above-referenced documents may also be made to Plaintiffs' Lead Counsel: James M. Hughes, Esq. Motley Rice LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Telephone: (843) 216-9000 Jeffrey A. Almeida Grant & Eisenhofer P.A 123 Justison St. Wilmington, DE 19801 Telephone: (302) 622-7000 E-mail: jalmeida@gelaw.com If you are a Class Member, in order to share in the distribution of the Net Class Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than March 22, 2014, establishing that you are entitled to recovery. NOTE THAT NO CLAIMS LESS THAN $10.00 WILL BE PROCESSED OR PAID. If you purchased or otherwise acquired CEC common stock and you desire to be excluded from the Class, you must submit a request for exclusion postmarked no later than March 22, 2014, in the manner and form explained in the detailed Notice referred to above. All Members of the Class who do not timely and validly request exclusion from the Class will be bound by any judgment entered in the Litigation pursuant to the Stipulation of Settlement. Any objection to the settlement must be received, not simply postmarked, by each of the following recipients no later than March 21, 2014: CLERK OF THE COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION EVERETT MCKINLEY DIRKSEN UNITED STATES COURTHOUSE 219 South Dearborn Street Chicago, IL 60604 Lead Counsel for Plaintiffs: MOTLEY RICE LLC James M. Hughes, Esq. 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 E-mail: jhughes@motleyrice.com GRANT & EISENHOFER P.A. Jeffrey A. Almeida, ESq. 123 Justison St. Wilmington, DE 19801 Counsel for Defendant Career Education Corporation: Jones Day Lee Ann Russo, Esq. 77 W. Wacker Dr. Chicago, IL 60601-1692 E-mail: larusso@jonesday.com Counsel for Gary E. McCullough: KATTEN MUCHIN ROSENMAN LLP Mary Ellen Hennessy, Esq. 525 West Monroe Street Chicago, IL 60661 E-mail: maryellen.hennessy@kattenlaw.com PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. If you have any questions about the settlement, you may contact Lead Counsel at the address listed above. DATED: November 22, 2013 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CHINA EXPERT: February 2014 Settlement Fairness Hearing Set ----------------------------------------------------------- The Rosen Law Firm, P.A. on Nov. 22 disclosed that the United States District Court Southern District of New York has approved the following announcement of a proposed class action settlement that would benefit purchasers of common stock of China Expert Technology, Inc.: SUMMARY NOTICE OF PROPOSED CLASS ACTION SETTLEMENT TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED THE COMMON STOCK OF CHINA EXPERT TECHNOLOGY, INC. DURING THE PERIOD FROM MARCH 31, 2006 THROUGH OCTOBER 1, 2007, INCLUSIVE. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Southern District of New York in the above- captioned action, that a hearing will be held on February 5, 2014 at 2:30 p.m. in courtroom 14D before the Honorable Alvin K. Hellerstein, United States District Judge of the Southern District of New York, 500 Pearl Street, New York, New York 10007 (the "Settlement Hearing") for the purpose of determining: (1) whether the proposed Settlement between Plaintiffs and PKF Hong Kong, Certified Public Accountants ("PKF HK"), PKF, Certified Public Accountants, A Professional Corporation (sued herein as PKF New York, Certified Public Accountants, A Professional Corporation) ("PKF NY"), and BDO Ltd., Certified Public Accountants ("BDO") (collectively, the "Settling Defendants") consisting of the sum of $4,200,000, should be approved by the Court as fair, reasonable, and adequate; (2) whether the proposed plan to distribute the settlement proceeds is fair, reasonable and adequate; (3) whether the application for an award of attorneys' fees of 25.0% of the Settlement amount, reimbursement of expenses of not more than $755,000, and awards to each Class Representative not to exceed $5,000 should be approved; and (4) whether the Litigation should be dismissed with prejudice. If you purchased or otherwise acquired common stock of China Expert Technology, Inc. during the period from March 31, 2006 through October 1, 2007, inclusive, your rights may be affected by the Settlement of this action. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action and a copy of the Proof of Claim and Release, you may obtain copies by writing to China Expert Securities Litigation, c/o Strategic Claims Services, Claims Administrator, 600 North Jackson Street, Suite 3, P.O. Box 230, Media, PA 19063, or going to the website, http://www.strategicclaims.net If you are a member of the Class, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than January 9, 2014, establishing that you are entitled to recovery. Unless you submit a written exclusion request, you will be bound by any judgment rendered in the Litigation whether or not you make a claim. To exclude yourself from the Class, you must submit a Request for Exclusion to the Claims Administrator in the manner detailed in the Notice, and postmarked no later than January 9, 2014. Any objection to the Settlement, Plan of Allocation, or the Plaintiffs' Counsel's request for an award of attorneys' fees and reimbursement of expenses and awards to Class Representatives must be received by the addresses below and made in the manner indicated in the Notice by no later than January 9, 2014. Court Clerk of the Court United States District Court Southern District of New York 500 Pearl Street New York, NY 10007 Plaintiffs' Counsel Laurence Rosen ROSEN LAW FIRM, P.A. 275 Madison Avenue 34th Floor New York, NY 10016 Defense Counsel Thomas R. Manisero, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 150 East 42nd Street New York, NY 10017 E-mail: thomas.manisero@wilsonelser.com James J. Farrell, Esq. LATHAM & WATKINS, LLP 355 S. Grand Ave. Los Angeles, CA 90071 E-mail: james.farrell@lw.com Neal R. Marder, Esq. WINSTON & STRAWN LLP 333 S. Grand Avenue Los Angeles, CA 90071 If you have any questions about the Settlement, you may call or write to Plaintiffs' Counsel identified above. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. DATED: NOVEMBER 15, 2013 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Laurence Rosen, Esq. ROSEN LAW FIRM, P.A. 275 Madison Avenue 34th Floor New York, NY 10016 212-686-1060 E-mail: lrosen@rosenlegal.com CONAIR CORP: Cuisinart Unit Recalls Food Processors --------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Cuisinart, a division of Conair Corp., of Stamford, Conn., announced a voluntary recall of about 25,000 Cuisinart 7-cup food processors. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The reversible slicing/shredding disc can loosen when in use and the blade can strike and break the food processor's cover. The cover's broken plastic pieces can hit consumers, posing a laceration hazard. Cuisinart has received one report of an incident involving a consumer being struck on the cheek by a piece of the food processor's plastic cover that cracked off while the reversible slicing disc was being used. No medical attention was sought. The recall involves nine models of Cuisinart food processors including, MFP-107, MFP-107BC, MFP-107BCWS, MFP-107BK, MFP- 107BKWS, MFP-107DCWS, MFP-107MGSLT, MFP-107MR or MFP-107WS. The model number is on the underside of the food processor base. The food processors were sold in white, black, brush chrome, metallic gray, metallic red and silver colors. They have a seven cup plastic work bowl and three push buttons "On," "Pulse" and "Off." Cuisinart is stamped on the front. Pictures of the recalled products are available at: http://is.gd/I9PvOA The recalled products were manufactured in China and sold at Belk, Best Buy, Dillards, J.C. Penney, Macy's, Sears, Williams-Sonoma and other stores nationwide, and online at Amazon.com and Zappos.com from October 2012 through June 2013 for about $100. Consumers should immediately stop using the recalled food processors and contact Cuisinart to receive a free replacement lid and reversible slicing/shredding disc. DISTRICT OF COLUMBIA: Loses Bid to Dismiss IDEA Violation Suit -------------------------------------------------------------- Pending before the Court in the case captioned DL, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. THE DISTRICT OF COLUMBIA, et al., Defendants, NO. 05-1435, (D.D.C.), are the plaintiffs' Motion for Class Certification and Reinstatement of Findings of Liability and Order Granting Relief; the plaintiffs' Motion to Amend the First Amended Complaint; and the defendants' Motion to Dismiss for Lack of Jurisdiction. Plaintiffs -- residents of the District of Columbia and former preschool-age children with various disabilities -- filed the lawsuit in 2005, alleging that the District failed to provide them a free appropriate public education (FAPE) in violation of the Individuals with Disabilities Education Act (IDEA). Upon consideration of the motions, District Judge Royce C. Lamberth grants in part and denies in part the plaintiffs' Motion for Class Certification and Reinstatement of Findings of Liability and Order Granting Relief; grants the plaintiffs' Motion to Amend the First Amended Complaint; and denies the defendants' Motion to Dismiss for Lack of Jurisdiction. The Court certifies these subclasses: SUBCLASS 1: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the Individuals with Disabilities Education Act (IDEA), lived or will live in, or were or will be wards of, the District of Columbia, and were not or will not be identified and/or located for the purposes of offering special education and related services. REPRESENTATIVES: Subclass 1 will be represented by named plaintiffs D.L. and J.B. SUBCLASS 2: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive an initial evaluation within 120 days of the date of referral for the purposes of offering special education and related services. REPRESENTATIVES: Subclass 2 shall be represented by named plaintiffs T.F. and H.W. SUBCLASS 3: All children, who, when they were or will be between the ages of three and five, were or will be disabled, as defined by the IDEA, lived or will live in, or were or will be wards of, the District of Columbia, and did not or will not receive a determination of eligibility within 120 days of the date of referral for special education and related services. REPRESENTATIVES: Subclass 3 shall be represented by named plaintiffs D.L., H.W., and T.F. SUBCLASS 4: All children with disabilities, as defined by the IDEA, who lived in or will live in, or are or will be wards of, the District of Columbia, and who participated or will participate in early intervention programs under Part C of IDEA, and who participated or will participate in preschool programs under Part B, and who did not or will not have a "smooth and effective" transition from Part C to Part B by the child's third birthday. A transition shall be considered "smooth and effective" if (1) the transition begins no less than 90 days prior to the child's third birthday; (2) the child is provided with an IEP listing both the type of placement and a specific location for services by the child's third birthday; (3) there is no disruption in services between Part C and Part B services; and (4) Part B personnel are involved in the transition process. REPRESENTATIVES: Subclass 4 shall be represented by named plaintiffs X.Y. and T.L. A copy of the District Court's November 8, 2013 Memorandum Opinion is available at http://is.gd/a9Z5T1from Leagle.com. DUANE READE: Appeals Cert. Order in "Jacob" Employment Suit ----------------------------------------------------------- Duane Reade Holdings, Inc. and Duane Reade, Inc., appealed from an order related to the certification of a class in the lawsuit filed by Mani Jacob, et al. The United States District Court for the Southern District of New York previously granted, in part, and denied, in part, Duane Reade's motion for reconsideration of the certification order. In his original complaint, Mr. Jacob alleged that Duane Reade maintains a policy of depriving its assistant store managers, including him, of wages they are entitled under the law by misclassifying them as exempt executives. The appellate case is Jacob, et al. v. Duane Reade, Inc., Case No. 13-03873, in the United States Court of Appeals for the Second Circuit. The original case is Jacob v. Duane Reade, Inc., et al., Case No. 11-cv-00160, in the United States District Court for the Southern District of New York. The Plaintiffs-Appellees are represented by: Molly A. Brooks, Esq. Adam T. Klein, Esq. Michael J. Scimone, Esq. OUTTEN & GOLDEN LLP 3 Park Avenue New York, NY 10016 Telephone: (212) 245-1000 E-mail: mb@outtengolden.com atk@outtengolden.com mscimone@outtengolden.com The Defendants-Appellants are represented by: Craig R. Benson, Esq. Stephen Andrew Fuchs, Esq. Christine Hogan, Esq. LITTLER MENDELSON, P.C. 900 3rd Avenue New York, NY 10022 Telephone: (212) 583-9600 E-mail: cbenson@littler.com sfuchs@littler.com clhogan@littler.com DUOYUAN PRINTING: Court Dismisses 7 Defendants in "Schmitz" Suit ---------------------------------------------------------------- NORMAN M. SCHMITZ and STEVEN R. DIEHL, Individually, On Behalf of All Others Similarly Situated, and Derivatively On Behalf of Nominal Defendant DUOYUAN PRINTING, INC., Plaintiffs, v. XIQING DIAO, WENHUA GUO, BAIYUN SUN, CHRISTOPHER PATRICK HOLBERT, WILLIAM D. SUH, JAMES ZHANG, LIANJUN CAI, PUNAN XIE, SIK SIU KWAN, and CHUI MAN LUNG EVERETT, Defendants, and DUOYUAN PRINTING, INC., Nominal Defendant, CASE NO. 11-CV-157-S, (D. Wyo.), is before the Court on three motions to dismiss: (1) Defendants Xiqing Diao, Wenhua Guo, Christopher Patrick Holbert, William D. Suh, Lianjun Cai, Punan Xie, and Sik Siu Kwan's "Motion to Dismiss the Complaint Pursuant to Rule 12(b)(2)"; (2) Defendants Xiqing Diao, Wenhua Guo, Christopher Patrick Holbert, William D. Suh, Lianjun Cai, and Punan Xie's "Motion to Dismiss the Complaint Pursuant to Rule 12(b)(1) and 12(b)(6)"; and (3) Defendant Sik Siu Kwan's "Motion to Dismiss the Complaint". In a November 7, 2013 Order available at http://is.gd/OpAUK0from Leagle.com, District Judge Scott W. Skavdahl finds and concludes that the Court has subject matter jurisdiction but lacks personal jurisdiction over the Individual Defendants. Accordingly, the Individual Defendants' "Motion to Dismiss the Complaint Pursuant to Rule 12(b)(1) and 12(b)(6)" is denied. Individual Defendants' demand to dismiss this action for lack of subject matter jurisdiction is denied because the Court concludes that it possesses subject matter jurisdiction. The Individual Defendants' demand to dismiss the complaint for failure to state a claim upon which relief can be granted is denied as moot due to the Court's lack of personal jurisdiction over Individual Defendants. The Individual Defendants' "Motion to Dismiss the Complaint Pursuant to Rule 12(b)(2)" is granted. Defendants Xiging Diao, Wenhua Quo, Christopher Patrick Holbert, William D. Sufi, Lianjun Cai, and Punan Xie are dismissed from the lawsuit. Defendant Sik Siu Kwan's "Motion to Dismiss the Complaint" is denied as moot because Plaintiffs voluntarily dismissed her from the lawsuit, according to Judge Skavdahl. ELLIPTIGO INC: Recalls Elliptical Cycles Due to Fall Hazard ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with ElliptiGO Inc., of Solana Beach, Calif., announced a voluntary recall of about 7,000 in the U.S. and 200 in Canada ElliptiGO outdoor elliptical cycles. 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 on the ElliptiGO cycles can separate and the drive arm axles can detach during use, posing a fall hazard. ElliptiGO has received one report of the fork separating and ten reports of the drive arm detaching. One injury consisting of a minor abrasions caused by a drive arm detaching has been reported. The ElliptiGO 3C, 8C and 11R models are outdoor elliptical cycles used by adults for exercise. It is a scooter-like device that combines an elliptical trainer with a bicycle. The ElliptiGO cycles have an aluminum frame, drive arms, two 20" spoked-wheels, an internally geared hub, front and rear brakes and adjustable- height steering column. All cycles have the word "ElliptiGO" along the outside of the frame. The 3C and 8C model cycles have a "C-Series" decal towards the rear of the frame and aluminum drive arms. The recalled 11R cycles are matte black with white markings and the "11R" decal is found towards the rear of the frame. The serial numbers on all models are located on the frame in front of the back wheel near where the kickstand attaches to the frame. Serial number ranges for the recalled 3C and 8C models are from 11-010-001 through 13-028-102, and for the 11R model from 12-003- 069 through 12-020-035. Pictures of the recalled products are available at: http://is.gd/A5iqos The recalled products were manufactured in Taiwan and sold at ElliptiGO Inc. online at elliptigo.com and through various specialty bicycle and specialty fitness retailers nationwide from April 2011 through October 2013 for about $1,800 to $3,500. Consumers should stop using recalled ElliptiGO cycles until they have the fork upgraded with a safety retrofit and/or upgraded replacement drive arm axles installed. Consumers with affected cycles can contact ElliptiGO online at www.elliptigo.com/safety to locate the authorized repair center closest to them. FIRST PREMIER: Faces Suit Over ACH Network Used to Collect Debts ---------------------------------------------------------------- Angel L. Gordon, on Behalf of Herself and All Others Similarly Situated v. First Premier Bank, a South Dakota State-Chartered Bank; Bay Cities Bank, a Florida State-Chartered Bank; Missouri Bank & Trust; and National Bank of California, Case No. 2:13-cv- 06138-WJM-MF (D.N.J., October 16, 2013) seeks to recover damages and other relief available at law on behalf of proposed class members, who have been injured by the Defendants' alleged participation in a scheme to access and utilize the Automated Clearing House network to collect unlawful debts. First Premier is a South Dakota state-chartered bank with main offices in Sioux Falls, South Dakota. Bay Cities is a state- chartered bank with main offices in Tampa, Florida. MBT is a Missouri state-chartered bank with main offices in Kansas City, Missouri. NBCal is national banking association incorporated in California with main offices in Los Angeles, California. The Plaintiff is represented by: James C. Shah, Esq. Natalie Finkelman Bennett, Esq. SHEPHERD, FINKELMAN, MILLER 475 White Horse Pike Collingswood, NJ 08107 Telephone: (856) 858-1770 Facsimile: (856) 858-7012 E-mail: jshah@sfmslaw.com nfinkelman@sfmslaw.com - and - Norman E. Siegel, Esq. Steve Six, Esq. J. Austin Moore, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 E-mail: siegel@stuevesiegel.com six@stuevesiegel.com moore@stuevesiegel.com - and - Darren T. Kaplan, Esq. CHITWOOD HARLEY HARNES LLP 1350 Broadway, Suite 908 New York, NY 10018 Telephone: (917) 595-3600 Facsimile: (404) 876-4476 E-mail: dkaplan@chitwoodlaw.com - and - Hassan A. Zavareei, Esq. Jeffrey D. Kaliel, Esq. Anna C. Haac, Esq. TYCKO & ZAVAREEI LLP 2000 L Street, N.W., Suite 808 Washington, D.C. 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 E-mail: hzavareei@tzlegal.com jkaliel@tzlegal.com ahaac@tzlegal.com - and - Jeffrey M. Ostrow, Esq. Jason H. Alperstein, Esq. KOPELOWITZ OSTROW P.A. 200 S.W. 1st Avenue, 12th Floor Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 E-mail: ostrow@KOlawyers.com alperstein@KOlawyers.com FRESH INC: Obtains Final Court Approval of "Owen" Suit Settlement ----------------------------------------------------------------- District Judge Stephen V. Wilson grants final approval of the settlement agreement resolving the case captioned TESSA OWEN, individually and on behalf of all others similarly situated Plaintiffs, v. FRESH, INC., and DOES 1 through 10, Defendants, NO. CV 12-7971 SVW, (C.D. Cal.). The Court confirms as final its preliminary certification for settlement purposes, pursuant to Rule 23 of the Federal Rules of Civil Procedure, of a settlement class defined as: "All persons who purchased merchandise with a credit card at a Fresh, Inc. store in California during the Class Period who were requested to and did provide personal identification information, including but not limited to their street address, email address, telephone number, and/or zip code, which was then recorded by a Fresh, Inc. employee, excluding transactions where such personal identification information was collected for shipping, delivery, or servicing of the purchased merchandise or for special orders." The Court confirms as final its preliminary certification of Plaintiff Tessa Owen as the representative of the Settlement Class; and its preliminary appointment of the law firm of Wucetich & Korovilas LLP as class counsel. The Court also grants Plaintiff's unopposed motion for attorneys' fees and costs and for an enhancement award to Plaintiff. A copy of the District Court's November 8, 2013 Final Order and Judgment is available at http://is.gd/uQ7J9Ffrom Leagle.com. GOOGLE INC: Copyright Class Action Over Digital Library Dismissed ----------------------------------------------------------------- Legal Info reports that on November 14, 2013, a class-action lawsuit against Google concerning the company's unapproved scanning and uploading of copyright materials was dismissed in the U.S. District Court for the Southern District of New York (SDNY). The judge ruled that Google's use of copyrighted material was a "beneficial service" in that it gave users only "snippets" of information, which led to awareness of and access to many works. The case primarily concerned Google Books Library Project, which scans collections of major research libraries and makes them searchable. With its advanced scanning techniques, it provides participating libraries with digital copies of books as long as a physical copy is actually in the library. Google admitted that copyright owners of the books did not give consent and they did not receive any compensation. However, Google claimed the entire operation was legal under the "fair use" clause, contained in Section 107 of the U.S. Copyright Act. It states that there is no such infringement if the digital copies are to be used to benefit research or education. In dismissing the lawsuit, the court found Google's service to be "transformative." It took several factors into account in its judgment, including a lack of "for profit" motive and the proportional amount of material taken from each book. Google's "fair use" defense has also served it well on other occasions. Copyright infringement has been charged against Google on several occasions. For instance, this lawsuit was filed in July 2005, along with two others that year. Agence-France-Presse (AFP opened a lawsuit, claiming that Google had taken material illegally from its website. The Association of American Publishers also filed against Google for scanning documents to be used with its Library Project. Google was successful in both defenses. In 2012, Google was also successful in another case, using the "fair use" exception. HAWAII: Order Dismissing Suit vs. Circuit Judges Stands ------------------------------------------------------- Plaintiffs in JERRY AGBANNAOAG, ON BEHALF OF HIMSELF AND ON BEHALF OF ALL OTHERS, SIMILARLY SITUATED, ET AL., Plaintiffs, v. THE HONORABLE JUDGES OF THE CIRCUIT COURT OF THE FIRST CIRCUIT OF THE STATE OF HAWAII, AS INDIVIDUALS ACTING IN THEIR OFFICIAL CAPACITIES, ET AL., Defendants, CIV. NO. 13-00205 BMK, (D. Haw.), seek reconsideration of the Court's order granting defendants' motion to dismiss. The Court had dismissed Plaintiffs' Complaint with prejudice on grounds of judicial immunity and Younger abstention. The Plaintiffs contend that the Court committed manifest error in granting Defendants' Motion to Dismiss. Magistrate Judge Barry M. Jurren denied the Plaintiffs' Motion for Reconsideration saying it does not "set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Plaintiffs do not present arguments that justify the "extraordinary remedy" of reversing its Order dated September 20, 2013, he said. A copy of the District Court's November 8, 2013 Order is available at http://is.gd/H1onqrfrom Leagle.com. HOFFBERGER MOVING: Court Extends Collective Action Opt-in Period ---------------------------------------------------------------- HERBERT JONES, et al. Plaintiffs, v. HOFFBERGER MOVING SERVICES LLC, et al. Defendants, CIVIL NO. 13-CV-0535-JKB, (D. Md.) was filed on February 19, 2013, (1) as a putative collective action for failing to pay wages due under the Fair Labor Standards Act, 29 U.S.C. 206, et seq., and (2) as a putative class action for violations of the Maryland Wage Payment and Collection Act and the Maryland Wage and Hour Law. Presently before the Court is a three-count complaint, in which Plaintiffs seek to bring their claims under the FLSA (Count III) as a collective action pursuant to 29 U.S.C. Section 216(b). On July 23, 2013, the Court allowed the case to proceed as a collective action. On July 30, 2013, it granted Plaintiffs' unopposed request to extend the deadline for sending opt-in notices to putative collective action members until August 8, 2013. On August 27, 2013, the Court granted Plaintiffs' unopposed request to extend the deadline to either accept or reject Defendants' offer of judgment until September 11, 2013. As of November 6, 2013, 39 plaintiffs -- including Plaintiffs Jones, Jones, McFadden, and Green -- have opted-in to the collective action. Pending before the Court is the Plaintiffs' motion for extension of time and other relief. District Judge James K. Bredar granted in part and denied in part, the Plaintiffs' motion saying the Court will allow Plaintiffs five business days from the date of the accompanying order to send to all current HMS employees who are putative collective action members an additional notice of collective action and a letter explaining their rights as they relate to the collective action. In addition, the Court will extend the collective action opt-in period for an additional twenty-one days from the date of the accompanying order. "The Court cannot, however, extend the deadline for Plaintiffs to accept Defendants' offer of judgment," ruled Judge Bredar. "The offer of judgment therefore stands unmodified as to the twenty- five individuals named in Exhibit A of the stipulated and agreed partial judgment. That offer expired on September 11, 2013, as mutually agreed by the parties." Further, the Court also noted that the additional offer made in Defendants' submission, styled "response to motion for extension of time and other relief and memorandum of law," is a legal nullity. "Indeed, that offer was conditional on the court denying Plaintiffs' request to extend the collective action opt-in deadline. Given that the Court is ordering such an extension, that offer is void," Judge Bredar said. The Court advised both parties to take all necessary steps and precautions to ensure that all future communications with members of the putative collective action are "neutral, balanced, and complete." Should either party fail to meet this standard, the Court will take appropriate measures, Judge Bredar concluded. A copy of the District Court's November 8, 2013 Memorandu is available at http://is.gd/TrTsvOfrom Leagle.com. HULU LLC: Seeks Summary Judgment in Suit Alleging Privacy Claims ---------------------------------------------------------------- Writing for Courthouse News Service, Nick McCann reports that Hulu asked a federal judge to take its side in the class action alleging illegal disclosure of viewer data to Facebook and a business-analytics service. Joseph Garvey is the lead plaintiff in the February 2012 lawsuit claiming that Hulu "repurposed" its browser cache so marketing- analysis services could store users' private data. While U.S. Magistrate Judge Laurel Beeler gutted the case last June, she deferred ruling on the alleged violation of the federal Video Privacy Protection Act (VPPA), enacted in 1988 after a Washington, D.C., newspaper published the video-rental history of Supreme Court nominee Robert Bork. A summary judgment hearing is scheduled for Feb. 6, 2014. Hulu had said the class could not prove injury to establish standing, since that would require a recitation of watched videos, and how third parties received this information. The VPPA permits disclosure to third parties as an "ordinary course of business," according to Hulu's brief by O'Melveny & Myers attorney Randall Edwards. It disputes the class's claims that it used the analytics service comScore and Facebook "like" buttons to store user data. In a motion for summary judgment, the video site argued that, unlike in the Bork case, Hulu did not identify its users by name. Hulu filed the motion under seal in early October, and the San Francisco court posted a redacted document on Oct. 31. "Over the past two years, plaintiffs have continuously changed their theories of disclosure, ultimately narrowing them to those presented in their class certification motion: one related to comScore and the other related to Facebook," attorney Robert M. Schwartz wrote in the motion. "But neither theory involves any knowing disclosure by Hulu of the actual name of a customer, linked to a video title." With regard to the Facebook "like" button, Hulu claimed there is no evidence that Facebook actually gathered the actual name of users from Hulu or linked identifiers to people's names or the titles of videos they watched. For comScore, Hulu said there is no evidence that the company "reverse engineered" Hulu users anonymous user IDs to find users names. "The VPPA does not impose liability on someone who discloses non- identifying information that a third party subsequently manipulates," attorney Schwartz wrote. "Hulu takes its users' privacy rights seriously and protects them vigorously. Under any reasonable application of the VPPA, the court can and should dispose of this case now." Sustaining the VPPA claim requires the class to prove that Hulu "knowingly disclosed personal identifying information identifying a particular person and the particular video that person requested or watched," Schwartz wrote (italics in original). The class cannot prove that Hulu disclosed both these elements, the attorney said. "As a factual matter, plaintiffs' claim requires the court to assume that third parties manipulated the non-identifying user information that Hulu had disclosed," he wrote. "Ultimately, there is no evidence to support their theories." A jury trial is scheduled for July 28, 2014. The Plaintiffs are represented by: David Christopher Parisi, Esq. Suzanne L. Havens Beckman, Esq. PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone: (818) 990-1299 Facsimile: (818) 501-7852 E-mail: dcparisi@parisihavens.com shavens@parisihavens.com - and - David A. Stampley, Esq. Grace E. Tersigni, Esq. Scott A. Kamber, Esq. KAMBERLAW, LLC 100 Wall Street, 23rd Floor New York, NY 10005 Telephone: (212) 920-3072 Facsimile: (212) 920-3081 E-mail: dstampley@kamberlaw.com gtersigni@kamberlaw.com skamber@kamberlaw.com - and - Scott A. Kamber, Esq. David A. Stampley, Esq. KAMBERLAW, LLC 11 Broadway, 22nd Floor New York, NY 10004 Telephone: (212) 920-3072 Facsimile: (212) 920-3081 E-mail: skamber@kamberlaw.com dstampley@kamberlaw.com - and - Deborah Kravitz, Esq. KAMBERLAW LLP 141 North Street Healdsburg, CA 95448 Telephone: (202) 285-2560 E-mail: dkravitz@kamberlaw.com - and - Gretchen Arlene Carpenter, Esq. Brian Russell Strange, Esq. STRANGE & CARPENTER 12100 Wilshire Boulevard, Suite 1900 Los Angeles, CA 90025 Telephone: (310) 207-5055 Facsimile: (310) 826-3210 E-mail: gcarpenter@strangeandcarpenter.com lacounsel@earthlink.net - and - Joseph H. Malley, Esq. LAW OFFICE OF JOSEPH H. MALLEY, PC 1045 North Zang Boulevard Dallas, TX 75208 Telephone: (214) 943-6100 E-mail: malleylaw@gmail.com The Defendant is represented by: Randall W. Edwards, Esq. Katherine Robison, Esq. Matthew David Powers, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 E-mail: REdwards@omm.com krobison@omm.com mpowers@omm.com - and - Robert Michael Schwartz, Esq. Brian J. Finkelstein, Esq. Steven Matthew Dunst, Esq. Victor Jih, Esq. O'MELVENY MYERS LLP 1999 Ave of the Stars, Suite 700 Los Angeles, CA 90067-6035 Telephone: (310) 246-6835 E-mail: rschwartz@omm.com brianfinkelstein@omm.com sdunst@omm.com vjih@omm.com The case is In Re Hulu Privacy Litigation, Case No. 3:11-cv-03764- LB, in the U.S. District Court for the Northern District of California (San Francisco). IBT PLAN: "Virtue" Suit Claims Barred by Statute of Limitations --------------------------------------------------------------- Dan McCue, writing for Courthouse News Service, reports that a teamster who belongs to at least four union-affiliated pension plans waited too long to sue his way into a fifth, a federal judge ruled. U.S. District Judge James Boasberg noted November 4, 2013, that Daniel Virtue had been "something of a collector" when the International Brotherhood of Teamsters Retirement and Family Protection Plan rejected him in 2009. "Over the course of his employment with the International Brotherhood of Teamsters, with his local union, and as a rank-and- file Teamster, he has collected memberships in at least four Teamsters-affiliated pension plans. . . . Unfortunately for Virtue, his quest to assemble a complete portfolio of IBT pension plans ends here," the 13-page decision states. The plan, formerly called the IBT Retirement and Family Protection Plan, attributed its rejection of Virtue to its 2001 amendment of regulations that excluded part-time "stipend employees" hired after April 1, 1999. Prior to the change, IBT employees were eligible for benefits under the plan so long as they worked at least 1,000 hours over a 12-month period. Between October 2000 and January 2007, Virtue worked in a variety of part-time positions for the IBT in addition to local union duties. The former union local president claimed that he had already met the 1,000-hour requirement before the amendment went into effect. But the pension plan pointed to a notice it mailed Virtue and other union employees that informed them of their status as stipend employees and said they were only eligible to receive travel-accident insurance. The plan also noted that when Virtue was going through a divorce in 2006, his wife's attorney requested information regarding all the benefits to which he was entitled. Virtue did not object to his being classified as a part-time, stipend employee at that time, the plan said. Virtue nevertheless then sought benefits in 2009, and later filed an administrative appeal over them. In both cases, Virtue's pursuit of the benefits was denied. He sued the plan in April 2012, claiming that the plan had violated the Employee Retirement Income Security Act in 2001 by improperly eliminating his rights to benefits without adequate notice. The plan successfully fought off class certification and then moved for summary judgment. It said Virtue's claim was time-barred because it had clearly repudiated his right to plan benefits on two separate occasions: in the letters sent to stipend employees, informing them of the amended policy, and during his divorce proceedings. Boasberg agreed Monday, November 4, 2013, noting that, "at the very least, the notice Virtue received in April 2006 qualified as a clear repudiation, which would mean that the statute of limitations expired no later than April 2009." "The 2006 correspondence is crystal clear, and it certainly made the repudiation of any claim of benefits 'known to the plan beneficiary,'" Boasberg added. Virtue failed to show that the plan waived its statute-of- limitations defense by reconsidering his eligibility for benefits in 2009, according to the ruling "To begin with, courts in this circuit have been 'loath to hold that mere investigation' of a plaintiff's complaint or claim 'without more constitutes a binding waiver of any agency's right to raise the timeliness issue,'" Boasberg wrote. He added that it "would be a bridge too far" to say that the mere response to Virtue's appeals waived the statute-of-limitations defense. Virtue also failed to show that the plan failed to clearly and consistently repudiate his claim to benefits, the ruling states. "In light of the 2006 letter . . . the court must find that Virtue was or should have been aware of the plan's repudiation of his right to benefits no later than April 2006," Boasberg wrote. The Plaintiff is represented by: Joseph Semo, Esq. Kevin D. Stein, Esq. SEMO LAW GROUP 1800 M Street, NW, Suite 730 S Washington, DC 20036 Telephone: (202) 833-7366 Facsimile: (202) 478-0919 E-mail: joesemo@joesemo.com kstein@semolawgroup.com The Defendants are represented by: James Charles Bailey, Esq. Jason H. Ehrenberg, Esq. Jeffrey B. Cohen, Esq. BAILEY & EHRENBERG PLLC 1015 18th Street, NW, Suite 204 Washington, DC 20036 Telephone: (202) 331-1331 Facsimile: (202) 318-7071 E-mail: jcb@becounsel.com jhe@becounsel.com jbcohen@becounsel.com The case is Virtue v. International Brotherhood of Teamsters Retirement and Family Protection Plan, et al., Case No. 1:12-cv- 00516-JEB, in the U.S. District Court for the District of Columbia (Washington, DC). INDIANA: Settles Hoosier Class Action for $30 Million ----------------------------------------------------- Tim Evans, writing for Indianapolis Star, reports that the $30 million settlement in a class-action lawsuit against the Bureau of Motor Vehicles includes refunds of $3 to $15 for a majority of Hoosier motorists -- and a $6 million payday for the Indianapolis law firm that uncovered the agency's overcharges. The settlement, approved earlier this month by Marion Superior Court Judge Heather Welch, also includes three refund options for the estimated 4.5 million drivers who, from March 7, 2007, to June 27, were charged more than what state law allows when they obtained or renewed driver's licenses. Only drivers who were under the age of 75 when they obtained or renewed licenses during that time frame are eligible for the refunds. Drivers 75 and older at the time were not overcharged. Refunds will be provided in the form of credits on future transactions or checks, which can be requested through a link on the BMV website or by calling (800) 248-0084. Any remaining drivers who are due a refund, but have not collected it via a transaction or check request, will be sent a check when a final accounting is conducted in three years. "We will abide by the terms and conditions of the settlement," BMV spokesman Josh Gillespie said. The BMV said it erred in calculating license fees. Money to cover the refunds will come from funds the agency has on hand. The settlement resolved a lawsuit filed in March by Irwin B. Levin of the Indianapolis law firm Cohen & Malad on behalf of Tammy Raab. The suit was filed in Marion Superior Court after research by the law firm revealed the BMV was charging more than allowed under Indiana law when Hoosiers obtained or renewed driver's licenses. Judge Welch granted the case class-action status, naming Cohen & Malad as counsel for the class, and a settlement was negotiated this fall. The deal was finalized after a hearing Nov. 12. Mr. Levin said his firm's fee in the case was substantially lower than fees Cohen & Malad typically collects in class-action cases. The $6 million represents about 21 percent of the settlement, he said, while a fee of about 33 percent is closer to the norm. The firm's fee also takes nothing away from victims, who will be reimbursed 100 percent of the amount they were overcharged. "Of all the cases we've done," Mr. Levin said, "this is the smallest percentage" of a settlement the firm has received. And, Mr. Levin said, the law firm's work probably saved Hoosiers millions of dollars more. "This may be the most unique class-action case in Indiana," Mr. Levin said. "That's because these types of lawsuits are usually brought when it is apparent something is wrong. But in this case, the state was unaware of the problem until we brought it to their attention." If the overcharges had not been uncovered, Mr. Levin said, it is likely that Hoosiers would have continued to pay more than the law allowed for driver's licenses. He said one expert estimate submitted as part of the case indicated the overcharges could have run as high as an additional $10 million over the next year. The BMV admitted in June that it had been overcharging drivers and reduced license fees at that time. The lawsuit also prompted Gov. Mike Pence to order an independent review of other BMV charges. That examination revealed the agency had been overcharging for some additional services while undercharging for others, although the agency did not release a financial accounting for those errors. The BMV will reimburse those other overcharges, which were not subject to the class-action lawsuit settlement, only through discounts on future transactions. However, the agency will not make any effort to recoup fees lost through undercharges. Mr. Levin said the case has generated more than cash for the law firm. "We've received more 'thank-yous' from people on the street in this case than any other case I've done," he said. "People recognize somebody has to hold government accountable, and we are proud to have done that." INTEVATION FOOD: Recalls Chicken Fettuccine Alfredo Products ------------------------------------------------------------ Intevation Food Group, LLC, a Plover, Wis., establishment, is recalling approximately 156,924 pounds of frozen chicken fettuccine alfredo products because of misbranding and an undeclared allergen, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The products contain egg, a known allergen, which is not declared on the product label. The products subject to recall include: -- 18-oz. trays of "OMAHA STEAKS, 2367 Chicken Fettuccine Alfredo," bearing the establishment number "P-39949" inside the USDA mark of inspection. The products were packaged and produced on various dates from May 11, 2012, through October 8, 2013, and were shipped to distributors in Nebraska for further distribution through retail and internet/catalog sales. The products may also be identified by the case codes 9502367 or 9802367. The problem was discovered by the company during an internal label review. FSIS and the company have received no reports of adverse reactions due to consumption of these products. Anyone concerned about a reaction should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. When available, the retail distribution list(s) will be posted on the FSIS website at: http://www.fsis.usda.gov/wps/portal/fsis/topics/recalls-and- public-health-alerts/current-recalls-and-alerts. Consumers and media with questions about the recall should contact the Customer Care Hotline at (877) 789-7117. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10 a.m. to 4 p.m. ET. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. JC PENNEY: Fails to Pay Overtime Wages to Workers, Suit Says ------------------------------------------------------------ Courthouse News Service reports that J.C. Penney Co. and its distributor JCP Logistics stiff workers for overtime, a class action claims in Orange County Court. JOE'S CRAB SHACK: Class Cert. Denial in "Martinez" Suit Reversed ---------------------------------------------------------------- In MARTINEZ v. JOE'S CRAB SHACK HOLDINGS, the trial court, after wrestling with the factual issues raised by Defendants Crab Addison, Inc., Ignite Restaurant Group, Inc. and Landry's Restaurants, Inc., denied class certification to a putative class consisting of managerial employees allegedly misclassified as exempt on the grounds the plaintiffs had failed to establish (a) their claims are typical of the class, (b) they can adequately represent the class, or (c) common questions predominate the class claims such that a class action is the superior means of resolving the litigation. The Court of Appeals of California, Second District, Division Seven, however, reversed the ruling and remanded the case for reconsideration in light of its recent decision in Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701 (Benton). Among other things, Presiding Judge Perluss held that: * the class is adequately represented by plaintiffs, whose claims are typical of the class; * the trial court failed to assess means by which plaintiffs' theory of recovery could be proved through resolution of common questions of fact and law; and * the trial court must reconsider whether class certification provides a superior method of resolving plaintiffs' claim. Plaintiffs are to recover their costs on appeal, Judge Perluss added. The case is ROBERTO MARTINEZ et al., Plaintiffs and Appellants, v. JOE'S CRAB SHACK HOLDINGS et al., Defendants and Respondents, NO. B242807. A copy of the Appeals Court's November 12, 2013 Opinion is available at http://is.gd/uxpjfYfrom Leagle.com. Righetti Glugoski, Matthew Righetti and John Glugoski, for Plaintiffs and Appellants, Roberto Martinez, Lisa Saldana, Chanel Rankin-Stephens and Craig Eriksen. Epstein Becker & Green, Michael S. Kun -- mkun@ebglaw.com -- and Ted A. Gehring -- tgehring@ebglaw.com -- for Defendants and Respondents Crab Addison, Inc. and Ignite Restaurant Group, Inc. Counsel for Defendant and Respondent Landry's Restaurants, Inc., are Sheppard, Mullin, Richter & Hampton and Charles F. Barker -- cbarker@sheppardmullin.com -- and: Mary E. Lynch, Esq. Law Offices of Mary E. Lynch 18301 Von Karman, Suite 1060 Irvine, CA 92612 Tel: (949) 229-5529 Fax: (949) 231-5810 JOHNSON & JOHNSON: To Settle Hip Implant Suits for $2.5 Billion --------------------------------------------------------------- Matthew Perrone and John Seewer, writing for The Associated Press, report that Johnson & Johnson said late on Nov. 19 that it will pay $2.5 billion to settle thousands of lawsuits brought by hip replacement patients who accuse the company of selling faulty implants that led to injuries and additional surgeries. The agreement presented in U.S. District Court in Toledo, Ohio, is one of the largest for the medical device industry. It resolves an estimated 8,000 cases of patients who had to have the company's metal ball-and-socket hip implant removed or replaced. J&J pulled the implant from the market in 2010 after data showed it failed sooner than older implants. The deal provides roughly $250,000 per patient and covers those who had their implants removed or replaced before Aug. 31 this year. The company expects to make most of the payments to patients in 2014. J&J's DePuy unit said in a statement that the deal does not cover all lawsuits pending against the company. "DePuy will continue to defend against remaining claims and believes its actions related to the ASR Hip System have been appropriate and responsible," the company said. The artificial hip, known as the Articular Surface Replacement, or ASR, was sold for eight years to some 35,000 people in the U.S. and more than 90,000 people worldwide. J&J stopped making the product in 2009 and recalled it the next year. However, internal J&J documents unsealed in the case suggest that company officials were aware of problems with the device at least as far back as 2008. Also, according to a deposition from a J&J official, a 2011 company review of a patient registry concluded that more than one- third of the implants were expected to fail within five years of their implantation. Orthopedic hips are generally supposed to last at least 10 to 20 years. The company's lawyers have denied that J&J acted improperly. For decades nearly all orthopedic hips were coated with plastic or ceramic. But a decade ago many surgeons began to favor all-metal implants based on laboratory tests suggesting the devices would be more resistant to wear and reduce the chances of dislocation. But recent data from patient registries show the devices actually fail at a higher rate than older implants. Last year a panel of government advisers said there are few, if any, cases where metal- on-metal hip implants should be recommended. JPMORGAN CHASE: Admission of Wrongdoing to Help Class Plaintiffs ---------------------------------------------------------------- Michael Bobelian, writing for Forbes, reports that JPMorgan's $13 billion settlement with the Department of Justice and other government entities on Nov. 19 represented a significant achievement for the government. By amounting to two-thirds of the bank's profits in 2012, the record-breaking settlement far exceeded the smaller figures critics have denounced as the simple cost of doing business for companies that generate billions in annual profits. Government officials managed to extract something other than money, however. In an 11-page document associated with the settlement, JPMorgan acknowledged missteps and wrongdoing. The question is, outside of appeasing Wall Street's critics and providing a feel-good moment for government regulators and the public at large, will JPMorgan's admissions amount to anything meaningful? Ever since Judge Jed S. Rakoff admonished the Securities and Exchange Commission for entering into a settlement with Citigroup without extracting any admission of wrongdoing from the bank in 2011, the issue of culpability has taken on new importance in the government's enforcement actions against Wall Street. In a way, the issue caught the SEC off-guard. Prior to 2010, explained Lorin Reisner, Chief of the Criminal Division at the U.S. Attorney's Office in New York, at a recent securities regulation conference hosted by Columbia University Law School, many at the SEC saw an admission of wrongdoing as "alien" to the institution's approach to financial settlements. Claiming that it lacked the resources to take every case to trial and eager to shield its decision-making from the scrutiny of federal judges, the SEC defended what came to be known as the "neither admit or deny" policy at first. As other judges began to question the practice, however, the agency modified its stance. When Mary Jo White took over as the commission's chairwoman earlier this year, she vowed to extract more admissions of wrongdoing as part of her aggressive posture towards enforcement. Since then, the commission managed to extract such admissions in settlements with hedge fund titan Philip Falcone and JPMorgan over the bank's handling of the "London Whale" trading imbroglio in which it lost $6 billion last year. Though the Nov. 19 $13 billion settlement did not directly involve the SEC, the criticism aimed at the agency overshadowed the government's dealings with the bank. That's why Associate Attorney General Tony West emphasized JPMorgan's acknowledgements in announcing the deal. As part of the settlement, JPMorgan admitted to marketing and selling loans it knew did not conform to underwriting guidelines in the packages of mortgage-backed securities the bank sold to investors. The Statement of Facts listing JPMorgan's misdeeds made references to several instances in which mortgages were sold under these conditions. Part of the reason companies have resisted such acknowledgements in the past is because of the value they provide to adversaries in corresponding securities class action lawsuits. Such lawsuits, brought on behalf of injured shareholders, often make allegations that mirror the government's accusations against a company. In many instances, these lawsuits piggyback on the government's findings. This symbiotic relationship emerged when Congress made it more difficult for private parties to bring class actions through the Private Securities Litigation Reform Act. The 1995 law required plaintiffs to prove fraud early on in a lawsuit before they could gather evidence of wrongdoing from the defendant institutions. The legislative enactment led to many victories for corporate defendants or prevented plaintiffs from filing cases in the first place. In order to overcome these legal obstacles, plaintiffs often relied upon the wrongdoing uncovered by government investigators. Since admissions of wrongdoing in a parallel government case would make it easier for plaintiffs to overcome this procedural hurdle, corporations negotiating with the SEC refused to make such admissions in their settlements with the government. But even when corporations acknowledge their misdeeds, such admissions don't always provide a full-proof weapon for class action plaintiffs. One key is for admissions to cover the specific allegations made by the private plaintiffs. A general admission of wrongdoing or acknowledgements in similar but ultimately unrelated set of facts will not help JPMorgan's legal adversaries. According to Max Berger, a leading class action lawyer who spoke alongside Ms. Reisner at the Columbia Law School conference, such incongruity took place in the Falcone case. The admissions made by Mr. Falcone didn't help private plaintiffs because the cases relied on disparate facts. In other instances, however, such admissions are helpful. It's unclear what impact JPMorgan's admissions will have on corresponding class action claims. They might force JPMorgan to dole out billions of additional dollars to aggrieved plaintiffs or they might fizzle away as part of an ephemeral feel-good moment for government officials and Wall Street critics. KAISER PERMANENTE: Performed HIV Tests Without Consent, Suit Says ----------------------------------------------------------------- Philip A. Janquart, writing for Courthouse News Service, reports that Kaiser intentionally performed HIV tests on thousands of health plan members without their consent, alleges a class action complaint filed in Clark County Superior Court. Lead plaintiff Mary E. Benton claims Kaiser instituted a new protocol in April 2013 that required members between 50 and 65 to receive Human Immunodeficiency Virus (HIV) screening as part of their routine care. The tests were conducted on 6,500 members, including Benton, without notification or consent between April 11 and May 5, according to the complaint. Benton says the members had no idea they were being tested for the virus and, therefore, were never presented with the opportunity to "opt out" of testing. They were also never provided information about what an HIV test is and the potential risks associated with it. Benton said she didn't know what had happened until May 13, when she received a letter dated April 26, explaining she had been tested. Benton's "autonomy, privacy and confidentiality were violated by defendants and she has experienced a loss of trust in Kaiser defendants as a result of this unauthorized and unconsented HIV testing," according to the complaint. R. Travis Jameson, attorney for the plaintiff, told Courthouse News that discovery has yet to be conducted and that he could only speculate on why Kaiser implemented its policy, but that letters issued to his clients indicate the policy was introduced in conjunction with the U.S. Preventative Services Task Force (PSTF). According to its Web site, the PSTF is an independent panel of non-federal experts in prevention and evidence-based medicine comprised of a collection of physicians, nurses and health behavior specialists. The group, in part, makes "recommendations that are relevant to implementing the Affordable Care Act," or Obamacare. "The task force's claim is that through the [Centers for Disease Control], they want to identify people who may be HIV positive, but are unaware. We have concerns about that because I was contacted today about another client who was tested without consent, and this is after an oversight period with Kaiser took place. My clients include the wife of a Senator to an individual that counsels high-risk individuals, a local nurse to a real estate professional, so a wide cross-section of the community is being tested," Jameson told Courthouse News. He added that not only does the unauthorized testing create a feeling of resentment against Kaiser, but disregards patients' rights. "The state takes very seriously the fundamental rights of patients, their right to autonomy. It's another situation where someone thinks they know better what is good for you, than you do. The sense is, you haven't been violated if you don't know you have been violated," Jameson said. Plaintiffs are suing for violation of state law and seek a determination that defendants are financially responsible for notifying all class members of its unlawful conduct. The Plaintiff is represented by: Paul Stritmatter, Esq. Brad Moore, Esq. R. Travis Jameson, Esq. STRITMATTER KESSLER WHELAN COLUCCIO 200 Second Avenue West Seattle, WA 98119 Telephone: (206) 448-1777 Facsimile: (206) 728-2131 E-mail: pauls@stritmatter.com brad@stritmatter.com The case is Benton, Mary E. v. Kaiser Foundation Health Plan Inc., et al., Case No. 13-2-03746-1, in the Washington Superior Court for Clark County. LAWRENCEBURG NH: Altered Records of Class' Work-Hours, Suit Says ---------------------------------------------------------------- Rebecca Ann Lynch, Larry D. Schultz, and Britany Lanier, on behalf of THEMSELVES and All Others Similarly Situated v. Lawrenceburg NH Operations, LLC d/b/a Countryside Healthcare and Rehabilitation, Case No. 1:13-cv-00129 (M.D. Tenn., October 16, 2013) alleges that Countryside has routinely altered its hourly-paid employees' time clock punch records to avoid paying its hourly-paid employees for all time worked. Lawrenceburg NH Operations, LLC d/b/a Countryside Healthcare and Rehabilitation is a Tennessee corporation with its principal office in Chesnee, South Carolina. Countryside operates a facility located in Lawrenceburg, Tennessee, where its employees care for individuals in need of daily healthcare assistance, most of whom are elderly. This complaint only concerns employees at this Lawrenceburg facility. The Plaintiffs are represented by: Jerry E. Martin, Esq. David W. Garrison, Esq. Scott P. Tift, Esq. Seth M. Hyatt, Esq. BARRETT JOHNSTON LLC 217 Second Avenue North Nashville, TN 37201 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: jmartin@barrettjohnston.com dgarrison@barrettjohnston.com stift@barrettjohnston.com shyatt@barrettjohnston.com - and - Peter Winebrake, Esq. R. Andrew Santillo, Esq. WINEBRAKE &SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 E-mail: pwinebrake@winebrakelaw.com asantillo@winebrakelaw.com The Defendant is represented by: Charles J. Mataya, Esq. Matthew C. Lonergan, Esq. John P. Rodgers, Esq. BRADLEY ARANT BOULT CUMMINGS LLP (NASHVILLE) 1600 Division Street, Suite 700 Nashville, TN 37203-0025 Telephone: (615) 244-2582 E-mail: cmataya@babc.com mlonergan@babc.com jrodgers@babc.com MAIDENFORM BRANDS: Makes Absurd Claims for Underwear, Suit Says --------------------------------------------------------------- Maidenform makes absurd claims for its underwear, including that its "embedded microcapsules containing caffeine . . . promote fat destruction," a class action claims in Federal Court. Lead plaintiff Christina Caramore sued Maidenform Brands and Wacoal America, for their "shapewear," underwear they sell "for women who want a flawless, bulge-free silhouette," according to the lawsuit. Caramore says the defendants claim "the fabric is constructed with minerals and nutrients that are absorbed by the skin and can permanently change women's body shape and skin tone. For example, defendant Wacoal claims that that the shapewear fabric . . . is constructed 'with embedded microcapsules containing caffeine to promote fat destruction; vitamin E to prevent the effects of aging; ceramides to restore and maintain the skin's smoothness; and retinol and aloe vera to moisturize and increase the firmness of the skin.'" The lawsuit continues: "The Federal Trade Commission calls such claims 'about as credible as a note from the Tooth Fairy.'" The "shapewear fabric" is made by the Spanish company Nurel, according to the lawsuit, which does not name Nurel as a defendant. "Shapewear" accounts for about $1 billion of the U.S. weight-loss industry's annual $20 billion revenue, according to the complaint. It claims that Maidenform and Wacola "prey upon women's insecurities about their body images" and that "sales of 'nutrient-infused' textiles or 'cosmeto-textiles' are estimated at more than $600 million annually." The defendants charge as much as 50 percent more for their snake- oil fabrics, the class claims, "despite the fact that the purported nutrients cannot permanently cure cellulite, destroy fat, or cause weight loss. As a result of defendants' misrepresentations, plaintiffs and the class have suffered out-of- pocket losses, did not receive the benefit of the bargain, and have been damaged." The plaintiffs seek class certification, restitution, and statutory, treble damages and punitive damages for consumer fraud, breach of warranty and unjust enrichment. The Plaintiffs are represented by: Andres F. Alonso, Esq. ALONSO KRANGLE LLP 445 Broad Hollow Rd., Suite 205 Melville, NY 11747 Telephone: (516) 350-5555 Facsimile: (516) 350-5554 E-mail: AAlonso@alonsokrangle.com - and - Elizabeth A. Fegan, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1144 W Lake St., Suite 400 Oak Park, IL 60301 Telephone: (708) 628-4949 Facsimile: (708) 628-4950 E-mail: beth@hbsslaw.com - and - Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com The case is Caramore, et al. v. Maidenform Brands, Inc., et al., Case No. 2:13-cv-06122-LDW-GRB, in the U.S. District Court for the Eastern District of New York (Central Islip). MAPLE LEAF: Recalls Certain Mr. Sub Spicy Chicken Bites ------------------------------------------------------- Starting date: November 19, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Microbiological - Other, Microbiological - Salmonella Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Maple Leaf Consumer Foods Distribution: Alberta, British Columbia, Manitoba, Ontario, Quebec, Saskatchewan, Newfoundland and Labrador Extent of the product distribution: Hotel/Restaurant/Institutional CFIA reference number: 8449 Affected products: 10 kg. Mr. Sub Spicy Chicken Bites - Fully Cooked, Breaded Seasoned Chicken Breast Pieces with product codes indicating 2013-08-21, 2013-08-22, 2013-08-23, 2013-09-04, 2013- 09-20 MARYLAND: Class Certification Bid in "Cofield" Suit Denied ---------------------------------------------------------- On October 17, 2013, the court received for filing a petition filed under the All Writs Act, 28 U.S.C. Section 1651, from a petitioner, who is currently confined at the Eastern Correctional Institution. The Petitioner seeks to bring the action captioned KEENAN K. COFIELD, #405938 v. MARYLAND PAROLE COMMISSION MARYLAND DOC SECRETARY GARY D. MAYNARD DAVID R. BLUMBURG, CHAIRMAN, MARYLAND PAROLE COMM. JOHN DOE JANEDOE, CIVIL ACTION NO. CCB-13- 3105, (D. Md.), on behalf of himself and all other inmates in like circumstances. In his complaint, the Petitioner claims inmates receive notifications from the Maryland Parole Commission that contain "false, incorrect, misleading and inaccurate information" regarding their eligibility for a parole hearing. It appears that the petitioner was served with notice that he was eligible for a parole hearing in April of 2013, but when he went before the Commission that April, the hearing officer said that he could not recommend parole because petitioner had not yet served the minimum one-quarter of his ten-year sentence. Petitioner claims the hearing officer recommended a rehearing (parole setoff) for April of 2014, which the Commission adopted. The Petitioner alleges the Commission engages in "arbitrary and capricious [behavior] when they, in violation of its own guidelines, policy, regulations, statutes and laws" give inmates notice that they are eligible for a parole hearing and then deny them parole because they do not meet the minimum guidelines for scheduling a hearing. The Petitioner seeks to enjoin the Commission from holding hearings before an inmate's presumptive parole hearing eligibility date, declare his parole hearing decision invalid and violative of his liberty interests, and void the parole rehearing determination. District Judge Catherine C. Blake ruled that the Petitioner's motion for leave to proceed in forma pauperis, will be granted. However, his petition will be dismissed without requiring service on respondents. Judge Blake further ruled that class certification will be denied because self-represented litigants are not favored as representative parties in a class action, and they generally cannot represent and protect the interests of the class fairly and adequately. A copy of the District Court's November 8, 2013 Memorandum is available at http://is.gd/KK2uOufrom Leagle.com. MENZIES AVIATION: Class Cert. Bid Ruling in "Wright" Suit Affirmed ------------------------------------------------------------------ In SARA WRIGHT, Plaintiff and Appellant, v. MENZIES AVIATION, INC. et al., Defendants and Respondents, NO. B244332, Appellant Sara Wright appeals from the trial court's denial of her motion seeking certification of certain classes in her action against Respondents Menzies Aviation Inc., Menzies Aviation Group (USA), Inc., and Aeroground, Inc., her former employer. The Appellant moved to certify four distinct classes encompassing current and former nonexempt (hourly) employees of Menzies whom she contended suffered various employment-related injuries. The Appellant contends the trial court abused its discretion in denying certification of three of the four proposed classes. The Court of Appeals of California, Second District, Division Four affirmed the trial court's order partially denying appellant's motion for class certification, saying the trial court reasonably concluded that "common question do not predominate," and any injuries suffered by potential class members would require adjudication on an individualized basis. Menzies is awarded its costs on appeal. A copy of the Appeals Court's November 12, 2013 Opinion is available at http://is.gd/zaKkodfrom Leagle.com. GrahamHollis, Graham S.P. Hollis and Vilmarie Cordero for Plaintiff and Appellant. Foley & Lardner, John G. Yslas -- jyslas@foley.com -- and Christopher G. Ward -- cward@foley.com -- for Defendants and Respondents. NATIONAL COLLEGIATE: Court Certifies Class in Antitrust Suit ------------------------------------------------------------ District Judge Claudia Wilken granted in part and denied in part a motion for class certification in IN RE NCAA STUDENT-ATHLETE NAME & LIKENESS LICENSING LITIGATION, NO. C 09-1967 CW, (N.D. Cal.). The Plaintiffs are current and former college athletes seeking to pursue their antitrust claims against National Collegiate Athletic Association (NCAA). Judge Wilken certified this class under Rule 23(b)(2) of the Fed. R. Civ. P.: All current and former student-athletes residing in the United States who compete on, or competed on, an NCAA Division I (formerly known as "University Division" before 1973) college or university men's basketball team or on an NCAA Football Bowl Subdivision (formerly known as Division I-A until 2006) men's football team and whose images, likenesses and/or names may be, or have been, included in game footage or in videogames licensed or sold by Defendants, their co-conspirators, or their licensees after the conclusion of the athlete's participation in intercollegiate athletics. The Court further authorized Antitrust Plaintiffs' attorneys as class counsel. Judge Wilken denied the NCAA's motion for leave to file a supplemental memorandum regarding new evidence saying the NCAA has not explained why it was unable to obtain and present this evidence during the extensive briefing on class certification. In addition, notes the Court, the NCAA's request to present this evidence is moot because the evidence pertains to the calculation and allocation of damages, which is no longer relevant in light of the Court's denial of class certification under Rule 23(b)(3). Judge Wilken directed the Plaintiffs to submit any dispositive motions, including any Daubert motions, in a single twenty-five page brief. The NCAA must file its opposition and any cross- motions in a single twenty-five page brief, including any evidentiary objections it intends to raise, on or before December 5, 2013. Plaintiffs must file their reply and opposition in a single fifteen-page brief on or before January 6, 2013. The NCAA must also file its reply in a single fifteen-page brief on or before February 3, 2013. The Court will hear all dispositive motions, including all evidentiary objections, and hold a case management conference at 2:00 p.m. on February 20, 2013. A copy of the District Court's November 8, 2013 Order is available at http://is.gd/1KPWEQfrom Leagle.com. NEW CENTURY MORTGAGE: Faces "Langcay" Suit Over Hawaii Property --------------------------------------------------------------- Annabelle Langcay, an individual, on behalf of herself and all others similarly situated v. New Century Mortgage Corporation, as Original Lender; U.S. Bank, National Association, as Trustee for The Issuing Trust; HSBC Home Equity Loan Trust (USA) 2006-4; America's Servicing Company, as the Mortgage Servicer and all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiff's title, or any cloud on Plaintiff's title thereto and, Does 1 through 100, inclusive, Case No. 1:13-cv-00537-JMS-BMK (D. Haw., October 16, 2013) is brought for declaratory judgment, injunctive and equitable relief and for compensatory, special, general and punitive damages relating to the Plaintiff's property in Aiea, Hawaii. The Plaintiff disputes the title and ownership of the real property in question, which is her home, in that the originating mortgage lender and others alleged to have ownership, have unlawfully sold, assigned or transferred their ownership and security interest in a promissory note and mortgage related to the Property and, thus, do not have lawful ownership or a security interest in the Plaintiff's Home. The Plaintiff is represented by: Roger Y. Dewa, Esq. THE LAW OFFICES OF ROGER Y. DEWA 1164 Bishop Street, Suite 1409 Honolulu, HI 96813 Telephone: (510) 301-6101 E-mail: rogerdewaattorneyatlaw@gmail.com NEW ENGLAND COMPOUNDING: Meningitis Outbreak Probe Ongoing ---------------------------------------------------------- The Associated Press reports that Dirk Thompson III doesn't hold out much hope that he and the 750 other victims in a nationwide meningitis outbreak will ever see much, if any, compensation for the deaths and illnesses caused by tainted steroids. He hopes to find justice another way if criminal charges are brought against the principals of a Massachusetts compounding pharmacy that made the steroid injections blamed for the fungal meningitis outbreak. A federal grand jury in Boston has been investigating the New England Compounding Center for more than a year. A separate grand jury in Minnesota also has been conducting an investigation. "They have to be prosecuted to the fullest extent of the law," said Mr. Thompson, 58, of Howell, Mich., who was hospitalized for 38 days with meningitis after receiving a steroid injection for back pain. "They were totally irresponsible." Since the contaminated steroids were first discovered, 751 people in 20 states have developed fungal meningitis or other infections, including 64 who died. Michigan, Tennessee and Indiana were the hardest-hit states. Federal prosecutors have declined to comment on the investigation, but the FBI recently asked anyone who received one of the tainted injections to fill out a questionnaire detailing their illnesses and saying whether they believe another medication distributed by NECC caused harm to them or their family. Michigan Attorney General Bill Schuette said in a statement on Nov. 24 that he and Boston U.S. Attorney Carmen Ortiz was set to hold a news conference on Nov. 25 to discuss a development in the independent state and federal investigations into NECC. The FBI, which has also sent agents to visit victims, set a Nov. 30 deadline for victims to submit the surveys online or to mail them to its health care fraud squad in Boston. It is unclear whether the company or its executives will face criminal charges. Several lawyers who represent victims in lawsuits say health care companies charged with selling contaminated drugs often reach settlements with the federal government and agree to pay large fines. But the New England Compounding case is different because of the large number of deaths and serious illnesses caused by the tainted steroids. "If there's enough evidence to show that these companies were operating and that the executives were operating in a way that was going to harm and hurt and eventually cause death, then we would presume that there would be some action, other than just a fine," said Boston attorney Kim Dougherty, whose firm represents more than 100 people who became ill or died in the outbreak. Inspectors found a host of potential contaminants at the company's Framingham plant, including standing water, mold, water droplets and dirty equipment. Fungus was found in more than 50 vials from the pharmacy. Regulators have also said the company did not perform enough tests before sending the drugs to hospitals and clinics and sent drugs in bulk quantities instead of prescriptions for individual patients. The company gave up its license and filed for bankruptcy protection after it was flooded with hundreds of lawsuits from victims. A bankruptcy court judge has set a Jan. 15 deadline for victims to file claims. "I hope that the people involved are held accountable and that they are prosecuted to the full extent of the law," said George Cary, whose wife, Lilian, 67, developed fungal meningitis and died about a month later. Mr. Cary, of Howell, Mich., received steroid shots at the same pain management clinic as his wife. He became ill with meningitis several weeks later and was hospitalized for three months. "I think the victims all feel . . . that none of the laws or regulations seem to have applied to (the people involved), and they've continued on with their lives while the victims have suffered immensely, deaths have occurred, people's whole families have been dramatically changed," Mr. Cary said. "This has really been a national disaster." Attorneys for the company's principals, through a spokesman, declined to comment. Christina DiIorio-Sterling, a spokesman for U.S. Attorney Carmen Ortiz, would say only that the investigation is continuing. NEWFOUNDLAND, CANADA: Premier No Comment on Moose Class Action Yet ------------------------------------------------------------------ VOCM.COM reports that the Premier says it's too early to comment after she was subpoenaed for a moose-class action case. Ches Crosbie, the lawyer fighting the case for hundreds of victims of moose accidents, wants Kathy Dunderdale to explain to the court how the decisions around government's moose reduction strategy were made. Ms. Dunderdale says there's not much she can say about the class action, having just been served the papers on Nov. 21. Ms. Dunderdale says the department of justice is reviewing the documents. She says there's no doubting the tragic accidents involving moose on our highways, but to have a cull is unreasonable. Ms. Dunderdale says the job of government is to find a balance, and that's what it's doing. PRETIUM RESOURCES: Pomerantz Grossman Files Class Action in N.Y. ---------------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Nov. 22 disclosed that it has filed a class action lawsuit against Pretium Resources, Inc. and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 13-cv-7556, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of Pretium between November 20, 2012 and October 21, 2013 both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Pretium securities during the Class Period, you have until December 26, 2013 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Pretium is an exploration and development company that was formed for the acquisition, exploration and development of precious metal resource properties in the Americas. The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements, regarding the Company's mineral reserves and compliance with applicable reporting and feasibility study requirements. Specifically, Defendants: 1) vastly inflated the value of reserves contained in the Brucejack Project, especially the gold reserves in the VOK Zone; 2) failed to disclose that its sampling methods were not in conformance with industry standards; and 3) failed to disclose the Company was not in compliance with NI 43-101. As a result of the foregoing, the Company's statements were materially false and misleading at all relevant times. On October 9, 2013, the Company disclosed that Strathcona, its Independent Qualified Person hired by the Company to evaluate the mineral reserves in the Brucejack Project, had abruptly resigned from the engagement. On this news, Pretium shares declined $2.07 per share or over 30%, to close at $4.70 per share on October 9, 2013. Then, on October 22, 2013, the Company provided further information regarding Strathcona's sudden resignation, reporting that it had resigned after a dispute with the company over sampling methods, particularly after advising the Company that, "there are no valid gold mineral resources for the VOK Zone, and without mineral resources there can be no mineral reserves, and without mineral reserves there can be no basis for a Feasibility Study." Strathcona further concluded that "statements included in all recent press releases [by Pretium] about probable mineral reserves and future gold production [from the Valley of the Kings zone] over a 22-year mine life are erroneous and misleading." On this news, Pretium shares declined $1.27 per share or over 27%, to close at $3.36 per share on October 22, 2013. With offices in New York, Chicago, Florida, and San Diego, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. SAN JOSE, CA: Obtains Partial Summary Judgment in "Valdez" Suit --------------------------------------------------------------- Magistrate Judge Kandis A. Westmore issued an order granting in part and denying in part a motion for summary judgment filed by defendants in the case captioned FRANCISCO VALDEZ, et al., Plaintiffs, v. CITY OF SAN JOSE, et al., Defendants, CASE NO. 4:09-CV-0176 KAW, (N.D. Cal.). Francisco Valdez, Ricardo Vasquez, Daniel Martinez, and Jamil Stubbs commenced this putative class action against the City of San Jose, San Jose Police Chief Robert Davis, and San Jose Police Department Officers Agamau, Martin, Rickert, Wallace, and Orlando. Plaintiffs assert various federal constitutional claims and related state law causes of action. Defendants moved for summary judgment on the related state law claims. Plaintiffs oppose the motion. The court granted Defendants' motion for summary judgment as to the following claims: (1) The tenth cause of action for battery in its entirety. (2) The eleventh cause of action for a violation of Section 51.7 in its entirety. (3) The twelfth cause of action for violations of Section 52.1 in its entirety. (4) The fifteenth cause of action for negligence against the City and Chief Davis. Summary judgment is denied as to the following claims: (1) The eighth cause of action for false arrest, asserted by Plaintiffs Vasquez, Martinez, and Stubbs, against the individual officers. (2) The ninth cause of action for false imprisonment, asserted by Plaintiffs Vasquez, Martinez, and Stubbs, against the individual officers. (3) The fifteenth cause of action for negligence, asserted by Plaintiffs Vasquez, Martinez, and Stubbs, against the individual officers. A copy of the District Court's November 8, 2013 Order is available at http://is.gd/s514avfrom Leagle.com. SC STATE PLASTERING: Sun City Stucco Class Action Faces Delay ------------------------------------------------------------- Rebecca Lurye, writing for The Island Packet, reports that in a case that has languished for about six years, nearly 4,300 Sun City Hilton Head residents still await the start of their class- action lawsuit alleging stucco damage. Ongoing legal maneuvering prevents the case from advancing and keeps residents from meeting with lawyers who initiated the class- action, according to Michael Seekings, one of the plaintiffs' attorneys. Stucco applicator S.C. State Plastering Co., which is being sued, has fought to prohibit the team of four lawyers representing the residents from speaking with their clients. A judge dismissed the company's request to block such communication in June 2012, but that decision was appealed. A ruling is pending before the S.C. Court of Appeals, where both sides argued their cases Nov. 6. Mr. Seekings said the case also is being delayed by action taken in November 2012, when the plastering company and third-party defendant Del Webb Communities, the developer of Sun City, argued to the S.C. Supreme Court that a judge was wrong to approve the class-action status and allow a notice announcing the class-action to be sent to residents. In 2012, Judge J. Michael Baxley agreed to classify the lawsuit of Sun City couple Anthony and Barbara Grazia as a class-action case after about 140 residents also sued the defendants individually. Some of those cases have since been resolved. Hoping to reach a resolution quickly for the rest of the defendants, the residents' attorneys asked the state Supreme Court's chief justice on July 23 to allow the notice to be sent. The plastering company's appeal "serves only one purpose, delay," the motion states. About four months later, though, there has been no ruling on the motion. Chief Justice Jean Toal has recused herself from the case. Her clerk said Toal has a connection to the case but declined to explain further. Now, the entire court -- minus the chief justice -- must rule on the motion. It's not clear when that will happen, but a ruling in the plaintiffs' favor would mean residents could receive notices of the class-action suit within 30 days, Mr. Seekings said. Each homeowner would then have at least two months to opt out of the lawsuit. When that period ends, there would be an opportunity for the plastering company and three third-party defendants -- Del Webb, Pulte Homes and Kephart Architects -- to inspect each home's damage. While the degree of stucco deterioration varies from house to house, Mr. Seekings said, the delays are exacerbating the damage. "Each day that goes by, they're just getting worse," he said. Very few people have paid for repairs in the hopes of receiving compensation later on, according to Mr. Seekings. However, Pulte Homes carried out patch jobs for a handful of residents and allegedly asked those homeowners not to sue, he said. "We think that's inappropriate," Mr. Seekings said. It's not yet clear whether Pulte's repairs would disqualify residents from participating in the class-action, he said. Attempts this week to reach the defendants' attorneys and the Grazias for comment were unsuccessful. "We are trying desperately to get them to rule," Mr. Seekings said of the courts. "Then the game will be back on." SOUTHWESTERN & PACIFIC: Claim of Unconscionability Dismissed ------------------------------------------------------------ Megan Gallegos at Courthouse News Service reports that Southwestern & Pacific Specialty Finance dba Check 'n Go need not face claims that it made unconscionable consumer loans, a federal judge ruled. Bill Graves and Minerva Lopez had filed suit earlier this year against the company, which operates a group of loan stores that offer payday and installment loans. The putative class action alleged that Check 'n Go's loan agreements carry unreasonable terms in violation of California's Financial Code and Business and Professions Code. Graves had entered into a $5,000 installment loan agreement with the company this past January. It allegedly gave Graves nearly a full year to repay principal and interest in 26 installment payments. In addition to an annual percentage rate of 217.02 percent, the loan carried finance charges of $8,057.09, according to the complaint. Graves said portions of the online loan application he filled out through the company's Web site appeared as "pop-ups" on his computer monitor, and that he was required to click on boxes to signify that he had "signed" the agreement. Lopez said she entered into her loan agreement with Check 'n Go in December 2012. The loan of $2,600 allegedly required Lopez to repay principal and interest in 10 installment payments from January 20, 2013, to Oct. 20, 2014. It included an APR of 198.17 percent and finance charges of $2,856.82, according to the complaint. Lopez applied for her loan at one of Check 'n Go's stores. Among allegedly unconscionable terms in the agreements, Graves and Lopez pointed to the amount of the finance charges and the APR. Graves claims to have paid at least $502 toward the amount owed, and Lopez allegedly paid at least $545. Check N' Go moved to dismiss those claims and to strike the class action allegations. Armstrong found Monday, November 4, 2013, that "the granting of a motion to dismiss or strike class allegations before discovery has commenced should be done rarely." "While defendant's arguments may ultimately prove to be persuasive, the court finds that defendant's motion to strike is premature given that defendant has not filed an answer to the complaint, discovery has not yet commenced, and no motion for class certification has been filed," the ruling states. "In the absence of discovery and the presentation of specific arguments from both parties concerning class certification, the court lacks sufficient information to rule on the propriety of the class allegations," Armstrong added. She did, however, dismiss the claim alleging violations of California's Financial Code and Business and Professions Code because "courts considering this issue have concluded that there is no private right of action to enforce a violation." The Plaintiffs are represented by: Jeffrey Neil Wilens, Esq. LAKESHORE LAW CENTER 18340 Yorba Linda Blvd., Suite 107-610 Yorba Linda, CA 92886 Telephone: (714) 854-7205 Facsimile: (714) 854-7206 E-mail: jeff@lakeshorelaw.org - and - Jeffrey P. Spencer, Esq. THE SPENCER LAW FIRM 903 Calle Amanecer, Suite 220 San Clemente, CA 92673 Telephone: (949) 240-8595 Facsimile: (949) 240-8515 E-mail: jps@spencerlaw.net The Defendant is represented by: Mark C. Dosker, Esq. Carrie Elizabeth Jantsch, Esq. SQUIRE SANDERS (US) LLP 275 Battery Street, Suite 2600 San Francisco, CA 94111 Telephone: (415) 954-0200 Facsimile: (415) 393-9887 E-mail: mark.dosker@squiresanders.com carrie.jantsch@squiresanders.com - and - Adrienne R. Salerno, Esq. SQUIRE SANDERS US LLP 555 S. Flower Street, 31st Floor Los Angeles, CA 90071 Telephone: (213) 624-2500 Facsimile: (213) 623-4581 E-mail: adrienne.salerno@squiresanders.com - and - Amy Lynn Brown, Esq. SQUIRE SANDERS (US) LLP 1200 19th Street, NW, Suite 300 Washington, DC 20036 Telephone: (202) 626-6600 E-mail: amy.brown@squiresanders.com The case is Graves, et al. v. Southwestern & Pacific Specialty Finance, Inc., Case No. 4:13-cv-01159-SBA, in the U.S. District Court for the Northern District of California (Oakland). STARBUCKS CORP: Obtains Favorable Ruling in Tip Pool Class Action ----------------------------------------------------------------- Benjamin Horney and Beth Winegarner, writing for Law360, report that the Second Circuit on Nov. 21 sided with Starbucks in a class action brought by employees who claimed shift supervisors should not be allowed to dip into baristas' tip pool, saying that despite their title, supervisors mostly perform similar duties to that of baristas. The ruling -- which affirmed a 2011 summary judgment in favor of Starbucks by the United States District Court for the Southern District of New York but was contrary to a decision made by the First Circuit last year -- adds yet another chapter to a five- year-old case already filled with summary judgments, appeals and cross appeals. In its Nov. 21 decision, the Second Circuit concluded that the supervisors' duties are mostly similar to that of the baristas, and that they do not hold enough authority for the tip-sharing to be considered unlawful. "The decision was unfortunate," class attorney Shannon Liss-Riordan told Law360 on Nov. 21. "This is a big issue in the fast-food industry today. Fast-food workers are trying to stand up for their rights." Mr. Liss-Riordan represented workers in an identical case against Starbucks last year in Massachusetts, in which the First Circuit ruled in favor of baristas, forcing the coffee company to cough up $14.1 million in damages. As part of the fallout from that case, Liss-Riordan said, Starbucks raised the hourly wage of its supervisors by $3, leaving all of the tips to the baristas. "Their decision benefited all workers," she said. "The point is not to pit low-wage workers against other low-wage workers. The point is to wage the lowest waged workers against the corporation." Representatives for Starbucks were not immediately available for comment on Nov. 21. In New York, the class had argued that Section 196-d of New York Labor Law, which states that "no employer or his agent or an officer or agent of any corporation shall demand or accept . . . any part of the gratuities received by an employee," proves that the supervisors, who hold a position of authority, should not be allowed to participate in an employer-mandated tip allocation arrangement. "In this case, it is undisputed that Starbucks's shift supervisors spend a majority of their time performing the same duties as baristas, and are primarily responsible for serving food and beverages to the customers," the court's order said. "We identify no genuine dispute of material fact as to whether [New York Labor Law, Section 196-d] permits shift supervisors to participate in Starbucks's tip pools. It does." The court said that while supervisors can assign baristas to particular positions during their shift in or schedule breaks, they have no input into the creation of the actual work schedule. In addition, the court said that while supervisors can provide feedback to baristas, they cannot formally discipline them. "Although they supervise baristas, shift supervisors' primary job functions are the same as baristas," the order said. The class is represented by Shannon Liss-Riordan of Lichten & Liss-Riordan PC and Daniel Maimon Kirschenbaum of Joseph Herzfeld Hester & Kirschenbaum LLP. Starbucks is represented by Daniel L. Nash -- dnash@akingump.com -- Nathan J. Oleson -- noleson@akingump.com -- Kelly M. Scindian -- kscindian@akingump.com -- Samidh Guha -- sguha@akingump.com -- Rex S. Heinke -- rheinke@akingump.com -- Gregory W. Knopp -- rheinke@akingump.com -- and Katharine J. Galston -- kgalston@akingump.com -- of Akin Gump Strauss Hauer & Feld LLP. The case is Jeana Barenboim and Jose Ortiz, et al v. Starbucks Corp., case number 10-cv-4912 in the The U.S. Court of Appeals for the Second Circuit. STATE FARM: Loses Judgment Bid in "Baker" Breach of Contract Suit ----------------------------------------------------------------- Chief District Judge Fernando J. Gaitan, Jr., denied a motion for judgment on the pleadings and, denied as moot, a motion for a protective order and stay of deposition filed by the defendant in the case captioned TARA BAKER, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, NO. 2:13-CV-4123-FJG, (W.D. Mo.). Tara Baker and her husband are insured by State Farm under policy #070-1996-E10-25C. This policy provides coverage for medical expenses sustained when an insured is injured in an automobile accident. This coverage is referred to as "MPC" -- Medical Payments Coverage. On May 10, 2013, the Bakers filed their two count Complaint asserting in Count I, a class action claim for Breach of Contract and in Count II, an individual vexatious refusal to pay claim. State Farm filed its Motion for Judgment on the Pleadings arguing that under the terms of the policy, it may invoke the nonduplication clause even without a prior judicial determination of fault. State Farm also argued that the failure to pay Mrs. Baker's medical costs cannot be vexatious where no prior case law discusses the nonduplication provision. State Farm also filed a Motion for a Protective Order and Stay of Deposition. A copy of the District Court's November 8, 2013 Order is available at http://is.gd/sGnWeKfrom Leagle.com. STURM FOODS: Escapes Class Action Over Instant Coffee Packaging --------------------------------------------------------------- Gavin Broady and David McAfee, writing for Law360, report that single-serving coffee maker Sturm Foods Inc. escaped a putative class action, in which it was accused of misleading consumers that its instant coffee cartridges brewed fresh coffee, after an Illinois judge found on Nov. 20 that the plaintiffs had not shown they were misled by the product's packaging. U.S. District Court Judge G. Patrick Murphy dismissed the multistate proposed class action after siding with Sturm's analysis of each plaintiff's purchasing decisions and finding that no plaintiff had shown they were deceived or injured by the packaging of the company's Grove Square Coffee products. In doing so, he rejected arguments that Sturm's attorneys were "cherry-picking" lines from the plaintiffs' statements and that the inquiry should instead focus on whether the packaging is deceptive from the perspective of a hypothetical "reasonable consumer," saying the court requires the plaintiffs to show that they themselves suffered an injury. "The court has seen the packaging at issue -- plaintiffs bring it to each hearing -- and finds that it is not designed to mislead consumers," Judge Murphy said. "It says what it is. Judgment is proper as a matter of law because none of the plaintiffs have shown their pecuniary loss was caused by defendants' fraud, deceit or mislabeling." Saying the summary judgment was "the put up or shut up moment in a lawsuit," Judge Murphy outlined one by one how the plaintiffs had failed in their response briefs to show a causal relationship between the allegedly misleading packaging and the decision to purchase the product. He noted that several plaintiffs were clearly motivated to buy Grove Square Coffee because of the price point, the desire to try new things or a host of other factors, according to the order. The plaintiffs filed suit against Sturm, a division of Treehouse Foods Inc., in August 2011, claiming violations of various state false advertising and deceptive trade statutes on behalf of a class of consumers from Alabama, California, North Carolina, South Carolina, Tennessee, New Jersey, Illinois and New York. Judge Murphy rejected a class certification bid this August, and the Nov. 20 order also dealt with a bid to reconsider the order submitted by the plaintiffs in light of the Seventh Circuit's recent ruling in Butler v. Sears, Roebuck and Co. In that ruling, the appeals court reinstated certification in two breach of warranty class actions against Sears over allegedly defective washing machines after ruling that it would "drive a stake through the heart of the class action device" if every member of a class was required to show identical damages. Judge Murphy rejected the reconsideration bid after pointing out a key difference between the Sturm suit and Butler, which he said involved a "single, central, common issue of liability" concerning whether the Sears products were defective. In the Sturm suit, however, it is the issue of establishing liability through causation rather than proof of damages that requires individualized inquiry, according to the order. "Of course all the facts as between individual class members needn't be identical in order to satisfy Rule 23 -- that is not the standard the court held plaintiffs to," Judge Murphy said. "But legal inquiries required to determine liability must predominate. They do not here." The plaintiffs are represented by Michael H. Maizes of Maizes & Maizes LLP. The defendants are represented by Craig Fochler -- cfochler@foley.com -- Rebecca Hanson -- rhanson@foley.com -- Aaron Weinzierl -- aweinzierl@foley.com --Jacki Wallace and Michael Conway -- mconway@foley.com -- of Foley & Lardner LLP. The case is Gladstone v. Sturm Foods, Inc. et al, case number 3:11-cv-01068 in the U.S. District Court for the Southern District of Illinois. SUTTER HEALTH: Court Dismisses "Sidibe" Class Action ---------------------------------------------------- Magistrate Judge Laurel Beeler dismissed the case captioned DJENEBA SIDIBE and DIANE DEWEY, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. SUTTER HEALTH, and DOES 1 through 25, inclusive, Defendants, NO. C 12-04854 LB, (N.D. Cal.). Plaintiffs Djeneba Sidibe and Diane Dewey sued Sutter Health, a company that owns and operates hospitals and other health care service providers, alleging that Sutter's anticompetitive conduct in the health care services industry in Northern California violates federal and state antitrust laws and California's unfair competition law. The alleged anticompetitive conduct includes (1) Sutter's imposing tying arrangements that require health plans to include all Sutter providers in their networks in order to have reduced rate access at Sutter's hospitals and (2) Sutter's use of its market power to maintain and enhance its monopolies over Inpatient Hospital Services in Northern California. Sutter moved to dismiss for lack of standing and for failure to state a claim. The court granted Sutter's motion to dismiss without prejudice and with leave to amend. Plaintiffs have 30 days from the date of the order to file a third amended complaint. A copy of the District Court's November 7, 2013 Order is available at http://is.gd/JEqpCm from Leagle.com. SYMMETRICOM INC: Being Sold to Microsemi for Too Little, Suit Says ------------------------------------------------------------------ William Rapien, individually and on behalf of all others similarly situated v. Symmetricom, Inc., James A. Chiddix, Elizabeth A. Fetter, Robert T. Clarkson, Robert M. Neumeister, Jr., Richard N. Snyder, Robert J. Stanzione, Alfred Boschulte, Richard W. Oliver, Microsemi Corporation, and Pett Acquisition Corp., Case No. 9058- VCL (Del. Ch. Ct., November 4, 2013) is brought on behalf of the public stockholders of Symmetricom to enjoin a proposed transaction pursuant to which Symmetricom will be acquired by Microsemi and its wholly owned subsidiary, PETT Acquisition Corp. The Proposed Transaction is the product of a flawed process that resulted in the Board of Directors' failure to maximize stockholder value and deprives Symmetricom's public stockholders of the ability to participate in the Company's long-term prospects, Mr. Rapien contends. Symmetricom is a Delaware corporation headquartered in San Jose, California. Symmetricom provides timekeeping technologies, instruments, and solutions worldwide. The Company offers timekeeping in GPS satellites, national time references, and national power grids, as well as critical military and civilian networks that enable data, voice, mobile, and video services. The Individual Defendants are directors and officers of the Company. Microsemi is a California corporation headquartered in Aliso Viejo, California. Merger Sub is a Delaware corporation and wholly owned subsidiary of Microsemi. The Plaintiff is represented by: Seth D. Rigrodsky Brian D. Long Gina M. Serra RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Telephone: (302) 2955310 E-mail: sdr@rl-legal.com bdl@rigrodskylong.com gs@rigrodskylong.com The Defendants are represented by: Daniel A. Dreisbach, Esq. Thomas A. Uebler, Esq. RICHARDS LAYTON & FINGER PA-WILMINGTON 920 N King St. Wilmington, DE 19801 Telephone: (302) 651-7762 E-mail: dreisbach@rlf.com uebler@rlf.com - and - Michael A. Weidinger, Esq. PINCKNEY HARRIS & WEIDINGER LLC 1220 N Market St., Suite 950 Wilmington, DE 19801 Telephone: (302) 504-1528 E-mail: mweidinger@phw-law.com TAX CONNECTION: Loses Summary Judgment Bid in TCPA Class Action --------------------------------------------------------------- In the class action lawsuit captioned JACKSON FIVE STAR CATERING, INC., Plaintiff, v. JOHN R. BEASON and TAX CONNECTION WORLDWIDE LLC, CASE NO. 10-10010, (E.D. Mich.), Jackson Five claims the Defendants, John R. Beason d/b/a Tax Connection World and Tax Connection Worldwide LLC, violated the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 (TCPA) by faxing advertisements without the recipients' invitation or permission. Currently pending are (1) the Plaintiff's motion to strike the testimony of the Defendants' expert witness, Ray Horak, (2) the Plaintiff's motion for summary judgment, and (3) the Defendants' motion for summary judgment. District Judge Julian Abele Cook, Jr., (1) grants the Plaintiffs' motion to strike the expert testimony of Ray Horak; (2) denies the Defendants' motion for summary judgment; and (3) grants the Plaintiffs' motion for summary judgment except for the Plaintiffs' request for treble damages, which is denied. A copy of the District Court's November 8, 2013 Order is available at http://is.gd/f8zOSbfrom Leagle.com. TCCD INT'L: Deceives Consumers of Buckpower Antler, Suit Claims --------------------------------------------------------------- Timothy Clark, on behalf of himself and all others similarly situated v. T.C.C.D. International, Inc., a Florida Corporation, and Does 1-10, inclusive, Case No. 2:13-cv-08140-GW-FFM (C.D. Cal., November 4, 2013) is brought to enjoin the alleged ongoing deception of thousands of California and nationwide consumers by the Defendant, and to recover the monetary gains taken by this unlawful practice. On its product label, TCCD claims that its Buckpower Antler Velvet product will "increase muscle strength & recovery," "promote healthy joint function," "improves energy & endurance," and "boosts libido." In reality, the Product is nothing of the sort and has no such capabilities, Mr. Clark alleges. He contends that this false and deceptive marketing enables TCCD to unfairly capture sales that it would not make but for its deception, and also charges consumers a premium based thereon. T.C.C.D. International, Inc. is a Florida corporation, with its principle place of business in Pompano Beach, Florida. The Company manufactures, markets, distributes and sells Buckpower, a deer antler velvet dietary supplement. The Defendant sells its Product to consumers in California and throughout the nation. The Plaintiff does not know the true names or capacities of the Doe Defendants. The Plaintiff is represented by: Michael Louis Kelly, Esq. Behram V. Parekh, Esq. Heather M. Baker, Esq. KIRTLAND & PACKARD LLP 2041 Rosecrans Avenue, Suite 300 El Segundo, CA 90245 Telephone: (310) 536-1000 Facsimile: (310) 536-1001 E-mail: mlk@kirtlandpackard.com byp@kirtlandRackard.com hmb@kirtlandpackard.com TEVA PHARMACEUTICALS: Faces Antitrust Class Action Over Aggrenox ---------------------------------------------------------------- Jon Campisi, writing for The Pennsylvania Record, reports that a federal antitrust complaint has been filed against Teva Pharmaceuticals and other generic drug manufacturers alleging the defendants engaged in an anti-competitive scheme to prevent a generic equivalent of the drug Aggrenox from entering the market. The class action suit, which was brought by Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund on behalf of itself and others similarly situated, accuses the defendants of colluding to keep a generic version of Aggrenox off the market. The pharmaceutical is a combined aspirin and extended-release dipyridamole treatment to lower the risk of stroke in people who have had a transient ischemic attack or stroke due to a blood clot. According to the complaint, Boehringer Ingelheim Pharma started selling Aggrenox in the winter of 199, with the drug soon seeing great commercial success; sales reached $366 million in 2008. In January 2007, the suit states, Barr Pharmaceuticals, another co-defendant named in the litigation, sought regulatory approval to market a generic version of the drug. The complaint goes on to allege that in order to delay the "substantial loss of profits" it would have suffered from competing generic versions of Aggrenox, Boehringer, in the summer of 2008, entered into an exclusive payment agreement, also called a "pay-for-delay" agreement, with Barr, by which Boehringer agreed to pay Barr in exchange for Barr's commitment to postpone marketing its generic version of the medicine until July 1, 2015. The alleged agreement included an estimated $120 million in one- time and yearly royalty payments, and a promise to not compete against Barr with Boehringer's own authorized generic version of Aggrenox, according to the complaint. The plaintiff claims that it and others have paid more for Aggrenox than it would have absent the defendants' "anti- competitive conduct." "But for the pay-for-delay agreement, less expensive equivalents of Aggrenox would have been available much sooner than July 2015," the complaint states. The plaintiff brings suit on behalf it itself and a proposed class of consumers and third-party payors who purchased or paid for Aggrenox since Aug. 14, 2009. The lead plaintiff in the action is based in Springfield, MO. Aside from Teva, Boehringer and Barr, the other defendants listed in the litigation is Duramed Pharmaceuticals Inc. The complaint says that fraudulent concealment tolled the statute of limitations in the matter, since the plaintiff and class members had no knowledge of the defendants' "unlawful self- concealing scheme" and would not have been able to discover the conspiracy through the "exercise of reasonable diligence" more than four years prior to the filing of the lawsuit. "This is true because the nature of defendants' conspiracy was self-concealing and because the defendants employed deceptive practices and techniques of secrecy to avoid detection of, and to fraudulently conceal, their contract, combination, conspiracy, and scheme," the suit reads. The defendants are accused of violating The Clayton Act and The Sherman Act. The suit also contains counts of unjust enrichment and disgorgement of profits. The plaintiff seeks declaratory judgment, litigation costs, attorneys' fees and other relief. The complaint was filed by attorneys Jeannine Kenney -- jkenney@hausfeldllp.com -- and Brent W. Landau -- blandau@hausfeldllp.com -- of the Philadelphia firm Hausfeld LLP, and lawyers Lee Albert -- lalbert@glancylaw.com -- and Gregory B. Linkh -- glinkh@glancylaw.com -- of the New York firm Glancy Binkow & Goldberg. The federal case number is 2:13-cv-06692-MSG. UMG RECORDINGS: Court Okays Bid to Compel Document Production ------------------------------------------------------------- RICK JAMES, et al., Plaintiffs, v. UMG RECORDINGS, INC., Defendant, CASE NO. 11-CV-01613-SI (MEJ), (N.D. Cal.), is a consolidated putative class action for breach of contract, breach of the covenant of good faith and fair dealing, and statutory violations of various state laws against defendant, UMG Recordings, Inc., and its affiliated and subsidiary entities filed by plaintiff recording artists and producers, who allege that UMGR underpaid licensing royalties on digital downloads of Plaintiffs' recordings. The current dispute concerns Plaintiffs' motion to compel responses to Request for Production (RFP) Nos. 73 and 76, which seek all documents demonstrating UMGR's interpretation and input into its royalty system of the named plaintiffs' contract terms and data regarding the revenue received by UMGR, as well as calculation of royalties for downloads of the named plaintiffs' recordings from 1999 to the present. UMGR opposed the motion, arguing that the document requests violate Federal Rule of Civil Procedure 34(b)(1)(a) because they are overbroad. UMGR also opposed the motion on the grounds that: (1) production of documents evidencing electronic royalty statements or receipts for digital downloads would impermissibly require UMGR to create or prepare new documents; and (2) any "royalty briefs" that might exist are privileged. Magistrate Judge Maria-Elena James denied the Plaintiffs' motion to compel responses to Request for Production No. 73, holding that Plaintiffs' justification for their need of electronic versions of the royalty statements falls far short of the mark. The Court declined to compel UMGR to create new documents solely for this purpose. The Court also found the burden far outweighs the usefulness of ordering production of evidence of receipts for digital downloads. The parties may, however, meet and confer regarding the cost and timing required to extract the information, said Judge James. If Plaintiffs then wish to proceed with their request, they may do so at their own expense, she added. Judge James also pointed out that UMGR has stated in its response to the pending motion that it will provide all available discovery material in response to this RFP by November 15, 2013. Accepting this statement, and absent any argument by Plaintiffs as to why the Court should compel an earlier production date, the motion to compel production of contract identification information prior to November 15, 2013 was denied. Lastly, the Court granted the Plaintiffs' request for Production No. 76 (royalty briefs), to the extent that royalty briefs exist for Plaintiffs' contracts. The Court said it is unwilling to accept UMGR's argument that royalty briefs "may not even exist;" UMGR must make this determination. A copy of the District Court's November 8, 2013 Discovery Order is available at http://is.gd/AX5DUcfrom Leagle.com. UMG RECORDINGS: Bid to Dismiss "Burrow" Privacy Suit Denied ----------------------------------------------------------- District Judge Harry D. Leinenweber denied a motion to the dismiss the case captioned ROBERT C. BURROW, on Behalf of Himself and Others Similarly Situated, Plaintiffs, v. SYBARIS CLUBS INTERNATIONAL, INC., RANDALL D. REPKE, and CHARLENE FARRELL, Defendants, CASE NO. 13 C 2342, (N.D. Ill.). Plaintiff Robert C. Burrow brought the class-action lawsuit against Defendants Sybaris Clubs International, Inc., Randall D. Repke, and Charlene Farrell on March 28, 2013. Sybaris is a chain of five motel suites that cater to customers looking for a romantic paradise. Sybaris employed Mr. Burrow as a reservation desk clerk from March 2004 through May 2007 and from April 2008 through May 2013. In 2011, the Defendants installed a new telephone system, known as a ShoreTel Sky System. The new system routed all incoming calls through a central processer and allowed Sybaris management and other employees to listen live to customer and employee conversations. In addition, the system recorded all calls made by or to the reservation desk at each Sybaris location. The recordings were saved on computer servers and could be accessed through a web interface. In his Complaint, Mr. Burrow alleged that the Defendants invaded his right of seclusion and violated the Federal Wiretap Act, the Illinois Eavesdropping Statute, the Indiana Wiretap Act, and the Wisconsin Wiretap Act. Mr. Burrow alleged that his rights of privacy and the rights of other callers or employees who made phone calls from work were violated when Sybaris installed the new recording system and did not inform employees or customers. Defendants responded by moving to dismiss the case. A copy of the District Court's November 8, 2013 Memorandum Opinion and Order is available at http://is.gd/7Nf0RYfrom Leagle.com. UNION FIRST: Plans to Settle Stellar One Shareholder Class Action ----------------------------------------------------------------- Carol Hazard, writing for Richmond Times-Dispatch, reports that Union First Market Bankshares Corp. and StellarOne Corp. plan to settle a lawsuit filed by a StellarOne shareholder opposed to the planned merger, according to documents filed on Nov. 21 with the Securities and Exchange Commission. The amount of the settlement was not disclosed in the regulatory filing. Jaclyn Crescente, individually and purportedly on behalf of other StellarOne shareholders, filed a class-action complaint June 14 against StellarOne, its directors and Union First Market Bankshares, the holding company for Union First Market Bank. The complaint alleges that StellarOne directors breached their fiduciary duties by approving the merger with Richmond-based Union First Market, and that Union First Market aided and abetted the breaches of duty. The lawsuit, filed in U.S. District Court for the Western District of Virginia in Charlottesville, seeks to prevent the merger and receive monetary damages if the transaction is completed. "Union and the StellarOne defendants deny each of the allegations in the lawsuit," according to the Nov. 21 regulatory filing. Union First Market and Charlottesville-based StellarOne have received regulatory approvals for the merger, which is expected to close on or around Jan. 1. The Union First Market shareholder meeting is Dec. 5, and that is the last approval needed to close on the transaction. The all-stock deal, announced June 10, is valued at $445.1 million. The combined entity would create one of the largest community banks in Virginia with $7.1 billion in assets. The surviving entity, per the agreement, will be Union First Market and the bank will be based in Richmond. To avoid the risk that the lawsuit could delay or harm the consummation of the merger and to minimize the expense and burden of legal action, the banks agreed to make supplemental disclosures related to the proposed settlement, the SEC document states. The settlement will require court approval, and there are no assurances that the settlement will be made, the filing says. Also, "the settlement will not affect the consideration to be paid by Union to StellarOne shareholders in connection with the merger or the timing of the respective special meetings of Union shareholders and StellarOne shareholders," the filing states. The agreement calls for shareholders of StellarOne to receive 0.9739 share of Union First Market common stock for each share of StellarOne they own. VERENGO INC: Violates TCPA, Class Suit Claims in California ----------------------------------------------------------- Shahar Lushe, individually and on behalf of all others similarly situated v. Verengo, Inc. d/b/a Verengo Solar, Case No. 2:13-cv- 07632-ABC-RZ (C.D. Cal., October 16, 2013) is brought on behalf of all persons in the United States, who received a call on their cellular telephones from the Defendant with a prerecorded message marketing its product and services in violation of the Telephone Consumer Protection Act. Verengo, Inc. is a Delaware headquartered in Torrance, California. Verengo is a privately-held company whose principal activity is installing residential solar equipment. The Plaintiff is represented by: Beth E. Terrell, Esq. Michael Duane Daudt, Esq. Whitney Stark, Esq. TERRELL MARSHALL DAUDT AND WILLIE PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 350-3528 E-mail: bterrell@tmdwlaw.com mdaudt@tmdwlaw.com wstark@tmdwlaw.com The Defendant is represented by: Joshua M. Briones, Esq. DLA PIPER US 2000 Avenue of the Stars, Suite 400 North Tower Los Angeles, CA 90067-4704 Telephone: (310) 595-3000 Facsimile: (310) 595-3300 E-mail: joshua.briones@dlapiper.com VOLKSWAGEN GROUP: Recalls 2.6 Million Vehicles Worldwide -------------------------------------------------------- Bloomberg News reports that Volkswagen Group is recalling about 2.6 million vehicles worldwide, including its biggest such move in China, to fix electronic and drive-system flaws. Volkswagen is recommending that mineral oil be used in dual-clutch gearboxes on 1.6 million cars and vans in place of synthetic oil, Michael Franke, a spokesman at the company, said on Nov. 14. Another 800,000 Tiguan compact SUVs may have lighting defects and 239,000 Amarok pickups should be checked for fuel leaks, the automaker added on Nov. 14 in two statements. The recalls this month by Volkswagen as well as Chrysler Group, Toyota Motor Corp. and Mitsubishi Motors Corp. highlight the drawbacks of adding increasingly sophisticated technology to new models. Nissan Motor Co. hired the senior auto reviewer for Consumer Reports magazine in the U.S. as its executive adviser on vehicle quality last year, citing the need to "keep pace with" product complexity. "This isn't a VW-specific problem, it's one of the things that happen at mass-market carmakers," Frank Schwope, a Hanover, Germany-based analyst at Nord LB, said. "Costs will probably be in the high double-digit or even triple-digit million euro range. They might be partly shared with suppliers involved, but they still make VW's full-year earnings target more difficult to reach." Gearbox Lubricant The lubricant replacement in seven-speed dual-clutch gearboxes is intended to prevent electric malfunctions. The Volkswagen, Audi, Skoda and Seat brand vehicles are targeted by the program, Mr. Franke said. A Chinese regulator said on Nov. 14 that 640,309 cars in that country are affected. VW recalled 384,181 vehicles in China in March after state television featured complaints about vibrations, loss of power and sudden acceleration in models including the Golf, its best-selling car worldwide. That repair program, also involving dual-clutch gearbox flaws, prompted a public apology by Jochem Heizmann, chief of the carmaker's Chinese business, at the Shanghai auto show in April. The repair and replacement programs announced by Volkswagen on Nov. 14 compare with recalls of 10 million vehicles by Toyota in 2009 and 2010 for possible flaws related to unintended acceleration, including sticky accelerator pedals and floor mats that could shift out of position. Toyota Program Toyota said on Nov. 6 that it's recalling 4,000 Tacoma 4-cylinder pickups in the United States to fix engine valve springs. It's also recalling 1,180 vehicles in China for a similar problem, that country's regulator said. Chrysler said on Nov. 8 that it's recalling about 1.2 million Ram trucks to fix a steering-system part. Mitsubishi's recall program involves a combined 96,800 vehicles in Japan for headline or engine-component flaws. China, the world's largest auto market, is a critical market for VW's strategy to become the world's largest automaker by 2018 while making up for a European industry that's shrinking for a sixth straight year. The gearbox-lubricant fault particularly affects vehicles driving in hot and humid weather in urban areas with a lot of stop-and-go traffic, Volkswagen said on Nov. 14. WARNER CHILCOTT: Faces Antitrust Suit Over Loestrin 24 Fe --------------------------------------------------------- Denise Loy, a resident citizen of the State of Florida, Melissa Chrestman, a resident citizen ofthe State of Tennessee, Mary Alexander, a resident citizen of the State of North Carolina, Individually and on Behalf of all Others Similarly Situated v. Warner Chilcott Public Limited, Company, Warner Chilcott Company, LLC, Warner Chilcott Holdings Company III, Ltd, Warner Chilcott Corporation, Warner Chilcott (US), LLC, Warner Chilcott Sales (US), LLC, Warner Chilcott Laboratories Ireland Limited, Warner Chilcott Company, Inc., Actavis, Inc., Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., Lupin Ltd., and Lupin Pharmaceuticals Inc., Case No. 1:13-cv-00695-S-PAS (D.R.I., October 16, 2013) is an antitrust class action seeking treble damages from the Defendants. The lawsuit arises from the Defendants' alleged unlawful and anti- competitive scheme to exclude generics from the market for oral contraceptives comprised of 24 norethindrone acetate/ethinyl estradiol tablets and four ferrous fumarate tablets (placebo), which Warner Chilcott sells under the brand name Loestrin 24 Fe. The Plaintiffs assert that the Defendants' market-allocation scheme injured the Plaintiffs and the Class of end-payor purchasers by preventing generic competition in the market. The Plaintiffs are represented by: Donald A. Migliori, Esq. MOTLEY RICE LLC 321 South Main Street, 2nd Floor Providence, RI 02903-7108 Telephone: (401) 457-7700 Facsimile: (401) 457-7708 E-mail: dmigliori@motleyrice.com - and - William J. Doyle, II, Esq. James R. Hail, Esq. Chris W. Cantrell, Esq. DOYLE LOWTHER LLP 10200 Willow Creek Road, Suite 150 San Diego, CA 92131 Telephone: (858) 935-9960 Facsimile: (858) 939-1939 E-mail: bill@doylelowther.com jim@doylelowther.com ccantrell@doylelowther.com WEST MARINE: Court Cites Factors to Consider in Class Settlements ----------------------------------------------------------------- In KAREN TAYLOR, individually and on behalf of all others similarly situated, and PAULISA FIELDS, Plaintiffs, v. WEST MARINE PRODUCTS INC, Defendant, NO. C 13-04916 WHA, (N.D. Cal.), District Judge William Alsup issued a notice regarding factors to be evaluated for any proposed class settlement. According to Judge Alsup, for the guidance of counsel, these factors will typically be considered in determining whether to grant preliminary approval to a class settlement: 1. ADEQUACY OF REPRESENTATION. 2. DUE DILIGENCE. 3. COST-BENEFIT FOR ABSENT CLASS MEMBERS. 4. THE RELEASE. 5. EXPANSION OF THE CLASS. 6. REVERSIONS. 7. CLAIM PROCEDURE. 8. ATTORNEY'S FEES. 9. DWINDLING OR MINIMAL ASSETS. 10. TIMING OF PROPOSED SETTLEMENT. 11. A RIGHT TO OPT OUT IS NOT A CURE-ALL. 12. INCENTIVE PAYMENTS. 13. NOTICE TO CLASS MEMBERS. "Counsel should be mindful of the factors identified in Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998)," Judge Alsup added. "Finally, for an order denying proposed preliminary approval, see Kakani v. Oracle Corp., No. C 06-06493 WHA, 2007 WL 1793774 (N.D. Cal. June 19, 2007)." A copy of the District Court's November 8, 2013 Notice is available at http://is.gd/rwb1nVfrom Leagle.com. WYNDHAM VACATION: Court Clarifies Arbitration Ruling ---------------------------------------------------- In the case captioned THOMAS CROOK, et al., Plaintiffs, v. WYNDHAM VACATION OWNERSHIP, INC., et al., Defendants, CASE NO. 13-CV- 03669-WHO, (N.D. Cal.), District Judge William H. Orrick issued an amended order granting a motion to compel arbitration to clarify that the matter is stayed in the court, not dismissed. The Amended Order clarifies that the Motion to Compel Arbitration is granted and the action is stayed pending arbitration. The parties are directed to submit a joint case management statement 180 days from the date of the Order, and every 180 days thereafter, apprising the Court of the status of the arbitration. A copy of the District Court's November 7, 2013 Amended Order is available at http://is.gd/hJFfWl from Leagle.com. XPRESSPA-JDEE JV: Accord in "Kuznetsov" Suit Wins Final Court OK ---------------------------------------------------------------- Magistrate Judge Joan M. Azrack granted final approval of a class- wide settlement in the wage-and-hour action captioned ULYANA KUZNETSOV, XIU JUAN ZHANG, XIN DAI, SIU LING CHAN, FENG LI SUN, SHU XIAN LIU, JIAN GUO ZHANG, SHANG LIN LI, SHU FEN CHOU, and YIN MAN SHUM, on behalf of themselves and others similarly situated Plaintiffs, v. XPRESSPA-JDEE JV LLC, XPRESSPA AT TERM. 4 JFK, LLC, XPRESSPA ATLANTA TERMINAL A, LLC, XPRESSPA ATLANTA TERMINAL C, LLC, XPRESSPA BOSTON LOGAN, LLC, XPRESSPA CHARLOTTE AIRPORT LLC, XPRESSPA CHICAGO O'HARE, LLC, XPRESSPA DENVER AIRPORT, LLC, XPRESSPA DETROIT AIRPORT, LLC, XPRESSPA DFW AIRPORT, LLC, XPRESSPA DFW KIOSK LLC, XPRESSPA DFW TERMINAL D, LLC, XPRESSPA FRANCHISING LLC, XPRESSPA HOUSTON TERMINAL D, LLC, XPRESSPA INTERNATIONAL HOLDINGS, LLC, XPRESSPA JFK TERMINAL 1, LLC, XPRESSPA JFK TERMINAL 5, LLC, XPRESSPA JFK TERMINAL 7, LLC, XPRESSPA LAGUARDIA AIRPORT, LLC, XPRESSPA LAS VEGAS TERMINAL D, LLC, XPRESSPA LAX TERMINAL5, LLC XPRESSPA MEXICO, LLC, XPRESSPA MSP AIRPORT, LLC, XPRESSPA NEWARK AIRPORT, LLC, XPRESSPA ONLINE SHOPPING, LLC, XPRESSPA ORLANDO AIRPORT, LLC, XPRESSPA ORLANDO AIRSIDE 4, LLC, XPRESSPA PHILADELPHIA AIRPORT, LLC, XPRESSPA PHILADELPHIA TERMINAL A WEST, LLC, XPRESSPA PITTSBURGH A, LLC, XPRESSPA RALEIGH-DURHAM INTL., LLC, XPRESSPA S.F. INTERNATIONAL, LLC, XPRESSPA ST. LOUIS AIRPORT, LLC, XPRESSPA WASHINGTON REAGAN, LLC, SYDELLE ELKIND, MORETON BINN, and, MATTHEW PODELL, Defendants, NO. 10-CV-3473 (JMA), (E.D. N.Y.). The Court certifies the settlement class defined as: "All spa technicians employed by XpresSpa at LaGuardia Airport ("LGA"), John F. Kennedy ("JFK") International Airport, and other locations within the state of New York, from July 29, 2004 through May 16, 2013." The Court certifies a settlement collective action under the FLSA consisting of all spa technicians employed by XpresSpa at LGA and JFK, and other locations within the state of New York, from September 12, 2010 through September 30, 2012. The Court grants a service award of $10,000 to Class Representative Ulyana Kuznetsov. The Court awards Advanced Litigation Strategies, LLC, administration fees of $16,000. The Court awards Class Counsel $5,000 in out-of-pocket expenses, and $29,000 in attorneys' fees. A copy of the District Court's November 8, 2013 Order is available at http://is.gd/Jp3cvVfrom Leagle.com. YOUNG WORLD: Health Dep't Warns About Lead Levels in Bracelets -------------------------------------------------------------- Eileen Ambrose and Meredith Cohn, writing for The Baltimore Sun, report that Young World Store on Liberty Heights Avenue has been cited by the Baltimore City Health Department for selling children's bracelets with excessive levels of lead, the agency announced on Nov. 21. The agency said lead levels in the multicolored bangle bracelet are 25 times the amount permitted. This is the third time in three years that the store at 2401 Liberty Heights Ave. has been cited for lead violations, according to the health department, which alerted the Consumer Product Safety Commission to the most recent findings. "This bracelet sells for just a few dollars but is not a bargain and can be a significant danger to small children," said Baltimore Health Commissioner Dr. Oxiris Barbot in a statement. "The costs of lead poisoning can last a lifetime." High levels of lead in children can impair development and cause death, the agency said. The health department advises parents to discard the bracelet if they purchased one. Dan Hershkowitz, the retailer's chief financial officer, said the store has removed the jewelry. The bracelet had come from an overseas vendor who had certified that the item met health standards, he said. Young World won't sell anything that can be harmful to children, he added. The health department has made a push in recent years to stem the sales of jewelry containing high levels of lead. Asbestos Litigation ASBESTOS UPDATE: OneBeacon Future Losses May Exceed NICO Coverage ----------------------------------------------------------------- OneBeacon Insurance Group, Ltd., said that future losses could exceed the $198.3 million of protection remaining under the $2.5 billion reinsurance contract with National Indemnity Company for old asbestos and environmental claims and certain other exposures, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended September 30, 2013. OneBeacon was acquired by White Mountains Insurance Group, Ltd., from Aviva plc in 2001. In connection with the OneBeacon Acquisition, Aviva caused OneBeacon to purchase two reinsurance contracts from subsidiaries of Berkshire Hathaway Inc.: a reinsurance contract with National Indemnity Company for up to $2.5 billion in old asbestos and environmental claims and certain other exposures (the "NICO Cover") and an adverse loss reserve development cover from General Reinsurance Corporation for up to $570.0 million, comprised of $400.0 million of adverse loss reserve development occurring in years 2000 and prior in addition to $170.0 million of reserves ceded as of the date of the OneBeacon Acquisition. The NICO Cover and GRC Cover, which were contingent on and occurred contemporaneously with the OneBeacon Acquisition, were put in place in lieu of a seller guarantee of loss and LAE reserves and are therefore accounted for under GAAP as a seller guarantee. Under the terms of the NICO Cover, NICO receives the economic benefit of reinsurance recoverables from certain of OneBeacon's third party reinsurers ("Third Party Reinsurers") in existence at the time the NICO Cover was executed ("Third Party Recoverables"). As a result, the underlying Third Party Recoverables serve to protect the $2.5 billion limit of NICO coverage for the benefit of OneBeacon. OneBeacon estimates that on an incurred basis it has used approximately $2.3 billion of the coverage provided by NICO at September 30, 2013. Net losses paid totaled approximately $1.6 billion as of September 30, 2013. To the extent that actual experience differs from OneBeacon's estimate of ultimate A&E losses and Third Party Recoverables, future losses could exceed the $198.3 million of protection remaining under the NICO Cover at September 30, 2013. Pursuant to the GRC Cover, OneBeacon is not entitled to recover losses to the full contract limit if such losses are reimbursed by GRC more quickly than anticipated at the time the contract was signed. OneBeacon intends to seek reimbursement from GRC only for claims which result in payment patterns similar to those supporting its recoverables recorded pursuant to the GRC Cover. The economic cost of not submitting certain other eligible claims to GRC is primarily the investment spread between the rate credited by GRC and the rate achieved by OneBeacon on its own investments. This cost, if any, is expected to be nominal. OneBeacon has ceded estimated incurred losses of $562.0 million to GRC under the GRC Cover. As of September 30, 2013, OneBeacon has $384.3 million of reinsurance recoverable on unpaid losses outstanding under the GRC Cover. OneBeacon Insurance Group, Ltd. (OneBeacon), through its subsidiaries, is a specialty property and casualty insurance writer that offers a range of insurance products through independent agencies, regional and national brokers, wholesalers and managing general agencies. The Company's products relate to professional liability, marine, entertainment, sports and leisure, excess property, environmental, group accident, crop, programs, public entities, technology, surety, and tuition refund. The Company operates in two segments: Specialty Products, Specialty Industries, and Investing, Financing and Corporate. In February 2012, the Company sold its AutoOne Insurance business (AutoOne) to Interboro Holdings, Inc. (Interboro). In January 2013, the Company sold Essentia Insurance Company to Markel Corp. ASBESTOS UPDATE: 5.05MM Shares from AWI PI Trust Held in Treasury ----------------------------------------------------------------- Armstrong World Industries, Inc., paid approximately $260 million to acquire 5,057,382 shares from the Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust and Armor TPG Holdings LP, to be held in treasury, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. The Company states: "In December 2000, AWI filed a voluntary petition for relief under Chapter 11 of the U.S. Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware in order to use the court-supervised reorganization process to achieve a resolution of AWI's asbestos-related liability. On October 2, 2006, AWI's court-approved plan of reorganization became effective and AWI emerged from Chapter 11. All claims in AWI's Chapter 11 case have been resolved and closed. "On October 2, 2006, the Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust was created to address AWI's personal injury (including wrongful death) asbestos-related liability. All present and future asbestos-related personal injury claims against AWI, including contribution claims of co-defendants but excluding certain foreign claims against subsidiaries, arising directly or indirectly out of AWI's pre-Filing use of, or other activities involving, asbestos are channeled to the Asbestos PI Trust. "In August 2009, Armor TPG Holdings LP and the Asbestos PI Trust entered into agreements whereby TPG purchased 7,000,000 shares of AWI common stock from the Asbestos PI Trust and acquired an economic interest in an additional 1,039,777 shares from the Asbestos PI Trust. During the fourth quarter of 2012, the Asbestos PI Trust and TPG together sold 5,980,000 of their shares in a secondary public offering. Additionally, during the third quarter of 2013, the Asbestos PI Trust and TPG together sold 12,057,382 of their remaining shares in a secondary public offering. During this transaction we paid approximately $260 million to acquire 5,057,382 shares to be held in treasury. The treasury share purchase was funded by existing cash and borrowings under our credit and securitization facilities. As a result of these transactions the Asbestos PI Trust and TPG together now hold approximately 35% of AWI's outstanding shares and maintain a shareholders' agreement, pursuant to which they agree to vote their shares together on certain matters. We did not sell any shares and did not receive any proceeds from these offerings." Armstrong World Industries, Inc. (AWI) is a global producer of flooring products and ceiling systems for use in the construction and renovation of residential, commercial and institutional buildings. The Company designs, manufactures and sells flooring products (resilient and wood) and ceiling systems (mineral fiber, fiberglass and metal) globally. The Company segments includes: Building Products, Resilient Flooring and Wood Flooring. The Company's Building Products, Resilient Flooring, Wood Flooring and Cabinets segments sell products for use in the home. Its products are used in new home construction and existing home renovation work. Its products, primarily ceilings and Resilient Flooring, are used in commercial and institutional buildings. On September 1, 2012, it sold Patriot Flooring Supply, Inc. to The Belknap White Group. Effective October 31, 2012, the Company sold of its cabinets business to American Industrial Partners. ASBESTOS UPDATE: Pittsburg Corning Plan Ruling May be Appealed -------------------------------------------------------------- PPG Industries, Inc., says rulings related to the plan of reorganization in the Chapter 11 case of Pittsburgh Corning Corporation may be appealed to the U.S. Third Circuit Court of Appeals, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission Quarter ended September 30, 2013. For over 30 years, PPG has been a defendant in lawsuits involving claims alleging personal injury from exposure to asbestos. Most of PPG's potential exposure relates to allegations by plaintiffs that PPG should be liable for injuries involving asbestos-containing thermal insulation products, known as Unibestos, manufactured and distributed by Pittsburgh Corning Corporation ("PC"). PPG and Corning Incorporated are each 50 percent shareholders of PC. PPG has denied responsibility for, and has defended, all claims for any injuries caused by PC products. As of the April 16, 2000 order which stayed and enjoined asbestos claims against PPG, PPG was one of many defendants in numerous asbestos-related lawsuits involving approximately 114,000 claims served on PPG. During the period of the stay, PPG generally has not been aware of the dispositions, if any, of these asbestos claims. On April 16, 2000, PC filed for Chapter 11 Bankruptcy in the U.S. Bankruptcy Court for the Western District of Pennsylvania located in Pittsburgh, Pa. Accordingly, in the first quarter of 2000, PPG recorded an after-tax charge of $35 million for the write-off of all of its investment in PC. As a consequence of the bankruptcy filing and various motions and orders in that proceeding, the asbestos litigation against PPG (as well as against PC) has been stayed and the filing of additional asbestos suits against them has been enjoined, until 30 days after the effective date of a confirmed plan of reorganization for PC substantially in accordance with the settlement arrangement among PPG and several other parties. By its terms, the stay may be terminated if the settlement arrangement is not likely to be consummated. On May 14, 2002, PPG announced that it had agreed with several other parties, including certain of its insurance carriers, the official committee representing asbestos claimants in the PC bankruptcy, and the legal representatives of future asbestos claimants appointed in the PC bankruptcy, on the terms of a settlement arrangement relating to certain asbestos claims against PPG and PC (the "2002 PPG Settlement Arrangement"). On March 28, 2003, Corning Incorporated announced that it had separately reached its own arrangement with the representatives of asbestos claimants for the settlement of certain asbestos claims against Corning Incorporated and PC (the "2003 Corning Settlement Arrangement"). The terms of the 2002 PPG Settlement Arrangement and the 2003 Corning Settlement Arrangement were incorporated into a bankruptcy reorganization plan for PC along with a disclosure statement describing the plan, which PC filed with the Bankruptcy Court on April 30, 2003. Amendments to the plan and disclosure statement were subsequently filed. On November 26, 2003, after considering objections to the second amended disclosure statement and plan of reorganization, the Bankruptcy Court entered an order approving such disclosure statement and directing that it be sent to creditors, including asbestos claimants, for voting. In March 2004, the second amended PC plan of reorganization (the "second amended PC plan of reorganization") received the required votes to approve the plan with a channeling injunction for present and future asbestos claimants under Section 524(g) of the Bankruptcy Code. After voting results for the second amended PC plan of reorganization were received, the Bankruptcy Court judge conducted a hearing regarding the fairness of the settlement, including whether the plan would be fair with respect to present and future claimants, whether such claimants would be treated in substantially the same manner, and whether the protection provided to PPG and its participating insurers would be fair in view of the assets they would convey to the asbestos settlement trust (the "Trust") to be established as part of the second amended PC plan of reorganization. At that hearing, creditors and other parties in interest raised objections to the second amended PC plan of reorganization. Following that hearing, the Bankruptcy Court scheduled oral arguments for the contested items. The Bankruptcy Court heard oral arguments on the contested items on November 17-18, 2004. At the conclusion of the hearing, the Bankruptcy Court agreed to consider certain post-hearing written submissions. In a further development, on February 2, 2005, the Bankruptcy Court established a briefing schedule to address whether certain aspects of a decision of the U.S. Third Circuit Court of Appeals in an unrelated case had any applicability to the second amended PC plan of reorganization. Oral arguments on these matters were subsequently held in March 2005. During an omnibus hearing on February 28, 2006, the Bankruptcy Court judge stated that she was prepared to rule on the PC plan of reorganization in the near future, provided certain amendments were made to the plan. Those amendments were filed, as directed, on March 17, 2006. After further conferences and supplemental briefings, in December 2006, the court denied confirmation of the second amended PC plan of reorganization, on the basis that the plan was too broad in the treatment of allegedly independent asbestos claims not associated with PC. PPG had no obligation to pay any amounts under the 2002 PPG Settlement Arrangement until 30 days after the second amended PC plan of reorganization was finally approved by an appropriate court order that was no longer subject to appellate review (the "Effective Date"). If the second amended PC plan of reorganization had been approved as proposed, PPG and certain of its insurers (along with PC) would have made payments on the Effective Date to the Trust, which would have provided the sole source of payment for all present and future asbestos bodily injury claims against PPG, its subsidiaries or PC alleged to be caused by the manufacture, distribution or sale of asbestos products by these companies. PPG would have conveyed the following assets to the Trust: (i) the stock it owns in PC and Pittsburgh Corning Europe, (ii) 1,388,889 shares of PPG's common stock and (iii) aggregate cash payments to the Trust of approximately $998 million, payable according to a fixed payment schedule over 21 years, beginning on June 30, 2003, or, if later, the Effective Date. PPG would have had the right, in its sole discretion, to prepay these cash payments to the Trust at any time at a discount rate of 5.5 percent per annum as of the prepayment date. In addition to the conveyance of these assets, PPG would have paid $30 million in legal fees and expenses on behalf of the Trust o recover proceeds from certain historical insurance assets, including policies issued by certain insurance carriers that were not participating in the settlement, the rights to which would have been assigned to the Trust by PPG. Under the proposed 2002 PPG Settlement Arrangement, PPG's participating historical insurance carriers would have made cash payments to the Trust of approximately $1.7 billion between the Effective Date and 2023. These payments could also have been prepaid to the Trust at any time at a discount rate of 5.5 percent per annum as of the prepayment date. In addition, PPG would have assigned to the Trust its rights, insofar as they related to the asbestos claims to have been resolved by the Trust, to the proceeds of policies issued by certain insurance carriers that were not participating in the 2002 PPG Settlement Arrangement and from the estates of insolvent insurers and state insurance guaranty funds. Under the proposed 2002 PPG Settlement Arrangement, PPG would have granted asbestos releases to all participating insurers, subject to a coverage-in-place agreement with certain insurers for the continuing coverage of premises claims. PPG would have granted certain participating insurers full policy releases on primary policies and full product liability releases on excess coverage policies. PPG would have also granted certain other participating excess insurers credit against their product liability coverage limits. If the second amended PC plan of reorganization incorporating the terms of the 2002 PPG Settlement Arrangement and the 2003 Corning Settlement Arrangement had been approved by the Bankruptcy Court, the Court would have entered a channeling injunction under Section 524(g) and other provisions of the Bankruptcy Code, prohibiting present and future claimants from asserting bodily injury claims after the Effective Date against PPG or its subsidiaries or PC relating to the manufacture, distribution or sale of asbestos- containing products by PC or PPG or its subsidiaries. The injunction would have also prohibited codefendants in those cases from asserting claims against PPG for contribution, indemnification or other recovery. All such claims would have been filed with the Trust and only paid from the assets of the Trust. To address the issues raised by the Bankruptcy Court in its December 2006 ruling, the interested parties engaged in extensive negotiations regarding the terms of a third amended PC plan of reorganization, including modifications to the 2002 PPG Settlement Arrangement. A modified third amended PC plan of reorganization (the "third amended PC plan of reorganization"), including a modified PPG settlement arrangement (the "2009 PPG Settlement Arrangement"), was filed with the Bankruptcy Court on January 29, 2009. The parties also filed a disclosure statement describing the third amended PC plan of reorganization with the court. The third amended PC plan of reorganization also includes a modified settlement arrangement of Corning Incorporated. Several creditors and other interested parties filed objections to the disclosure statement. Those objections were overruled by the Bankruptcy Court by order dated July 6, 2009 approving the disclosure statement. The third amended PC plan of reorganization and disclosure statement were then sent to creditors, including asbestos claimants, for voting. The report of the voting agent, filed on February 18, 2010, revealed that all voting classes, including asbestos claimants, voted overwhelmingly in favor of the third amended PC plan of reorganization, which included the 2009 PPG Settlement Arrangement. In light of the favorable vote on the third amended PC plan of reorganization, the Bankruptcy Court conducted a hearing regarding the fairness of the proposed plan, including whether (i) the plan would be fair with respect to present and future claimants, (ii) such claimants would be treated in substantially the same manner, and (iii) the protection provided to PPG and its participating insurers would be fair in view of the assets they would convey to the Trust to be established as part of the third amended PC plan of reorganization. The hearing was held in June of 2010. The remaining objecting parties (a number of objections were resolved through plan amendments and stipulations filed before the hearing) appeared at the hearing and presented their cases. At the conclusion of the hearing, the Bankruptcy Court established a briefing schedule for its consideration of confirmation of the plan and the objections to confirmation. That briefing was completed and final oral arguments held in October 2010. On June 16, 2011 the Bankruptcy Court issued a decision denying confirmation of the third amended PC plan of reorganization. Following the June 16, 2011 ruling, the third amended plan of reorganization was the subject of negotiations among the parties in interest, amendments, proposed amendments and hearings. PC then filed an amended PC plan of reorganization on August 17, 2012. Objections to the plan, as amended, were filed by three entities. One set of objections was resolved by PC and another set merely restated for appellate purposes objections filed by a party that the Bankruptcy Court previously overruled. The Bankruptcy Court heard oral argument on the one remaining set of objections filed by the remaining affiliated insurer objectors on October 10, 2012. At the conclusion of that argument, the Bankruptcy Court set forth a schedule for negotiating and filing language that would resolve some, but not all, of the objections to confirmation advanced by the insurer objectors. On October 25, 2012, PC filed a notice regarding proposed confirmation order language that resolved those specific objections. Following additional hearings and status conferences, technical amendments to the PC plan of reorganization were filed on May 15, 2013. On May 16, 2013, the Bankruptcy Court issued a memorandum opinion and interim order confirming the PC plan of reorganization, as amended, and setting forth a schedule for motions for reconsideration. Following the filing of motions for reconsideration, the Bankruptcy Court, on May 24, 2013, issued a revised memorandum opinion and final order confirming the modified third amended plan of reorganization and issuing the asbestos permanent channeling injunction. The remaining insurer objectors filed a motion for reconsideration on June 6, 2013 and the other remaining objector filed a notice of appeal to the U. S. District Court for the Western District of Pennsylvania. The Bankruptcy Court subsequently issued an order declaring that the notice of appeal was a nullity because of the pending motion for reconsideration. Oral argument on the motion for reconsideration was heard on September 9, 2013. In a memorandum opinion dated Nov. 12, 2013, Judge Thomas P. Agresti of the United States Bankruptcy Court for the Western District of Pennsylvania granted Mount McKinley Insurance Company and Everest Reinsurance Company's motion to reconsider in one limited part and denied it in all other aspects. If the District Court ultimately affirms the confirmation order, the remaining objectors could appeal the order to the U.S. Third Circuit Court of Appeals and subsequently could seek review by the U.S. Supreme Court. To address issues raised in the Chapter 11 case of PC, interested parties, including PPG Industries, Inc., entered into a settlement arrangement in 2009. The 2009 PPG Settlement Arrangement will not become effective until certain conditions precedent are satisfied or waived and the amended PC plan of reorganization is finally approved by an appropriate court order that is no longer subject to appellate review, and PPG's initial contributions will not be due until 30 business days thereafter. The Bankruptcy Court's channeling injunction, entered under Section 524(g) of the Bankruptcy Code and which will become effective after the order confirming the modified third amended plan of reorganization is no longer subject to appellate review, will prohibit present and future claimants from asserting asbestos claims against PC. With regard to PPG, the channeling injunction by its terms will prohibit present and future claimants from asserting claims against PPG that arise, in whole or in part, out of exposure to Unibestos, or any other asbestos or asbestos- containing products manufactured, sold and/or distributed by PC, or asbestos on or emanating from any PC premises. The injunction by its terms will also prohibit codefendants in these cases that are subject to the channeling injunction from asserting claims against PPG for contribution, indemnification or other recovery. Such injunction will also preclude the prosecution of claims against PPG arising from alleged exposure to asbestos or asbestos- containing products to the extent that a claimant is alleging or seeking to impose liability, directly or indirectly, for the conduct of, claims against or demands on PC by reason of PPG's: (i) ownership of a financial interest in PC; (ii) involvement in the management of PC, or service as an officer, director or employee of PC or a related party; (iii) provision of insurance to PC or a related party; or (iv) involvement in a financial transaction affecting the financial condition of PC or a related party. The foregoing PC related claims are referred to as "PC Relationship Claims" and constitute, in PPG management's opinion, the vast majority of the pending asbestos personal injury claims against PPG. All claims channeled to the Trust will be paid only from the assets of the Trust. The channeling injunction will not extend to any claim against PPG that arises out of exposure to any asbestos or asbestos-containing products manufactured, sold and/or distributed by PPG or its subsidiaries that is not a PC Relationship Claim, and in this respect differs from the channeling injunction contemplated by the second amended PC plan of reorganization filed in 2003. While management believes that the vast majority of the approximately 114,000 claims against PPG alleging personal injury from exposure to asbestos relate to products manufactured, distributed or sold by PC, the potential liability for any non-PC Relationship Claims will be retained by PPG. Because a determination of whether an asbestos claim is a non-PC Relationship Claim would typically not be known until shortly before trial and because the filing and prosecution of asbestos claims (other than certain premises claims) against PPG has been enjoined since April 2000, the actual number of non-PC Relationship Claims that may be pending at the expiration of the stay or the number of additional claims that may be filed against PPG in the future cannot be determined at this time. PPG intends to defend against all such claims vigorously and their ultimate resolution in the court system is expected to occur over a period of years. In addition, similar to what was contemplated by the second amended PC plan of reorganization, the channeling injunction will not extend to claims against PPG alleging personal injury caused by asbestos on premises owned, leased or occupied by PPG (so called "premises claims"), which generally have been subject to the stay imposed by the Bankruptcy Court, although motions to lift the stay as to individual premises claims have been granted from time to time. Historically, a small proportion of the claims against PPG and its subsidiaries have been premises claims, and based upon review and analysis, PPG believes that the number of premises claims currently comprises less than 2 percent of the total asbestos related claims against PPG. Beginning in late 2006, the Bankruptcy Court lifted the stay with respect to certain premises claims against PPG. As a result, PPG and its primary insurers have settled approximately 500 premises claims. PPG's insurers agreed to provide insurance coverage for a major portion of the payments made in connection with the settled claims, and PPG accrued the portion of the settlement amounts not covered by insurance. PPG, in conjunction with its primary insurers as appropriate, evaluates the factual, medical, and other relevant information pertaining to additional claims as they are being considered for potential settlement or litigated in the tort system. The number of such claims under consideration for potential settlement or subject to litigation, currently approximately 360, varies from time to time. PPG believes that any financial exposure resulting from such premises claims, taking into account available insurance coverage, will not have a material adverse effect on PPG's consolidated financial position, liquidity or results of operations. PPG has no obligation to pay any amounts under the third amended PC plan of reorganization, as amended, until the Funding Effective Date. On the Funding Effective Date, PPG will relinquish any claim to its equity interest in PC, convey the stock it owns in Pittsburgh Corning Europe and transfer 1,388,889 shares of PPG's common stock or cash equal to the fair value of such shares as defined in the 2009 PPG Settlement Arrangement. PPG will make aggregate cash payments to the Trust of approximately $825 million, payable according to a fixed payment schedule over a period ending in 2023. The first payment is due on the Funding Effective Date. PPG would have the right, in its sole discretion, to prepay these cash payments to the Trust at any time at a discount rate of 5.5% per annum as of the prepayment date. PPG's historical insurance carriers participating in the third amended PC plan of reorganization will also make cash payments to the Trust of approximately $1.7 billion between the Funding Effective Date and 2027. These payments could also be prepaid to the Trust at any time at a discount rate of 5.5% per annum as of the prepayment date. PPG will grant asbestos releases and indemnifications to all participating insurers, subject to amended coverage-in-place arrangements with certain insurers for remaining coverage of premises claims. PPG will grant certain participating insurers full policy releases on primary policies and full product liability releases on excess coverage policies. PPG will also grant certain other participating excess insurers credit against their product liability coverage limits. PPG's obligation under the 2009 PPG Settlement Arrangement at December 31, 2008 was $162 million less than the amount that would have been due under the 2002 PPG Settlement Arrangement. This reduction is attributable to a number of negotiated provisions in the 2009 PPG Settlement Arrangement, including the provisions relating to the channeling injunction under which PPG retains liability for any non-PC Relationship Claims. PPG will retain such amount as a reserve for asbestos-related claims that will not be channeled to the Trust, as this amount represents PPG's best estimate of its liability for these claims. PPG does not have sufficient current claim information or settlement history on which to base a better estimate of this liability, in light of the fact that the Bankruptcy Court's stay has been in effect since 2000. As a result, PPG's reserve at September 30, 2013 and December 31, 2012 for asbestos-related claims that will not be channeled to the Trust is $162 million. This amount is included within "Other liabilities" on the accompanying consolidated balance sheets. In addition, under the 2009 PPG Settlement Arrangement, PPG will retain for its own account rights to recover proceeds from certain historical insurance assets, including policies issued by non-participating insurers. Rights to recover these proceeds would have been assigned to the Trust by PPG under the 2002 PPG Settlement Arrangement. Following the effective date of the third amended PC plan of reorganization, as amended, and the lifting of the Bankruptcy Court stay, PPG will monitor the activity associated with asbestos claims which are not channeled to the Trust pursuant to the third amended PC plan of reorganization, and evaluate its estimated liability for such claims and related insurance assets then available to the Company as well as underlying assumptions on a periodic basis to determine whether any adjustment to its reserve for these claims is required. Of the total obligation of $974 million under the 2009 PPG Settlement Arrangement at September 30, 2013, $732 million is reported as a current liability and the present value of the payments due in the years 2014 to 2023 totaling $242 million is reported as a non-current liability in the accompanying condensed consolidated balance sheet. The future accretion of the noncurrent portion of the liability will total $98 million and be reported as expense in the condensed consolidated statement of income over the period through 2023. The fair value of the equity forward instrument is included as an "Other current asset" as of September 30, 2013 and December 31, 2012 in the accompanying condensed consolidated balance sheet. Payments under the fixed payment schedule require annual payments that are due each June. The current portion of the asbestos settlement liability included in the accompanying condensed consolidated balance sheet as of September 30, 2013 consists of all such payments required through June 2013, the fair value of PPG's common stock and the value of PPG's investment in Pittsburgh Corning Europe. The net present value of the remaining payments due is included in the long-term asbestos settlement liability in the accompanying condensed consolidated balance sheet as of September 30, 2013. If the 2009 PPG Settlement Arrangement is not implemented, for any reason, and the Bankruptcy Court stay expires, PPG intends to defend vigorously the pending and any future asbestos claims, including PC Relationship Claims, asserted against it and its subsidiaries. PPG continues to assert that it is not responsible for any injuries caused by PC products, which it believes account for the vast majority of the pending claims against PPG. Prior to 2000, PPG had never been found liable for any PC-related claims. In numerous cases, PPG was dismissed on motions prior to trial, and in others PPG was released as part of settlements by PC. PPG was found not responsible for PC-related claims at trial in two cases. In January 2000, one jury found PPG, for the first time, partly responsible for injuries to five plaintiffs alleged to be caused by PC products. The plaintiffs holding the judgment on that verdict moved to lift the injunction as applied to their claims. Before the hearing on that motion, PPG entered into a settlement with those claimants in the second quarter of 2010 to avoid the costs and risks associated with the possible lifting of the stay and appeal of the adverse 2000 verdict. The settlement resolved both the motion to lift the injunction and the judgment against PPG. The cost of this settlement was not significant to PPG's results of operations for the second quarter of 2010 and was fully offset by prior insurance recoveries. Although PPG has successfully defended asbestos claims brought against it in the past, in view of the number of claims, and the significant verdicts that other companies have experienced in asbestos litigation, the result of any future litigation of such claims is inherently unpredictable. A full-text copy of the Company's regulatory filing is available at http://is.gd/taE5YB PPG Industries, Inc. (PPG) is a global supplier of protective and decorative coatings. PPG operates in six business segments. The Performance Coatings, Industrial Coatings and Architectural Coatings-EMEA segments supply protective and decorative finishes for customers in a range of end use markets, including industrial equipment, appliances and packaging; factory-finished aluminum extrusions and steel and aluminum coils; marine and aircraft equipment; automotive original equipment; and other industrial and consumer products. The Optical and Specialty Materials segment consist of the optical products and silicas businesses. It is a producer and supplier of basic chemicals. Glass segment produces flat glass and continuous-strand fiber glass. The Glass business segment consists of the flat glass and fiber glass businesses. In January 2013, the combined company formed by uniting Georgia Gulf with PPG's former commodity chemicals business is named Axiall Corporation. ASBESTOS UPDATE: Union Carbide Has $555-Million Claims Liability ---------------------------------------------------------------- Union Carbide Corporation's asbestos-related liability for pending and future claims was $555 million, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. The Corporation is and has been involved in a large number of asbestos-related suits filed primarily in state courts during the past three decades. These suits principally allege personal injury resulting from exposure to asbestos-containing products and frequently seek both actual and punitive damages. The alleged claims primarily relate to products that UCC sold in the past, alleged exposure to asbestos-containing products located on UCC's premises and UCC's responsibility for asbestos suits filed against a former UCC subsidiary, Amchem Products, Inc. ("Amchem"). In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable loss as a result of such exposure, or that injuries incurred in fact resulted from exposure to the Corporation's products. The Corporation expects more asbestos-related suits to be filed against UCC and Amchem in the future, and will aggressively defend or reasonably resolve, as appropriate, both pending and future claims. Based on a study completed by Analysis, Research & Planning Corporation ("ARPC") in January 2003, the Corporation increased its December 31, 2002 asbestos-related liability for pending and future claims for the 15-year period ending in 2017 to $2.2 billion, excluding future defense and processing costs. Since then, the Corporation has compared current asbestos claim and resolution activity to the results of the most recent ARPC study at each balance sheet date to determine whether the accrual continues to be appropriate. In addition, the Corporation has requested ARPC to review the Corporation's historical asbestos claim and resolution activity each year to determine the appropriateness of updating the most recent ARPC study. In November 2011, the Corporation requested ARPC to review the Corporation's 2011 asbestos claim and resolution activity and determine the appropriateness of updating its then most recent study completed in December 2010. In response to that request, ARPC reviewed and analyzed data through October 31, 2011. In January 2012, ARPC stated that an update of its study would not provide a more likely estimate of future events than the estimate reflected in its December 2010 study and, therefore, the estimate in that study remained applicable. Based on the Corporation's own review of the asbestos claim and resolution activity and ARPC's response, the Corporation determined that no change to the accrual was required. At December 31, 2011, the Corporation's asbestos- related liability for pending and future claims was $668 million. In October 2012, the Corporation requested ARPC to review the Corporation's historical asbestos claim and resolution activity and determine the appropriateness of updating its December 2010 study. In response to that request, ARPC reviewed and analyzed data through September 30, 2012. In December 2012, based upon ARPC's December 2012 study and the Corporation's own review of the asbestos claim and resolution activity for 2012, it was determined that no adjustment to the accrual was required at December 31, 2012. The Corporation's asbestos-related liability for pending and future claims was $602 million at December 31, 2012. At December 31, 2012, approximately 18 percent of the recorded liability related to pending claims and approximately 82 percent related to future claims. Based on the Corporation's review of 2013 activity, it was determined that no adjustment to the accrual was required at September 30, 2013. The Corporation's asbestos-related liability for pending and future claims was $555 million at September 30, 2013. Approximately 19 percent of the recorded liability related to pending claims and approximately 81 percent related to future claims. At December 31, 2002, the Corporation increased the receivable for insurance recoveries related to its asbestos liability to $1.35 billion, substantially exhausting its asbestos product liability coverage. The insurance receivable related to the asbestos liability was determined by the Corporation after a thorough review of applicable insurance policies and the 1985 Wellington Agreement, to which the Corporation and many of its liability insurers are signatory parties, as well as other insurance settlements, with due consideration given to applicable deductibles, retentions and policy limits, and taking into account the solvency and historical payment experience of various insurance carriers. The Wellington Agreement and other agreements with insurers are designed to facilitate an orderly resolution and collection of the Corporation's insurance policies and to resolve issues that the insurance carriers may raise. Because of uncertainties, the Corporation's management cannot estimate the full range of the cost of resolving pending and future asbestos-related claims facing UCC and Amchem. The Corporation's management believes that it is reasonably possible that the cost of disposing of the Corporation's asbestos-related claims, including future defense costs, could have a material impact on the Corporation's results of operations and cash flows for a particular period and on the consolidated financial position of the Corporation. Union Carbide Corporation makes the legos of the chemicals world. The company, a subsidiary of Dow Chemical, turns out building- block chemicals such as ethylene and propylene, which are converted into widely used plastics resins, primarily polyethylene. The chemical company is also a leading producer of ethylene oxide and ethylene glycol used to make polyester fibers and antifreeze, respectively. Union Carbide makes solvents and intermediates (such as oxo aldehydes and esters), vinyl acetate monomer, water-soluble polymers, and polyolefin-based compounds. ASBESTOS UPDATE: Union Carbide Insurance Suit Remains Pending ------------------------------------------------------------- Union Carbide Corporation's insurance coverage lawsuit remains pending in a New York state court, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. In September 2003, the Corporation filed a comprehensive insurance coverage case, now proceeding in the Supreme Court of the State of New York, County of New York, seeking to confirm its rights to insurance for various asbestos claims and to facilitate an orderly and timely collection of insurance proceeds (the "Insurance Litigation"). The Insurance Litigation was filed against insurers that were not signatories to the Wellington Agreement and/or do not otherwise have agreements in place with the Corporation regarding their asbestos-related insurance coverage, in order to facilitate an orderly resolution and collection of such insurance policies and to resolve issues that the insurance carriers may raise. Since the filing of the case, the Corporation has reached settlements with most of the carriers involved in the Insurance Litigation and continues to pursue settlements with outstanding carriers. The Corporation's receivable for insurance recoveries related to its asbestos liability was $25 million at September 30, 2013 and $25 million at December 31, 2012. At September 30, 2013 and December 31, 2012, all of the receivable for insurance recoveries was related to insurers that are not signatories to the Wellington Agreement and/or do not otherwise have agreements in place regarding their asbestos-related insurance coverage. In addition to the receivable for insurance recoveries related to its asbestos liability, the Corporation had receivables for defense and resolution costs submitted to insurance carriers that have settlement agreements in place regarding their asbestos- related insurance coverage. The Corporation's receivables related to its asbestos-related liability as of September 30, 2013, was $165 million. The Corporation expenses defense costs as incurred. The pretax impact for defense and resolution costs, net of insurance, was $26 million for the third quarter of 2013 ($25 million in the third quarter of 2012), $77 million for the first nine months of 2013 ($73 million for the first nine months of 2012) and was included in "Cost of sales" in the consolidated statements of income. After a review of its insurance policies, with due consideration given to applicable deductibles, retentions and policy limits, and after taking into account the solvency and historical payment experience of various insurance carriers; existing insurance settlements; and the advice of outside counsel with respect to the applicable insurance coverage law relating to the terms and conditions of its insurance policies, the Corporation continues to believe that its recorded receivable for insurance recoveries from all insurance carriers is probable of collection. The amounts recorded by the Corporation for the asbestos-related liability and related insurance receivable were based upon current, known facts. However, future events, such as the number of new claims to be filed and/or received each year, the average cost of disposing of each such claim, coverage issues among insurers and the continuing solvency of various insurance companies, as well as the numerous uncertainties surrounding asbestos litigation in the United States, could cause the actual costs and insurance recoveries for the Corporation to be higher or lower than those projected or those recorded. While it is not possible at this time to determine with certainty the ultimate outcome of any of the legal proceedings and claims, management believes that adequate provisions have been made for probable losses with respect to pending claims and proceedings, and that, except for the asbestos-related matters, the ultimate outcome of all known and future claims, after provisions for insurance, will not have a material adverse impact on the results of operations, cash flows and financial position of the Corporation. Should any losses be sustained in connection with any of such legal proceedings and claims in excess of provisions provided and available insurance, they will be charged to income when determinable. Union Carbide Corporation makes the legos of the chemicals world. The company, a subsidiary of Dow Chemical, turns out building- block chemicals such as ethylene and propylene, which are converted into widely used plastics resins, primarily polyethylene. The chemical company is also a leading producer of ethylene oxide and ethylene glycol used to make polyester fibers and antifreeze, respectively. Union Carbide makes solvents and intermediates (such as oxo aldehydes and esters), vinyl acetate monomer, water-soluble polymers, and polyolefin-based compounds. ASBESTOS UPDATE: Goodyear Tire Has 74,000 PI Claims Pending ----------------------------------------------------------- There were 74,000 asbestos-related personal injury claims pending against Goodyear Tire & Rubber Company, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. The Company states: "We are a defendant in numerous lawsuits alleging various asbestos-related personal injuries purported to result from alleged exposure to asbestos in certain products manufactured by us or present in certain of our facilities. Typically, these lawsuits have been brought against multiple defendants in state and Federal courts. To date, we have disposed of approximately 106,900 claims by defending and obtaining the dismissal thereof or by entering into a settlement. The sum of our accrued asbestos-related liability and gross payments to date, including legal costs, by us and our insurers totaled approximately $424 million through September 30, 2013 and $407 million through December 31, 2012. For the nine-months ended September 30, 2013, there were 74,000 pending claims and the Company paid $15 million on asbestos litigation defense and claim resolution. Because claims are often filed and disposed of by dismissal or settlement in large numbers, the amount and timing of settlements and the number of open claims during a particular period can fluctuate significantly. We periodically, and at least annually, review our existing reserves for pending claims, including a reasonable estimate of the liability associated with unasserted asbestos claims, and estimate our receivables from probable insurance recoveries. We had recorded gross liabilities for both asserted and unasserted claims, inclusive of defense costs, totaling $141 million and $139 million at September 30, 2013 and December 31, 2012, respectively. We recorded a receivable related to asbestos claims of $75 million and $73 million as of September 30, 2013 and December 31, 2012, respectively. We expect that approximately 50% of asbestos claim related losses will be recoverable through insurance during the ten-year period covered by the estimated liability. Of these amounts, $11 million and $10 million were included in Current Assets as part of Accounts Receivable at September 30, 2013 and December 31, 2012, respectively. The recorded receivable consists of an amount we expect to collect under coverage-in-place agreements with certain primary carriers as well as an amount we believe is probable of recovery from certain of our excess coverage insurance carriers. We believe that, at September 30, 2013, we had approximately $160 million in limits of excess level policies potentially applicable to indemnity and defense costs for asbestos products claims. We also had coverage under certain primary policies for indemnity and defense costs for asbestos products claims under remaining aggregate limits, as well as coverage for indemnity and defense costs for asbestos premises claims on a per occurrence basis pursuant to a coverage-in-place agreement. With respect to both asserted and unasserted claims, it is reasonably possible that we may incur a material amount of cost in excess of the current reserve; however, such amounts cannot be reasonably estimated. Coverage under insurance policies is subject to varying characteristics of asbestos claims including, but not limited to, the type of claim (premise vs. product exposure), alleged date of first exposure to our products or premises and disease alleged. Depending upon the nature of these characteristics, as well as the resolution of certain legal issues, some portion of the insurance may not be accessible by us." The Goodyear Tire & Rubber Company is a manufacturer of tires. The Company, together with subsidiaries and joint ventures, develops, manufactures, markets and distributes tires for a range of applications. The Company also manufactures and markets rubber- related chemicals for various applications. The Company is an operator of commercial truck service and tire retreading centers. During the year ended December 31, 2011, the Company operated approximately 1,400 tire and auto service center outlets where it offered its products for retail sale and provided automotive repair and other services. The Company manufactures its products in 53 manufacturing facilities in 22 countries, including the United States. It operates through four operating segments representing its regional tire businesses: North American Tire; Europe, Middle East and Africa Tire (EMEA); Latin American Tire, and Asia Pacific Tire. ASBESTOS UPDATE: Corning Records $5MM Charge for Fibro Liability ---------------------------------------------------------------- Corning recorded a charge of $5 million to adjust the asbestos liability for the change in value of components of the Amended Pittsburgh Corning Corporation Plan in the three months ended September 30, 2013, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the same quarterly period. The Company and PPG Industries, Inc. each own 50% of the capital stock of Pittsburgh Corning Corporation. Over a period of more than two decades, PCC and several other defendants have been named in numerous lawsuits involving claims alleging personal injury from exposure to asbestos. On April 16, 2000, PCC filed for Chapter 11 reorganization in the U.S. Bankruptcy Court for the Western District of Pennsylvania. Corning, with other relevant parties, has been involved in ongoing efforts to develop a Plan of Reorganization that would resolve the concerns and objections of the relevant parties. A proposed PCC plan of reorganization (Amended PCC Plan) filed in the U.S. Bankruptcy Court for the Western District of Pennsylvania was confirmed by a final order in May 2013; however, a motion for reconsideration has been filed. Corning also has an equity interest in Pittsburgh Corning Europe N.V. (PCE), a Belgian corporation, that is a component of the Company's proposed resolution of the PCC asbestos litigation. At September 30, 2013 and December 31, 2012, the fair value of PCE exceeded its carrying value of $160 million and $149 million, respectively. The Amended PCC Plan does not include certain other non-PCC asbestos claims that may be or have been raised against Corning. Corning has recorded in its estimated asbestos litigation liability an additional $150 million for the approximately 9,800 current non-PCC cases alleging injuries from asbestos, and for any future non-PCC cases. The liability for the Amended PCC Plan and the non-PCC asbestos claims was estimated to be $684 million at September 30, 2013, compared with an estimate of the liability of $671 million at December 31, 2012. In the three and nine months ended September 30, 2013, Corning recorded asbestos litigation expense of $5 million and $13 million, respectively. In the three and nine months ended September 30, 2012, Corning recorded asbestos litigation expense of $3 million and $9 million, respectively. The entire obligation is classified as a non-current liability as installment payments for the cash portion of the obligation are not planned to commence until more than 12 months after the Amended PCC Plan becomes effective and the PCE portion of the obligation will be fulfilled through the direct contribution of Corning's investment in PCE (currently recorded as a non-current other equity method investment). On May 16, 2013, the Bankruptcy Court issued an opinion and order confirming, on an interim basis, the Amended PCC Plan. On May 23, 2013, the Bankruptcy Court held a hearing to review motions for reconsideration of its interim order and, on May 24, 2013, it issued a revised opinion and final order confirming the Amended PCC Plan. On June 6, 2013, one party filed a motion for reconsideration of that final order which was scheduled for hearing on September 9, 2013. A different party, on June 7, 2013, filed a notice of an appeal of that final order to the U.S. District Court for the Western District of Pennsylvania, and this appeal has been stayed pending resolution of the other party's motion for reconsideration. On July 23, 2013, the Bankruptcy Court issued an order deeming that appeal a nullity and indicating that interested parties shall have the right to file a notice of appeal within 14 days after the Court's decision on the pending motion for reconsideration. By an order dated September 25, 2013, the Bankruptcy Court directed the parties to provide further information about a point on which the Court requires clarification before it can render a decision on the motion for reconsideration. The parties filed the requested information on October 9, 2013. In the three and nine months ended September 30, 2013, Corning recorded a charge of $5 million and $13 million, respectively, to adjust the asbestos liability for the change in value of components of the Amended PCC Plan. In the three and nine month ended September 30, 2012, Corning recorded a charge of $3 million and $9 million, respectively, to adjust the asbestos liability for the change in value of components of the Amended PCC Plan. Corning Incorporated (Corning) is a global, technology-based corporation. The Company operates in five segments: Display Technologies, Telecommunications, Environmental Technologies, Specialty Materials and Life Sciences. During the year ended December 31, 2011, Corning launched Corning Lotus Glass, an environmentally friendly, display glass developed to enable technologies, including organic light-emitting diode (OLED) displays and next generation liquid crystal displays (LCD). Corning Lotus Glass helps support the demanding manufacturing processes of both OLED and liquid crystal displays for portable devices, such as smart phones, tablets, and notebook computers. In March 2011, the Company acquired all outstanding shares from the shareholders of MobileAccess. In December 2011, it acquired Mediatech, Inc. In November 2012, Corning acquired the majority of the Discovery Labware business from Becton, Dickinson and Company. In May 2013, the Company acquired Bargoa SA. ASBESTOS UPDATE: ITT Corp. Records $736.8MM in Claims Liability --------------------------------------------------------------- ITT Corporation's estimated net asbestos exposure for the resolution of all pending claims and claims estimated to be filed in the next 10 years was $736.8 million, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. ITT, including its subsidiary Goulds Pumps, Inc., has been joined as a defendant with numerous other companies in product liability lawsuits alleging personal injury due to asbestos exposure. These claims allege that certain of our products sold prior to 1985 contained a part manufactured by a third party, which contained asbestos. To the extent these third-party parts may have contained asbestos, it was encapsulated in the gasket (or other) material and was non-friable. Frequently, the plaintiffs are unable to identify any ITT or Goulds Pump product as a source of asbestos exposure. In addition, a large majority of claims pending against the Company have been placed on inactive dockets because the plaintiff cannot demonstrate a significant compensable loss. The Company states: "Our experience to date is that a substantial portion of resolved claims have been dismissed without payment by the Company. "We record a liability for pending asbestos claims and asbestos claims estimated to be filed over the next 10 years. While it is probable that we will incur additional costs for future claims to be filed against the Company, a liability for potential future claims beyond the next 10 years is not reasonably estimable due to a number of factors. As of September 30, 2013, we have recorded an undiscounted asbestos-related liability for pending claims and unasserted claims estimated to be filed over the next 10 years of $1.26 billion, including expected legal fees, and an associated asset of $533.1 million which represents estimated recoveries from insurers, resulting in a net asbestos exposure of $736.8 million." A full-text copy of the Company's regulatory filing is available at http://is.gd/dbwswi ITT Corporation is a diversified manufacturer of engineered critical components and customized technology solutions for industrial markets. The Company manufactures components that are integral to the operation of systems and manufacturing processes in the energy, transportation and industrial markets. Its products provide enabling functionality for applications where reliability and performance are critically important to its customers and the users of their products. Its product and service offerings are organized in four segments: Industrial Process, Motion Technologies, Interconnect Solutions (ICS), and Control Technologies. In November 2012, the Company sold its shape cutting product lines, including the Burny and Kaliburn brands, to Lincoln Electric Holdings, Inc. In November 2012, the Company sold its shape cutting product lines, including the Burny and Kaliburn brands, to Lincoln Electric Holdings, Inc. in 2012, the Company acquired Bornemann. ASBESTOS UPDATE: ITT Corp. Had 59,000 Pending Claims at Sept. 30 ---------------------------------------------------------------- There were approximately 59,000 pending active asbestos-related claims against ITT Corporation, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. ITT, including its subsidiary Goulds Pumps, Inc., has been joined as a defendant with numerous other companies in product liability lawsuits alleging personal injury due to asbestos exposure. These claims generally allege that certain products sold by us or our subsidiaries prior to 1985 contained a part manufactured by a third party (e.g., a gasket) which contained asbestos. To the extent these third-party parts may have contained asbestos, it was encapsulated in the gasket (or other) material and was non- friable. As of September 30, 2013, there were approximately 59 thousand pending active claims against ITT, including Goulds Pumps, filed in various state and federal courts alleging injury as a result of exposure to asbestos. Frequently, plaintiffs are unable to identify any ITT or Goulds Pumps product as a source of asbestos exposure. Our experience to date is that a majority of resolved claims are dismissed without any payment from the Company. Management believes that a large majority of the pending claims have little or no value. In addition, because claims are sometimes dismissed in large groups, the average cost per resolved claim can fluctuate significantly from period to period. The average cost per resolved claim for the nine months ended 2013 and 2012, including indemnity and defense costs, was $3 thousand and $6 thousand, respectively. ITT expects more asbestos-related suits will be filed in the future, and ITT will continue to aggressively defend or seek a reasonable resolution, as appropriate. ITT Corporation (ITT) is a diversified manufacturer of engineered critical components and customized technology solutions for industrial markets. The Company manufactures components that are integral to the operation of systems and manufacturing processes in the energy, transportation and industrial markets. Its products provide enabling functionality for applications where reliability and performance are critically important to its customers and the users of their products. Its product and service offerings are organized in four segments: Industrial Process, Motion Technologies, Interconnect Solutions (ICS), and Control Technologies. In November 2012, the Company sold its shape cutting product lines, including the Burny and Kaliburn brands, to Lincoln Electric Holdings, Inc. In November 2012, the Company sold its shape cutting product lines, including the Burny and Kaliburn brands, to Lincoln Electric Holdings, Inc. in 2012, the Company acquired Bornemann. ASBESTOS UPDATE: 3M Co. Continues to Defend Exposure Claims ----------------------------------------------------------- 3M Company continues to defend itself against asbestos-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. As of September 30, 2013, the Company is a named defendant, with multiple co-defendants, in numerous lawsuits in various courts that purport to represent approximately 2,180 individual claimants, compared to approximately 2,060 individual claimants with actions pending at December 31, 2012. The vast majority of the lawsuits and claims resolved by and currently pending against the Company allege use of some of the Company's mask and respirator products and seek damages from the Company and other defendants for alleged personal injury from workplace exposures to asbestos, silica, coal mine dust or other occupational dusts found in products manufactured by other defendants or generally in the workplace. A minority of the lawsuits and claims resolved by and currently pending against the Company generally allege personal injury from occupational exposure to asbestos from products previously manufactured by the Company, which are often unspecified, as well as products manufactured by other defendants, or occasionally at Company premises. The Company's current volume of new and pending matters is substantially lower than its historical experience. The Company expects that filing of claims by unimpaired claimants in the future will continue to be at much lower levels than in the past. Accordingly, the number of claims alleging more serious injuries, including mesothelioma and other malignancies, will represent a greater percentage of total claims than in the past. The Company has prevailed in all nine cases taken to trial, including seven of the eight cases tried to verdict (such trials occurred in 1999, 2000, 2001, 2003, 2004, and 2007), and an appellate reversal in 2005 of the 2001 jury verdict adverse to the Company. The ninth case, tried in 2009, was dismissed by the Court at the close of plaintiff's evidence, based on the Court's legal finding that the plaintiff had not presented sufficient evidence to support a jury verdict. The plaintiffs appealed, but in February 2012 the California Court of Appeals granted the plaintiff's voluntary dismissal of the appeal. The Company has demonstrated in these past trial proceedings that its respiratory protection products are effective as claimed when used in the intended manner and in the intended circumstances. Consequently the Company believes that claimants are unable to establish that their medical conditions, even if significant, are attributable to the Company's respiratory protection products. Nonetheless the Company's litigation experience indicates that claims of persons with malignant conditions are costlier to resolve than the claims of unimpaired persons, and it therefore believes the average cost of resolving pending and future claims on a per-claim basis will continue to be higher than it experienced in prior periods when the vast majority of claims were asserted by the unimpaired. As previously reported, the State of West Virginia, through its Attorney General, filed a complaint in 2003 against the Company and two other manufacturers of respiratory protection products in the Circuit Court of Lincoln County, West Virginia and amended its complaint in 2005. The amended complaint seeks substantial, but unspecified, compensatory damages primarily for reimbursement of the costs allegedly incurred by the State for worker's compensation and healthcare benefits provided to all workers with occupational pneumoconiosis and unspecified punitive damages. While the case has been inactive since the fourth quarter of 2007, the court held a case management conference in March 2011, but no further activity has occurred in the case since that conference. No liability has been recorded for this matter because the Company believes that liability is not probable and estimable at this time. In addition, the Company is not able to estimate a possible loss or range of loss given the minimal activity in this case and the fact that the complaint asserts claims against two other manufacturers where a defendant's share of liability may turn on the law of joint and several liability and by the amount of fault a jury allocates to each defendant if the case is ultimately tried. The Company estimates its respirator mask/asbestos liabilities, including the cost to resolve the claims and defense costs, by examining: (i) the Company's experience in resolving claims, (ii) apparent trends, (iii) the apparent quality of claims (e.g., whether the claim has been asserted on behalf of asymptomatic claimants), (iv) changes in the nature and mix of claims (e.g., the proportion of claims asserting usage of the Company's mask or respirator products and alleging exposure to each of asbestos, silica, coal or other occupational dusts, and claims pleading use of asbestos-containing products allegedly manufactured by the Company), (v) the number of current claims and a projection of the number of future asbestos and other claims that may be filed against the Company, (vi) the cost to resolve recently settled claims, and (vii) an estimate of the cost to resolve and defend against current and future claims. Developments may occur that could affect the Company's estimate of its liabilities. These developments include, but are not limited to, significant changes in (i) the number of future claims, (ii) the average cost of resolving claims, (iii) the legal costs of defending these claims and in maintaining trial readiness, (iv) changes in the mix and nature of claims received, (v) trial and appellate outcomes, (vi) changes in the law and procedure applicable to these claims, and (vii) the financial viability of other co-defendants and insurers. As a result of the Company's on-going review of its accruals and the greater cost of resolving claims of persons who claim more serious injuries, including mesothelioma and other malignancies, the Company increased its accruals in the first nine months of 2013 for respirator mask/asbestos liabilities by $37 million, $13 million of which occurred in the third quarter of 2013. In the first nine months of 2013, the Company made payments for fees and settlements of $33 million related to the respirator mask/asbestos litigation, $13 million of which occurred in the third quarter of 2013. As of September 30, 2013, the Company had accruals for respirator mask/asbestos liabilities of $130 million (excluding Aearo accruals). The Company cannot estimate the amount or range of amounts by which the liability may exceed the accrual the Company has established because of the (i) inherent difficulty in projecting the number of claims that have not yet been asserted, (ii) the complaints nearly always assert claims against multiple defendants where the damages alleged are typically not attributed to individual defendants so that a defendant's share of liability may turn on the law of joint and several liability, which can vary by state, (iii) the multiple factors that the Company considers in estimating its liabilities, and (iv) the several possible developments that may occur that could affect the Company's estimate of liabilities. As of September 30, 2013, the Company's receivable for insurance recoveries related to the respirator mask/asbestos litigation was $67 million. The Company estimates insurance receivables based on an analysis of its numerous policies, including their exclusions, pertinent case law interpreting comparable policies, its experience with similar claims, and assessment of the nature of each claim and remaining coverage, and records an amount it has concluded is likely to be recovered. Various factors could affect the timing and amount of recovery of this receivable, including (i) delays in or avoidance of payment by insurers; (ii) the extent to which insurers may become insolvent in the future, and (iii) the outcome of negotiations with insurers and legal proceedings with respect to respirator mask/asbestos liability insurance coverage. As previously reported, on January 5, 2007 the Company was served with a declaratory judgment action filed on behalf of two of its insurers (Continental Casualty and Continental Insurance Co. -- both part of the Continental Casualty Group) disclaiming coverage for respirator mask/asbestos claims. The action, in the District Court in Ramsey County, Minnesota, sought declaratory judgment regarding coverage provided by the policies and the allocation of covered costs among the policies issued by the various insurers. The action named, in addition to the Company, over 60 of the Company's insurers. The plaintiffs, Continental Casualty and Continental Insurance Co., as well as a significant number of the insurer defendants named in the amended complaint had been dismissed because of settlements they had reached with the Company regarding the matters at issue in the lawsuit. In July 2013, the Company reached agreements in principle with the remaining insurers in the lawsuit. The Company and those insurers have been in the process of preparing formal settlement agreements. After all of the settlement agreements have been executed, the Court will issue dismissal orders at which time this matter will be concluded. During the first nine months of 2013, the Company received payments of $20 million from settlements with insurers, $10 million of which occurred in the third quarter of 2013. The Company has unresolved coverage with claims-made carriers for respirator mask claims. Once the claims-made insurance coverage is resolved, the Company will have collected substantially all of its remaining insurance coverage for respirator mask claims. 3M Company (3M) is a diversified technology company with a presence in the industrial and transportation; health care; consumer and office; safety, security and protection services; display and graphics, and electro and communications businesses. 3M manages its operations in six business segments: Industrial and Transportation; Health Care; Consumer and Office; Safety, Security and Protection Services; Display and Graphics, and Electro and Communications. 3M products are sold through a number of distribution channels, including directly to users and through wholesalers, retailers, jobbers, distributors and dealers in a range of trades in a number of countries worldwide. In April 2012, it acquired CodeRyte Inc. In September 2012, it acquired the business of Federal Signal Technologies Group (FSTech) from Federal Signal Corporation. On November 28, 2012, the Company acquired Ceradyne, Inc. ASBESTOS UPDATE: 3M Co. Records $26-Mil. Aero Product Liability --------------------------------------------------------------- 3M Company, through its Aearo subsidiary, has recorded $26 million as the best estimate of the probable liabilities for product liabilities and defense costs related to current and future Aearo- related asbestos and silica-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2013. On April 1, 2008, a subsidiary of the Company purchased the stock of Aearo Holding Corp., the parent of Aearo Technologies. Aearo manufactured and sold various products, including personal protection equipment, such as eye, ear, head, face, fall and certain respiratory protection products. As of September 30, 2013, Aearo and/or other companies that previously owned and operated Aearo's respirator business (American Optical Corporation, Warner-Lambert LLC, AO Corp. and Cabot Corporation ("Cabot")) are named defendants, with multiple co-defendants, including the Company, in numerous lawsuits in various courts in which plaintiffs allege use of mask and respirator products and seek damages from Aearo and other defendants for alleged personal injury from workplace exposures to asbestos, silica-related, or other occupational dusts found in products manufactured by other defendants or generally in the workplace. As of September 30, 2013, the Company, through its Aearo subsidiary, has recorded $26 million as the best estimate of the probable liabilities for product liabilities and defense costs related to current and future Aearo-related asbestos and silica- related claims. Responsibility for legal costs, as well as for settlements and judgments, is currently shared in an informal arrangement among Aearo, Cabot, American Optical Corporation and a subsidiary of Warner Lambert and their insurers (the "Payor Group"). Liability is allocated among the parties based on the number of years each company sold respiratory products under the "AO Safety" brand and/or owned the AO Safety Division of American Optical Corporation and the alleged years of exposure of the individual plaintiff. Aearo's share of the contingent liability is further limited by an agreement entered into between Aearo and Cabot on July 11, 1995. This agreement provides that, so long as Aearo pays to Cabot a quarterly fee of $100,000, Cabot will retain responsibility and liability for, and indemnify Aearo against, any product liability claims involving exposure to asbestos, silica, or silica products for respirators sold prior to July 11, 1995. Because of the difficulty in determining how long a particular respirator remains in the stream of commerce after being sold, Aearo and Cabot have applied the agreement to claims arising out of the alleged use of respirators involving exposure to asbestos, silica or silica products prior to January 1, 1997. With these arrangements in place, Aearo's potential liability is limited to exposures alleged to have arisen from the use of respirators involving exposure to asbestos, silica, or silica products on or after January 1, 1997. To date, Aearo has elected to pay the quarterly fee. Aearo could potentially be exposed to additional claims for some part of the pre-July 11, 1995 period covered by its agreement with Cabot if Aearo elects to discontinue its participation in this arrangement, or if Cabot is no longer able to meet its obligations in these matters. In March 2012, Cabot CSC Corporation and Cabot Corporation filed a lawsuit against Aearo in the Superior Court of Suffolk County, Massachusetts seeking declaratory relief as to the scope of Cabot's indemnity obligations under the July 11, 1995 agreement, including whether Cabot has retained liability for coal workers' pneumoconiosis claims, and seeking damages for breach of contract. Developments may occur that could affect the estimate of Aearo's liabilities. These developments include, but are not limited to: (i) significant changes in the number of future claims, (ii) significant changes in the average cost of resolving claims, (iii) significant changes in the legal costs of defending these claims, (iv) significant changes in the mix and nature of claims received, (v) trial and appellate outcomes, (vi) significant changes in the law and procedure applicable to these claims, (vii) significant changes in the liability allocation among the co-defendants, (viii) the financial viability of members of the Payor Group including exhaustion of available coverage limits, and/or (ix) a determination that the interpretation of the contractual obligations on which Aearo has estimated its share of liability is inaccurate. The Company cannot determine the impact of these potential developments on its current estimate of Aearo's share of liability for these existing and future claims. If any of the developments were to occur, the actual amount of these liabilities for existing and future claims could be significantly larger than the amount accrued. Because of the inherent difficulty in projecting the number of claims that have not yet been asserted, the complexity of allocating responsibility for future claims among the Payor Group, and the several possible developments that may occur that could affect the estimate of Aearo's liabilities, the Company cannot estimate the amount or range of amounts by which Aearo's liability may exceed the accrual the Company has established. 3M Company (3M) is a diversified technology company with a presence in the industrial and transportation; health care; consumer and office; safety, security and protection services; display and graphics, and electro and communications businesses. 3M manages its operations in six business segments: Industrial and Transportation; Health Care; Consumer and Office; Safety, Security and Protection Services; Display and Graphics, and Electro and Communications. 3M products are sold through a number of distribution channels, including directly to users and through wholesalers, retailers, jobbers, distributors and dealers in a range of trades in a number of countries worldwide. In April 2012, it acquired CodeRyte Inc. In September 2012, it acquired the business of Federal Signal Technologies Group (FSTech) from Federal Signal Corporation. On November 28, 2012, the Company acquired Ceradyne, Inc. ASBESTOS UPDATE: Ruling v. Titan in Improper Handling Suit Upheld ----------------------------------------------------------------- Titan Wrecking & Environmental, LLC, appeals from a trial court's judgment entry denying its post-trial motions for sanctions and attorney fees. Titan advances two assignments of error on appeal. First, it contends the trial court erred in denying its motion for frivolous-conduct sanctions. Second, it claims the trial court erred in denying its motion for attorney fees. The present appeal stems from a 2008 lawsuit filed by the State of Ohio against Titan. The State alleged that Titan had improperly handled "regulated asbestos-containing material" when removing vinyl floor tile from an elementary school. The case proceeded to a bench trial where the tile was shown to contain more than one- percent asbestos and the quantity of tile involved was shown to exceed the minimum regulated amount. The trial court nevertheless entered judgment in favor of Titan, holding that the State had failed to prove the existence of RACM for two reasons: (1) the evidence did not establish that the tile had been rendered friable, and (2) the evidence did not establish that the tile had been subjected to grinding. In light of these findings, the trial court did not address Titan's additional argument that the State had failed to use the prescribed method of analysis to determine the tile's asbestos content. The Court of Appeals of Ohio, Second District, Montgomery County, affirmed the trial court's judgment and overruled Titan's assignment of error. The case is STATE OF OHIO, ex rel., NANCY H. ROGERS, Plaintiff- Appellee, v. TITAN WRECKING & ENVIRONMENTAL, LLC, Defendant- Appellant, APPELLATE NO. 25603 (Ohio App.). A full-text copy of the Decision dated Nov. 15, 2013, is available at http://is.gd/sOjOigfrom Leagle.com. MICHAEL DeWINE, Esq., WEDNESDAY M. SZOLLOSI, Esq., and SARAH BLOOM ANDERSON, Esq., Attorneys for Plaintiff-Appellee. RONALD J. KOZAR, Esq., Attorney for Defendant-Appellant. ASBESTOS UPDATE: Crane Co. Dismissed as Defendant in "Tobin" Suit ----------------------------------------------------------------- In an asbestos-related personal injury action, defendant Crane Co. moves for summary judgment dismissing the complaint and all cross- claims asserted against it on the ground that there is no evidence to show that plaintiff Donald Tobin was exposed to asbestos from Crane products. In a decision and order dated Nov. 13, 2013, Judge Sherry Klein Heitler of the Supreme Court, New York County, granted the motion, holding that there is nothing in the case to show that Crane's valves were installed in the Plaintiff's zone of exposure as opposed to other manufacturer's valves, or that the Crane valves contained asbestos. Without more, the Plaintiff's claims against Crane are at best speculative, Judge Heitler ruled. Accordingly, the action and any cross-claims against Crane Co. are severed and dismissed in their entirety. The case is DONALD TOBIN, Plaintiff, v. AERCO INTERNATIONAL, et al. Defendants, DOCKET NO. 190337/12, MOTION SEQ. 002 (N.Y. Sup.). A full-text copy of Judge Heitler's Decision is available at http://is.gd/TxX4oXfrom Leagle.com. ASBESTOS UPDATE: Mont. High Court Affirms Ruling in Eviction Suit ----------------------------------------------------------------- Pam Polejewski appeals from an order of the Nineteenth Judicial District Court, Lincoln County, in which the District Court concluded Pam did not have record title to the subject property and was properly removed from the property by the Lincoln County Sheriff. On appeal, Pam contends jurisdiction in justice court was improper. Pam argues that her due process rights were violated because the District Court failed to consider her counterclaims or motions. Pam maintains that she should have been allowed to argue that the Wises breached the contract, that she qualified for relief from forfeiture because there was asbestos on the property, and that she sustained damages after being exposed to asbestos for six years. The Supreme Court of Montana affirmed, holding, among other things, that the District Court correctly concluded it could not address Pam's arguments about asbestos, good faith, and damages for exposure to asbestos. The justice court, according to the Supreme Court, did not have jurisdiction over Pam's counterclaim but had jurisdiction over the action for unlawful detainer. On appeal, the District Court's review was limited to the eviction issue as that was the only issue over which the justice court had jurisdiction, the Supreme Court said. The case is HAROLD and MARY WISE, Plaintiffs and Appellees, v. PAM POLEJEWSKI, Defendant and Appellant, NO. DA 12-0752 (Mont.). A full-text copy of the Nov. 19, 2013, Decision delivered by Justice Patricia O. Cotter is available at http://is.gd/OFTks6from Leagle.com. Pamela Jo Polejewski, self-represented; Great Falls, Montana, for Appellant. L. Charles Evans, Esq., Attorney at Law; Libby, Montana, for Appellees. ASBESTOS UPDATE: In Camera Review Needed in "Sweredoski" Suit ------------------------------------------------------------- Crane Co. filed a Motion for Reconsideration of its earlier Motion to Compel, which the Superior Court of Rhode Island, Providence, SC, denied on July 15, 2013. Crane filed another motion, renewing its discovery request for information relating to claims submitted by Plaintiff Rosie K. Sweredoski to asbestos bankruptcy trusts on behalf of her late husband, Douglas A. Sweredoski. The Plaintiff objects to this motion. After reconsidering the parties' arguments, and in light of a new argument advanced by Crane on the motion, the Superior Court concluded that an in camera review of the requested documents is necessary to determine if they are properly discoverable. The case is ROSIE K. SWEREDOSKI, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DOUGLAS A. SWEREDOSKI, AND INDIVIDUALLY RECOGNIZED AS SURVIVING SPOUSE, v. ALFA LAVAL, INC., et al., C.A. NO. PC-2011- 1544 (R.I. Super.). A full-text copy of the Decision dated Nov. 18, 2013, is available at http://is.gd/T83XtOfrom Leagle.com. Robert J. Sweeney, Esq., for Plaintiff. David A. Goldman, Esq., Kendra A. Christensen, Esq., for Defendant. ASBESTOS UPDATE: W.Va. High Court Affirms "Toney" Ruling -------------------------------------------------------- Petitioner Bayer Corporation appeals the decision of the West Virginia Workers' Compensation Board of Review. The appeal arises from the Board of Review's Final Order dated January 25, 2012, in which the Board affirmed a July 22, 2011, Order of the Workers' Compensation Office of Judges. In its Order, the Office of Judges reversed the claims administrator's December 18, 2009, decision rejecting Luann Toney's claim for dependents' benefits. John Toney worked as a chemical operator for Bayer Corporation from November of 1986 until April 23, 2008. Ms. Toney alleges that Mr. Toney was exposed to occupational asbestos, and it caused malignant mesothelioma, which led to his death in July of 2009. Upon consideration of the standard of review, the briefs, and the record presented, the Supreme Court of Appeals of West Virginia, found no substantial question of law and no prejudicial error. The Supreme Court found that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. The Supreme Court, therefore, affirmed the decision of the Board of Review. The case is BAYER CORPORATION, Employer Below, Petitioner v. LUANN TONEY, WIDOW OF JOHN TONEY III (DECEASED), Claimant Below, Respondent, NO. 12-0243 (W. Va.). A full-text copy of the Court's memorandum decision, dated Nov. 18, 2013, is available at http://is.gd/2f29eWfrom Leagle.com. ASBESTOS UPDATE: Honeywell Appeal in "Lemberger" Suit Granted ------------------------------------------------------------- Colleen Lemberger filed a wrongful death action against multiple defendants seeking damages for the death of her husband who died of mesothelioma. Ms. Lemberger alleged that her husband's mesothelioma was caused by asbestos-containing automotive brakes from The Bendix Corporation, Honeywell International, Inc.'s predecessor. A jury concluded that the brakes were 25% responsible for Lemberger's death. Honeywell appeals from a judgment of the circuit court, entered upon the jury's verdict, but amended by the circuit court. Honeywell raises several challenges to the amended verdict but, ultimately, concluded that the circuit court should not have altered the jury's decision. The Court of Appeals of Wisconsin, District I, in an opinion dated Nov. 19, 2013, reversed the judgment appealed from and remanded the matter to the circuit court with directions to reinstate the original verdict. The Court of Appeals found that, "[h]ere, it is evident that in the context of both the verdict questions and the jury instructions, the jury believed itself charged with the task of determining the extent to which mesothelioma and/or lung cancer caused by smoking played a role in Lemberger's death. The jury, believing itself so charged, returned verdict answers expressing an internally consistent conclusion that Lemberger's smoking caused lung cancer and that the lung cancer was more responsible for his death than the mesothelioma. That conclusion is adequately supported by the evidence of Record." The Court of Appeals added, "[t]he trial court appears to believe that the jury was led astray by the verdict and instructions. However, if the trial court, upon receiving the verdict from the jury and previewing it, thought that the answers reflected confusion by the jury, it could have asked the jury to continue or reconsider its deliberations, or it could have ordered a new trial. See Westfall v. Kottke, 110 Wis.2d 86, 96-98, 328 N.W.2d 481, 487-488 (1983). It should not, however, have rewritten the jury's answers to follow clearer instructions that were not given or to answer clearer questions that were not asked." The case is COLLEEN LEMBERGER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF STEVEN LEMBERGER, PLAINTIFF- RESPONDENT, v. HONEYWELL INTERNATIONAL, INC., DEFENDANT-APPELLANT, ANCHOR PACKING COMPANY, BENDIX COMMERCIAL VEHICLE SYSTEMS, LLC, METROPOLITAN LIFE INSURANCE COMPANY, OWENS ILLINOIS, INC., WAHL REFRACTORIES, INC., PRICE VIKING, HENNES SERVICES, INC., ZIEN MECHANICAL CONTRACTORS, INC., DAWES RIGGING AND CRANE RENTAL, INC., LTG TECHNOLOGIES, INC., EMPLOYERS INSURANCE COMPANY OF WAUSAU, GENERAL PATTERN CO., INC., THE HOLMING CO., THE SCHOFIELD CORP., THIEM CORP., TRAVELER'S CASUALTY AND SURETY CO., WISCONSIN BRIDGE AND IRON CO. AND GENERAL MOTORS CORPORATION, DEFENDANTS, APPEAL NO. 2009AP1180 (Wis. App.). A full-text copy of the Decision is available at http://is.gd/SGpDFofrom Leagle.com. ASBESTOS UPDATE: NY Court Denies Stay Request in "Brown" Suit ------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, denied the request for stay and other relief filed in IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to BROWN, v. BELL & GOSSETT COMPANY - CONSOLIDATED EDISON CO. OF NEW YORK., MOTION NO. M-5675 (N.Y. App. Div.). A full-text copy of the decision is available at http://is.gd/ZX02Etfrom Leagle.com. ASBESTOS UPDATE: NY Court Grants Request in "Kestenbaum" Suit ------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, granted the Corporation Clarification filed in IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to KESTENBAUM, v. DUREZ, MOTION NO. M-5803 (N.Y. App. Div.). A full-text copy of the decision is available at http://is.gd/fdGyeVfrom Leagle.com. ASBESTOS UPDATE: Appeal in "Cook" Suit Partially Granted -------------------------------------------------------- Appellant, Chris Cook, executor of the estate of his father, Charles Cook, appeals an Ohio trial court's decision to administratively dismiss his complaint. In November 2007, the decedent, a former smoker, who smoked up to two packs per day for almost 30 years, was diagnosed with lung cancer. In June 2008, decedent passed away and an autopsy confirmed the lung cancer diagnosis. In addition, the autopsy uncovered large amounts of fibrosis with asbestos bodies, including severe interstitial fibrosis in the left ventricle. On September 30, 2009, Cook filed an asbestos-related complaint against several companies, including, but not limited to NL Industries, Inc., f.k.a. National Lead Company, Goodyear Tire & Rubber Company, Lockheed Martin Corporation, Ford Motor Company, Exxon Mobil Oil Company, Individually and as Successor to Mobil Oil Corporation, as well as "John Does and 1-100 Manufacturers, Sellers, or Installers of Asbestos-Containing Products". The complaint alleged injury to his father and subsequent death from workplace exposure to products containing asbestos. Having reviewed the record and pertinent law, a three-judge panel of the Court of Appeals of Ohio, Eighth District, Cuyahoga County, composed by Judges Patricia Ann Blackmon, Frank D. Celebrezze, and Eileen A. Gallagher, affirmed in part and reversed in part the ruling of the lower court. The case is CHRIS COOK, INDIVIDUALLY, AND AS EXECUTOR OF THE ESTATE OF DANIEL COOK, ET AL., PLAINTIFFS-APPELLANTS, v. NL INDUSTRIES, INC., ET AL., DEFENDANTS-APPELLEES, NOS. 98911 AND 99522 (Ohio App.). A full-text copy of the Nov. 13, 2013, Opinion penned by Judge Blackmon is available at http://is.gd/aYnuqNfrom Leagle.com. Chris Cook is represented by: Joshua P. Grunda, Esq. Jessica M. Bacon, Esq. Thomas W. Bevan, Esq. Patrick M. Walsh, Esq. BEVAN & ASSOCIATES, L.P.A., Inc. 6555 Dean Memorial Parkway Boston Heights, Ohio 44236 Timothy M. Fox, Esq. -- tfox@ulmer.com -- and Christine E. Watchorn, Esq. -- cwatchorn@ulmer.com -- at Ulmer & Berne, L.L.P., for NL Industries, Inc. William D. Bonezzi, Esq., and Kevin O. Kadlec, Esq., at Bonezzi Switzer Murphy Polito & Hupp Co., L.P.A., at 1300 East 9th Street, Suite 1950, in Cleveland, Ohio, for Donald McKay Smith, Inc. Bradley K. Shafer, Esq. -- bshafer@swartzcampbell.com -- at Swartz Campbell, at 1233 Main Street, Suite 1000, in Wheeling, West Virginia 26003, for Allied Glove. Daniel J. Michalec, Esq. -- dmichalec@gallaghersharp.com -- and Holly Olarczuk-Smith, Esq. -- holarczuk-smith@gallaghersharp.com -- at Gallagher Sharp, at Sixth Floor, Bulkley Building, 1501 Euclid Avenue, in Cleveland, Ohio, for Beazer East, Inc. John A. Kristan, Jr., Esq. -- jkristan@kjmsh.com -- and John A. Valenti, Esq. -- jvalenti@kjmsh.com -- at Kelley Jasons McGowan Spinelli Hanna & Reber, L.L.P., at 1220 W. 6th Street, Suite 305, in Cleveland, Ohio. W. Matthew Reber, Esq. -- mreber@kjmsh.com -- at Kelley Jasons McGowan Spinelli Hanna & Reber, L.L.P., at Two Liberty Place, Suite 1900, 50 South 16th Street, in Philadelphia, Pennsylvania, for Clark Industrial Insulation. Coleson R. Braham, Esq. -- braham@buckleyking.com -- Daniel P. Carter, Esq. -- carter@buckleyking.com -- and Jeffrey W. Ruple, Esq. -- ruple@buckleyking.com -- at Buckley King, L.P.A., at 1400 Fifth Third Center, 600 Superior Avenue, East, in Cleveland, Ohio, for Cleaver-Brooks, Inc. James N. Kline, Esq. -- jkline@ulmer.com -- Bruce P. Mandel, Esq. -- bmandel@ulmer.com -- Kurt S. Siegfried, Esq. -- ksiegfried@ulmer.com -- and Robert E. Zulandt, III, Esq. -- rzulandt@ulmer.com -- at Ulmer & Berne, L.L.P., for Edward R. Hart Company. Stephanie M. Chmiel, Esq. -- Stephanie.Chmiel@ThompsonHine.com -- and Jennifer M. Mountcastle, Esq. -- Jennifer.Mountcastle@ThompsonHine.com -- at Thompson Hine, L.L.P., at 41 S. High Street, Suite 1700, in Columbus, Ohio; Elizabeth B. Wright, Esq. -- Elizabeth.Wright@ThompsonHine.com -- at Thompson Hine, L.L.P., at 3900 Key Center, 127 Public Square, in Cleveland, Ohio; and Stephen T. Persia, Esq. -- spersia@ralaw.com -- and Brad A. Rimmel, Esq. -- brimmel@ralaw.com -- at Roetzel & Andress, L.P.A., at 222 South Main Street, in Akron, Ohio, for Ford Motor Company. Nicholas L. Evanchan, Esq., and Ralph J. Palmisano, Esq., at Evanchan & Palmisano, at 388 South Main Street, Suite 402, in Akron, Ohio 44311, for Foster Wheeler Corporation. Oldham Company, LLC, at 195 South Main Street, Suite 300, in Akron, Ohio 44308, for General Electric Company. Matthew M. Daiker, Esq. -- mmdaiker@vorys.com -- Perry W. Doran, II, Esq. -- pdoran@vorys.com -- and Richard D. Schuster, Esq. -- rdschuster@vorys.com -- at Vorys, Sater, Seymour, & Pease, at 52 East Gay Street, P.O. Box 1008, in Columbus, Ohio 43216-1008, for Goodyear Tire & Rubber Company. Steven G. Blackmer, Esq. -- sblackmer@willmanlaw.com -- at Willman & Silvaggio, L.L.P., at 5500 Corporate Drive, Suite 150, in Pittsburgh, Pennsylvania 15237, for Honeywell International, Inc. Laura Kingsley Hong, Esq. -- laura.hong@squiresanders.com -- at Squire Sanders (US), L.L.P., at 4900 Key Tower, 127 Public Square, in Cleveland, Ohio 44114, for Illinois Tool Works, Inc. Diane L. Feigi, Esq. -- dfeigi@bakerlaw.com -- Wade A. Mitchell, Esq. -- wmitchell@bakerlaw.com -- and Edward D. Papp, Esq. -- epapp@bakerlaw.com -- at Baker & Hostetler, L.L.P., at PNC Center, 1900 East 9th Street, Suite 3200, Cleveland, Ohio, for Kelsey- Hayes Company. Jennifer A. Riester, Esq. -- JRiester@westonhurd.com -- at Weston Hurd, L.L.P., at The Tower at Erieview, 1301 East Ninth Street, Suite 1900, Cleveland, Ohio 44114, for Morton International. Thomas R. Wolf, Esq. -- twolf@reminger.com -- at Reminger Co., L.P.A., at 101 Prospect Avenue, West, Suite 1400, Cleveland, Ohio 44115, for CL Zimmerman & Ohio Pipe & Supply Company. Kenneth F. Krawczak, Esq. -- kkrawczak@swartzcampbell.com -- and Michele L. Larissey, Esq. -- mlarissey@swartzcampbell.com -- at Swartz Campbell, L.L.C., at The Illuminating Building, 55 Public Square, Suite 1120, in Cleveland, Ohio 44113, for Okonite Company. Susan M. Audey, Esq. -- susan.audey@tuckerellis.com -- Christopher J. Caryl, Esq. -- christopher.caryl@tuckerellis.com -- and Jennifer Woloschyn, Esq. -- jennifer.woloschyn@tuckerellis.com -- at Tucker Ellis, L.L.P., at 950 Main Avenue, Suite 1100, in Cleveland, Ohio 44113, for Pneumo Abex, L.L.C. Michael D. Eagen, Esq. -- Michael.eagen@dinsmore.com -- at Dinsmore & Shohl, L.L.P., at 1900 Chemed Center, 255 East Fifth Street, in Cincinnati, Ohio 45202; Daniel L. Jones, Jr., Esq. -- at daniel.jones@dinsmore.com -- at Dinsmore & Shohl, L.L.P., at 255 East Fifth Street, Suite 1900, in Cincinnati, Ohio 45202, for Saint-Gobain Abrasives (f.k.a. Norton Company). ASBESTOS UPDATE: White House Rejects FACT Act --------------------------------------------- Andrea Drusch, writing for Politico, reported that President Barack Obama's administration came out against a key piece of asbestos legislation just days after headlining a fundraiser at the homes of two of the top asbestos litigators in the country. According to the report, in a swing through Texas, two of the country's top asbestos attorneys, Russell Budd and Peter Kraus, hosted fundraisers that brought in an expected $1 million-plus for the Democratic Senatorial Campaign Committee over the course of three hours at their Dallas-area homes. The White House put out a statement opposing a piece of legislation aimed at regulating asbestos bankruptcy trusts. Budd and Kraus both sit on the boards of several of these trusts. The White House and the Office of Management and Budget did not respond to a request for comment. The trusts allow companies with significant liabilities to secure protection for future claims, but often have advisory committees made up of people from the same law firms that represent the asbestos clients. The Furthering Asbestos Claim Transparency (FACT) Act -- backed by business interests such as the U.S. Chamber of Commerce -- would require the trusts to disclose additional information about the claims the pay to victims, in order prevent false or inflated claims. In a statement, the White House warned that the legislation would make publicly available the personal information of individuals who had filed asbestos-related injuries. Additionally, it said that asbestos fraud was a non-existent problem. "The legislation is based on the false assertion that there is endemic fraud in the asbestos trust system," the statement said. According to the Wall Street Journal, Budd was a chief negotiator in a national settlement with Halliburton that established the largest asbestos trust fund of its kind. He sat on the board of more than a dozen asbestos bankruptcy trusts at the end of 2011. Krauss, who has served on the American Bar Association's Commission on Asbestos litigation, held advisory positions at three. The fundraisers took place back to back during the president's trip to Texas to meet with supporters of his health care law. At Kraus's home, a pool report said the president addressed a crowd of 100 guests, each of whom had paid $15,000 to attend. Just over an hour later, he spoke at a dinner at Budd's home, where a pool report said 25 attended, paying around $32,000 per couple. The bill has been lobbied on extensively by the Chamber of Commerce and various insurance companies. The Chamber issued a letter to lawmakers in support of the legislation, stressing its importance to businesses and naming it a key vote in how it ranks its annual member scorecard. ASBESTOS UPDATE: Exposure Victims React to House Vote on H.R. 982 ----------------------------------------------------------------- Leaders of the Asbestos Cancer Victims Rights Campaign reacted strongly to the 221-199 vote to pass the FACT Act, H.R. 982, by the House of Representatives. Susan Vento, widow of Rep Bruce Vento (D-MN): "I'm deeply disappointed in the vote, but grateful to the Members of Congress who stood up for asbestos victims and their families in opposing legislation that hurts cancer victims. We will continue to oppose this legislation and ensure that it never becomes law." Judy Van Ness, widow of Naval Veteran Richard L. Van Ness, commented after the vote: "Congress today forced asbestos victims and their families to release private information that will put them at risk of identity theft. This delays and could deny badly needed compensation to victims and their families." ASBESTOS UPDATE: Drilling Mud Claims Are Distinct Fibro Claims -------------------------------------------------------------- Heidi Turner, writing for Lawyers and Settlements, reported that asbestos drilling mud lawsuits are similar to other asbestos claims because they all tend to allege that employees were exposed to asbestos without being properly warned of the risks and without being given adequate safety gear. Asbestos drilling mud lawsuits and other asbestos lawsuits also tend to involve claims about serious health problems linked to the asbestos exposure -- health problems such as asbestosis and mesothelioma. But as court documents from a lawsuit in 2003 show, asbestos drilling mud lawsuits are distinct from other asbestos claims. The court documents were filed In Re: Asbestos Litigation (case number 03-0895) and are a response to Union Carbide's Motion for Transfer of asbestos-exposure cases and consolidation of those claims. Essentially, Union Carbide wanted to consolidate the drilling mud claims with those of other asbestos lawsuits. According to the filings, at the time there were more than 1,100,000 oil and gas wells in Texas, and the 1,095 plaintiffs involved in the 166 mud drilling lawsuits drilled those wells from the 1960s up to 1965. It was during this time that they were allegedly exposed to asbestos. Union Carbide argued that the 166 asbestos lawsuits should be consolidated with other asbestos lawsuits, but the plaintiffs disagreed for a few reasons. First, in typical asbestos lawsuits, there can be dozens of defendants named, plaintiffs lawyers argued. Some lawsuits name up to 70 defendants who allegedly exposed workers or consumers to asbestos. In the asbestos drilling mud cases, there were only four defendants -- the manufacturers and suppliers of a specific product that was made of pure asbestos. Furthermore, typical asbestos lawsuits make a variety of claims including fraud, breach of warranty and conspiracy. The oilfield cases, however, claimed only product liability against the defendants. "Indeed, the vast majority of the discovery and legal issues ordinarily associated with 'traditional' asbestos cases are irrelevant to oilfield worker cases," the documents claimed. The asbestos the drilling mud workers were exposed to was made, packaged and shipped by Union Carbide to be used in drilling mud. The only similarity between the drilling mud claim and other lawsuits is simply that it involves asbestos, according to court documents. Workers who were exposed to asbestos in drilling mud were roughnecks, derrick hands, drillers, tool pushers and roustabouts. The asbestos was added to drilling mud to change the mud's viscosity. The mud huts in which the asbestos was mixed were frequently described as looking as if it was "snowing inside" due to the asbestos fibers. The plaintiffs alleged that when they went home after work they looked as though they were covered in flour. Union Carbide responded to the plaintiff's concerns by noting that consolidation of the lawsuits would be more convenient and efficient. In this instance, the judges ruled with Union Carbide, finding that there were significant commonalities regarding questions of fact, and granted the motion for multidistrict litigation. ASBESTOS UPDATE: Kansas Carpenter's Trial Into Second Week ---------------------------------------------------------- Heather Isringhausen Gvillo, writing for The Madison-St. Clair Record, reported that the Plaintiff's attorney Carson Menges told Madison County jurors that the amount of asbestos fibers contained in a can of Georgia Pacific joint compound used decades ago -- if laid end-to-end -- would stretch past the Red Planet. According to the report, the trial -- a rare occurrence in the nation's busiest asbestos court -- is playing out in Associate Judge Stephen Stobbs' court. Plaintiff James Reef of Kansas filed the lawsuit in December 2012 against dozens of companies that made, sold or distributed asbestos-containing products including Georgia Pacific, the only defendant to take the case to trial. Most of the hundreds of cases set for trial in any given year settle before jurors are given a chance to decide. Reef, 69, began carpentry in 1965 at the age of 19 and claims he spent 50 percent of his time working on drywall using Georgia Pacific's joint compound paste. Reef alleges the joint compound he used contained asbestos, which led to his mesothelioma, diagnosed in October 2012. Witness Anne Ksionzyk, a Georgia Pacific witness, took the stand and was first questioned by Menges. Ksionzyk, a Georgia Pacific employee since 1982, said she reviewed 12-15 boxes of Georgia Pacific asbestos documents collected from the early 1980s, verifying that Georgia Pacific made joint compound with asbestos beginning in 1965. She testified that a 3.2 pound can of ready mix compound contained roughly 1.2 pounds of asbestos. Menges calculated that one pound of asbestos would stretch 451 million miles if the fibers were placed end-to-end, a distance well past the planet Mars. Representing Georgia Pacific, attorney Jeff Hebrank of HeplerBroom questioned Ksionzyk following Menges. He had her verify her role with the company and why she was chosen to testify. She said she is involved in product certification with third party agencies to ensure Georgia Pacific products meet building requirements and said she worked specifically with joint compound for 20 years. From her extensive experience with joint compound, knowledge of records and familiarity, she was chosen to testify on the defendant's behalf. Because of her work in the labs, evaluating small batches of products, she is familiar with the Gypsum division of products, including the joint compound, she said. Hebrank showed the jury a letter Georgia Pacific Vice President Glen Wilson wrote to a company manager on May 7, 1970, asking him to initiate a program concerning the use of asbestos in joint compound. Wilson mentioned the possibilities of asbestos-related dangers and asked the manager to take the risk into consideration. Asbestos was a primary component in joint compound. "To replace that required an evaluation of materials they had not used before," Ksionzyk said. She confirmed that there had been no reports of carpenters working with dry wall getting sick and no other company created non- asbestos containing joint compounds at that time. She said no one indicated that asbestos was highly hazardous. Georgia Pacific began labeling its dry mix first, because the ready mix didn't require a label as long as the fibers were bound with a liquid. That changed, she said, when "we believe it was in our best interest to begin labeling" the joint compound before the defendant's competitors added warning labels. "We could find an asbestos reformulation before our competitors," Ksionzyk said. "That would certainly give us an edge for our consumers." Georgia Pacific ceased production of asbestos containing products in May 1977, more than a year before it was banned. Also on the stand was plaintiff witness Dr. Thomas Selders, an industrial hygienist from Austin, Texas. Selders created a report based on Reef's exposure to asbestos, taking complete exposure into account rather than singling out the joint compound. Selders addressed background exposure, fibers traveling on his clothing, joint compound, insulation and more. "Don't look for asbestos in one location," Selders said under questioning by Menges. "It was used in a variety of items." Selders said asbestos fibers can travel hundreds of meters, and when Reef wasn't directly involved in dry wall work, he was around those who were. He even addressed Reef's clothing as a carrier of asbestos, because it is "frequently" overlooked. "'You'd be dusty head to toe and all over your face,'" Selders recalled Reef saying about carrying those fibers with him back home and in his car. Hebrank followed Menges, questioning the specific articles and studies Selders used in his report. But Selders remained steadfast that the type and situation surrounding the asbestos exposure doesn't matter. Exposure to asbestos regardless of the situation is harmful. "Whether it's in a factory or somewhere else," Selders said, "asbestos is asbestos." Selders verified that he did not do the specific calculations to determine how much exposure Reef was subject to in his different projects. Hebrank introduced a 1975 study addressing dry walling that recommended removing asbestos from products immediately. He said that Georgia Pacific had already begun their removal program five years prior to the study. He also also brought up Chrysotile asbestos, a form of asbestos at the center of debate over whether it is actually carcinogenic. Selders agreed that such debates exist, but argued that studies have linked the two and it is just as likely to cause diseases as asbestos in general is unhealthy. When Hebrank observed that the articles relate to cencer resulting from products other than joint compound, Selders responded, "No, all of these articles relate to people getting cancer from asbestos." Menges briefly followed up pointing out that the key word is asbestos, regardless of the type. ASBESTOS UPDATE: AFL-CIO, Victims Blast GOP Bill ------------------------------------------------ Mark Gruenberg, writing for People's World, reported that the AFL- CIO, asbestos victims and their survivors are blasting the GOP-run House's latest venture into the legal thicket of asbestos-caused cancer and its victims, saying the legislation harms the victims and helps the companies that injured them. One survivor calls the measure "one-sided, unfair and unnecessary." But that didn't stop the GOP-run House Judiciary Committee from approving the legislation, HR982, earlier this year by a party- line vote, or the full House from voting on it on Nov. 13. It's the second pro-business asbestos bill that's come up in three years. The asbestos compensation issue has been dragging through the courts for years, as millions of workers -- or their survivors -- try to get compensation from firms that knowingly forced them to work with, and inhale, the cancer-causing substance. Asbestos inhalation is responsible for mesothelioma (a fatal cancer), asbestosis, lung cancer and several other diseases. The firms, led by still-bankrupt W.R. Grace, but also including shipyards, builders and others, have spent years lobbying against the victims, and sabotaging prospective settlements the federation worked on. HR982, the victims and the AFL-CIO say, would shortchange victims and survivors and expose victims' confidential medical data. That would subject the victims and survivors of asbestos-caused mesothelioma to "blacklisting and discrimination," says AFL-CIO Legislative Director Bill Samuel. "Decades of uncontrolled use of asbestos, even after its hazards were known, resulted in a legacy of disease and death," he wrote lawmakers. "Hundreds of thousands of workers and family members suffered or died of asbestos-related cancers and lung disease, and the toll continues. Each year an estimated 10,000 people are expected to die in the U.S. from asbestos-related diseases. Mesothelioma can hit the worker long after asbestos exposure. Susan Vento wrote lawmakers that her husband, the late Rep. Bruce Vento, D-Minn., was not diagnosed with the cancer until February 2000, decades after he worked as a construction laborer and breathed in the asbestos. Treatment failed. He died in October. His widow has spent her time since campaigning for justice for asbestos victims. HR982, she added, "would contradict" his work and hers. She called it "one-sided, unfair and unnecessary." "Asbestos victims have faced huge barriers and obstacles to receiving compensation for their diseases," Samuel added. "Major producers refused to accept responsibility and most declared bankruptcy in an attempt to limit their future liability. In 1994 Congress passed special legislation that allowed the asbestos companies to set up bankruptcy trusts to compensate asbestos victims and reorganize. But these trusts don't have adequate funding to provide just compensation, and the median payment across the trusts is only 25 percent of the claim's value. "We have spent years trying to seek solutions to make the asbestos compensation system fairer and more effective. HR982 does nothing to improve compensation for victims and would in fact make the situation even worse. The bill is simply an effort by asbestos manufacturers who still are subject to asbestos lawsuits to avoid liability for diseases caused by exposure to their products," Samuel stated. The victims and their survivors aren't happy with the GOP's bill, either, and said so during a GOP-run House Judiciary subcommittee hearing in March. "Mesothelioma is the worst kind of cancer you can get," Genevieve Bosilevac of Richmond, Va., wrote the lawmakers in one letter the Democrats read into the record. "What makes it so bad is that I shouldn't have it. I was diagnosed because someone else decided to use asbestos in their automotive products - gaskets, brakes and clutches." But she wasn't an autoworker, just a delivery worker of those products from her family's auto painting business to mechanics and body shops. "What we didn't know is that these products contained asbestos and could cause my cancer. Now these asbestos companies are asking you to pass a bill that will make it harder for people like me to get justice. Please don't let that happen." Committee Democrats, who unanimously opposed HR982, were similarly harsh. They called it "a thoroughly flawed bill that blatantly strengthens protections for the very entities that exposed millions of unsuspecting Americans to the toxic effects of asbestos," and that was among their milder statements. "The bill accomplishes this by giving asbestos defendants 'new rights and advantages to be used against asbestos victims in state court' and it would 'add new burdens' to asbestos bankruptcy trusts that would severely cripple 'their ability to operate and pay claims.' Although the proponents assert that it is intended to protect asbestos victims, not a single asbestos victim has expressed support for HR982." All the objections didn't deter the Republicans. Their committee report says the bill bans "disclosure of confidential medical records" by the asbestos trusts. But it also requires the trusts to "provide information related to payment from, and demands for payment from such trust to any party in an action involving liability for asbestos exposure." Left unsaid in the GOP description: The information comes from the victims or their survivors and "any party" includes the asbestos manufacturers. ASBESTOS UPDATE: Deadly Dust Cleared From Lady Brooks Kindergarten ------------------------------------------------------------------ Emma-Jayne Schenk, writing for Bendigo Advertiser, reported that Lady Brooks Kindergarten, in Australia, will reopen following an asbestos scare. Two small pieces of asbestos were found in the playground but have now been safely removed by a specialist. The original source of the asbestos material is still being investigated; it is believed they were brought onto the site or are remains from a previous building. Asbestos removal company Statewide Asbestos removed and replaced the top layer of soil in the play area and sand in the children's sand pit. It found the asbestos was non-fibrous and not easily airborne. It is also believed children at the kindergarten will not be put on the asbestos register, due to the "negligible risk" of contamination. Families were notified of the reopening, after the site was declared safe for children to return. Sessions for 4-year-old and 3-year-old groups, which were this week moved to Kyneton Primary School, will resume as normal. Macedon Ranges Shire Council director of community well-being Karen Stevens said the unexpected disruption to the service showed the strength of the community during challenging times. "Kyneton Primary School was instrumental in the successful relocation of a number of kinder groups to the school grounds," she said. "We have also received positive feedback from families on the transition and acknowledge this has been achieved with the support of the school and local community combined. "The temporary relocation to the primary school also gave the children an opportunity to learn about and explore a new environment." Ms Stevens thanked families for their support and patience. An information session for families was held on November 19, where parents will have an opportunity to talk to Identifibre, council's asbestos specialist and council staff. ASBESTOS UPDATE: Educ. Agency Gives Reassurance After Pay Out ------------------------------------------------------------- Eastbourne Herald reported that the education authority in the United Kingdom has reiterated its commitment to asbestos management in school buildings in light of the out-of court settlement to the widow of a Ratton school teacher who died from an asbestos-related death. East Sussex County Council says all of its owned and occupied buildings, including schools, are surveyed by specialist licensed consultants for asbestos containing materials on a regular basis through a rolling programme. The authority has just made an out-of-court settlement to Sue Beck, of Kings Drive, whose husband Clive was head of history at Ratton School between 1972 and 1998. Mr Beck died at the age of 71 in April 2009, around 18 months after he was diagnosed with mesothelioma, an incurable cancer of the lining of the lung. Mrs Beck, 70, launched a legal bid against the county council over concerns more could and should have been done to protect her husband from inhaling asbestos fibres at the school during his career. A spokesman said, "We are committed to providing a safe and healthy environment for pupils to learn and for employees to work. "Where asbestos containing materials are identified in any of our buildings they are removed or encapsulated through a controlled and managed process to minimise risk." ASBESTOS UPDATE: House Votes to Increase Fibro Claim Disclosures ---------------------------------------------------------------- Henry C. Jackson, writing for The Associated Press, reported that the House on Nov. 16 voted to tighten disclosure requirements from asbestos trusts set up more than 20 years ago to help pay billions of dollars in injury claims. By 221-199, the House approved a measure requiring asbestos trusts that pay damages to current and future asbestos victims to publish detailed quarterly reports with bankruptcy courts. The information must include names of new claimants and how much money the trust has paid out, under the legislation. House Republicans say the bill -- backed by the business community and the Chamber of Commerce -- would provide oversight to asbestos trusts and ensure funds are available for future victims. Most House Democrats opposed the measure, citing privacy concerns. The bill is likely to die in the House. The Democratic controlled Senate has no plans to take up the bill and the White House said President Barack Obama would veto it. Asbestos, a building material linked with cancer and other health problems, has been the subject of lawsuits awarding billions of dollars in damages. As health concerns became clearer, and the number of lawsuits swelled, companies forced into bankruptcy because of asbestos litigation transferred their assets and liabilities to trusts established to pay current and future asbestos victims. At least 100 companies have gone into bankruptcy at least in part from liabilities tied to asbestos, according to a 2011 Government Accountability Office report. There are 60 asbestos trusts, with about $37 billion in assets, according to the GAO report. Republicans say those trusts are ripe for fraud because of scant disclosure requirements. Rep. Blake Farenthold, R-Texas, who wrote the bill, said more oversight is needed to prevent people from filing claims with multiple trusts, or fraudulent claims. Trusts are in danger of running out of money if nothing's done, he said. "We've got to protect this for future generations," Farenthold said. "We simply ask that we know who is getting what out of these trusts." Democrats said the bill would subject asbestos victims to new privacy concerns because their name and the last four digits of their Social Security numbers would be public under the law. "Every crook in the world with Internet access could use this information," said Rep. Hank Johnson, D-Ga. ASBESTOS UPDATE: Chevron Settles Fibro-Related Death Suit --------------------------------------------------------- David Yates, writing for The Southeast Texas Record, reported that the family of the late Romeo Vera has reached a settlement in their suit against Chevron U.S.A. -- the company they blamed for Vera's asbestos exposure and death. Gaynell Vera, along with her three children, filed the suit April 11, 2011, in Jefferson County District Court. Court records show that on Oct. 15 the parties filed a joint motion for dismissal, stating a settlement had been reached. Judge Bob Wortham, 58th District Court, granted the motion on Oct. 31, dismissing Chevron with prejudice. According to the petition, Vera was employed by Gulf Oil Corp., now owned by Chevron, at its Port Arthur refinery, where he was allegedly exposed to asbestos dust and fibers. "As a result of such exposure, Romeo Vera developed an asbestos- related lung disease, for which he died a painful and terrible death on Oct. 26, 2009," the suit states. "The defendant knew for decades that asbestos products could cause . . . cancer and sill allowed employees to work with and around asbestos products in the workplace." The plaintiffs were suing for exemplary and punitive damages. Provost Umphrey attorney Keith Hyde of Beaumont represents them. Case No. A189-754 ASBESTOS UPDATE: Chevron, Texaco Dismissed From Exposure Suit ------------------------------------------------------------- David Yates, writing for The Southeast Texas Record, reported that Texaco and Chevron USA have been dismissed from an asbestos suit brought by the widow of Homer Fitts, who sued the companies alleging they negligently exposed him to asbestos throughout his career. Eunice Fitts, on behalf of her late husband, filed the suit June 23, 2011, in Jefferson County District Court. On Oct. 14 the parties filed a joint motion for dismissal, court records show. A week later, Judge Gary Sanderson, 6oth District Court, granted the motion. According to the lawsuit, Homer was employed by Texaco at its Port Arthur refinery, working as a pipefitter and painter -- occupations which allegedly exposed him to asbestos dust and fibers. "As a result of such exposure, Homer Fitts developed an asbestos- related disease, asbestosis and lung cancer, for which he died a painful and terrible death on March 10, 2010," the suit states. The suit alleged the defendants knew of the hazards of asbestos and still allowed their employees to work with asbestos products in the workplace. The plaintiff was suing for exemplary damages. Beaumont attorney Keith Hyde of Provost Umphrey represents her. Case No. B190-403 ASBESTOS UPDATE: Row Erupts Over Hospital Fibro Safety Breaches --------------------------------------------------------------- Caroline Wilson, writing for Herald Scotland, reported that a row has broken out over asbestos safety breaches at two hospitals. The Health and Safety Executive has submitted a report to the procurator fiscal after an investigation found evidence of contamination in a plant room at the Southern General Hospital in Glasgow. The HSE said a report was also due to be submitted to the Crown Office following an investigation at Dykebar Hospital in Paisley. However, the health board claimed it was told by the HSE that it would not be taking any further action at this site. Two other investigations were carried out at Clydebank Health Centre and the Skyelark Centre at Inverclyde Royal Hospital, which have now been concluded with no further action taken. The board was prosecuted and fined GBP6000 last year for breaches at a plant room at the Royal Hospital for Sick Children at Yorkhill. A spokeswoman for the HSE said it had submitted a report to the Crown Office Procurator Fiscal Service "for consideration relating to the Southern General Hospital". "The investigation at Dykebar has concluded and a report is being prepared for consideration by the Crown Office," she added. "Two other investigations at Inverclyde Royal Hospital and the Clydebank Health Centre have been concluded and the HSE is not recommending any further action." A health board spokeswoman said: ""We received verbal feedback from the HSE that no further action would be taken at Dykebar. We will be seeking clarification from the HSE about this. "We are fully compliant with all the legislative requirements around asbestos surveillance, management and disposal." ASBESTOS UPDATE: Temporary Fibro Storage Approved by Jersey Agency ------------------------------------------------------------------ BBC News reported that asbestos will be buried in the ground for up to five years while work on a permanent solution for Jersey, in the United Kingdom, is found. The planning and environment minister approved an application for it to be stored at La Collette reclamation site. Transport and Technical Services, which is responsible for all waste, first asked to bury it in 2010. It will need to get approval for changes to the site's environmental management plan and a waste management licence before starting work. The asbestos is due to be stored in constructed cells in the ground and the conditions of its burial include requirement for a periodic review of other recovery or disposal options. Deputy Rob Duhamel, Environment Minister, said "I remain determined that waste arising from the island is dealt with in the most environmentally friendly way, which does not leave a lasting impact on future generations. "I do not believe that burying asbestos in the ground is the best long term solution and I have been pressing for other existing solutions to be looked at. "I am pleased that Transport and Technical Services have agreed to work with my department and explore alternative options that will result in a better long term answer to the asbestos management problem we have." Asbestos, which can be lethal if its dust is breathed in, was used as a building material and since the 1980s any removed during renovation or demolition work has been stored at La Collette. ASBESTOS UPDATE: Toxic Dust Found in Glasgow Hospital ----------------------------------------------------- The Scotsman reported that NHS Greater Glasgow and Clyde, in Scotland, is facing legal action after asbestos was found at a city hospital. The Health and Safety Executive has submitted a report to the Crown Office Procurator Fiscal Service relating to asbestos in the plant room of the Southern General Hospital in Glasgow. A second report is being prepared by the HSE for the COPFS about asbestos at Dykebar Hospital in Paisley, Renfrewshire -- despite NHSGGC being told by the HSE they would take no further action. Two other NHS Greater Glasgow and Clyde sites were also investigated but these will not be reported to the COPFS. An HSE spokeswoman said: "HSE has submitted a report to the Crown Office Procurator Fiscal Service for consideration relating to Southern General Hospital. "The investigation at Dykebar has concluded and a report is being prepared for consideration by COPFS. "The investigations at Inverclyde Royal Hospital and Clydebank health centre are concluded and HSE is not recommending any further action. We will continue to work with NHS Greater Glasgow and Clyde on their asbestos management." A spokeswoman for NHSGGC said: "Whilst NHSGGC is facing legal action regarding asbestos in one room, a plant room at the Southern General Hospital site, the Health and Safety Executive have advised that no action will be taken against NHSGGC following their investigations into asbestos at the three other sites. "We proactively reported to the HSE the presence of asbestos when it was identified at Clydebank Health Centre, Dykebar Hospital and the Skylark Centre at Inverclyde Royal Hospital. "We received verbal feedback from the Health and Safety Executive that as far as the Dykebar site was concerned they were taking no further action against NHS Greater Glasgow and Clyde but we will seek to clarify this with the HSE." The HSE has also supported the appointment of an NHSGGC asbestos manager, the spokeswoman for the health board added. "We are fully compliant with all the legislative requirements around asbestos surveillance, management and disposal and are no different to any other organisation responsible for buildings constructed before 1999 when the import, sale and second hand re-use of white asbestos was banned in the UK," she said. ASBESTOS UPDATE: Fibro Drives Up N.C. Courthouse Repair Costs ------------------------------------------------------------- The Dispatch reported that Davidson County, North Carolina commissioners did the correct thing by appropriating an additional $250,000 toward repairs at the Old Davidson County Courthouse. The additional funds will go toward asbestos removal from the exterior of the building and raise the total price tag to about $870,000. The work was simply too far along at this point not to give the additional money. But it definitely should have been discovered before the work started. Perhaps that would have changed the initial vote on the repairs, but one of the county's most iconic structures needs to be maintained. Commissioners on a facilities committee and the architect seemed to point fingers at each other on who dropped the ball. The situation illustrates the need for due diligence on future repair projects in which the county may enter. The old court house presents unique challenges due to its age and place on the National Register of Historic Places. Such an important architectural structure certainly should remain on the register, even if that complicates repairs. After the present work is complete, the building should be in good shape for many years as long as routine maintenance occurs. The latest effect of the ongoing uncertainty over sweepstakes businesses in North Carolina has hit the City of Lexington's wallet. The city will return about $26,500 in license fees to several sweepstakes businesses. The fees could have generated $100,000 annually, but when the legislature made the businesses illegal, the city lost that potential revenue source. Sweepstakes owners might be best off following the lead of Phil Giurintano, who decided to close his business rather than risk being in violation of the law. Efforts to comply by changing software seem tenuous at best. The more information tourism leaders can gather about visitors to Lexington, the better they can target the city's efforts. The Lexington Tourism Authority has received results of a wayfinding survey that visitors to the city completed. One goal of the effort is to create better signage to direct tourists to popular locations. The results also can help attractions market themselves more effectively. Robberies tend to increase during the holidays, and that trend is already starting to play out. Lexington saw three robberies and Thomasville one in a four-day period. Both businesses and individual shoppers need to be wary during the holiday season. Shoppers may be carrying more cash as they buy gifts, and businesses hope to see cash registers ringing with sales. Robberies can be almost impossible to prevent, but some common- sense precautions and alertness can make businesses and individuals less likely targets. ASBESTOS UPDATE: Aviva Seeking Buyers for Fibro Claims Portfolio ---------------------------------------------------------------- Farquar McIntosh, writing for Invezz.com, reported that British insurance company Aviva Plc is looking to sell a GBP1 billion portfolio of toxic liabilities including a large book of historic asbestos related claims, Sky News reported, citing unnamed inside sources. The move is part of the company's effort to improve its balance sheet led by Chief Executive Mark Wilson. According to the sources a sale of the portfolio was only one of the options being considered by the insurer. In the Nov. 15 trading Aviva shares rose 0.56 percent to 434.80p as of 13:10 UTC. The company's stock has gained about 16.5 percent this year. Asbestos book Trade these shares now through Hargreaves Lansdown from GBP5.95 per deal. Aviva is looking to sell a GBP1 billion book of liabilities in a bid to reduce risks on its giant balance sheet, according to the report by Sky News. Sources close to Aviva have said that the insurer appointed accountancy firm KPMG to market the portfolio. Likely bidders for the book, which also includes some non-asbestos liabilities, include funds specialising in distressed investments. The insiders note that the sale of the portfolio is by no means certain and that the insurer is considering other options as well. If a sale is achieved, it would make it one of the biggest asbestos related portfolios to be sold by a major UK insurance company in recent years. The company had declined to comment on the subject, Sky News reported. Cost cutting Since taking over earlier this year, Aviva's Chief Executive Officer Mark Wilson has started a significant restructuring effort in order to cut costs at the group and improve its capital position amid increased scrutiny from regulators over insurers' balance sheets. Wilson replaced Andrew Moss at the helm, who was ousted after an investors' revolt over his pay and the sluggish performance of the company's share price. Aviva is cutting hundreds of jobs and is selling a number of its international operations, including some in the United States. During the last two years, the company's surplus capital has increased from about GBP5 billion to more than GBP8 billion, Sky News noted. Aviva has rejected an unsolicited bid from rival insurer RSA Insurance Group plc (LON:RSA) for its general insurance businesses in the UK and Ireland. ASBESTOS UPDATE: St. Cloud to Remove Fibro in Tech High School -------------------------------------------------------------- Matt Dotray, writing for sctimes.com, reported that the St. Cloud, Minnesota school district is set to begin removing asbestos found in old plaster ceilings at Technical High School. The project is estimated to cost between $820,000 and $1.3 million. Asbestos was found in the summer during an inspection by Resource Training & Solutions. Schools have general inspections every six months. More investigative inspections, such as the one in the summer when the ceilings were checked, happen every three years. Asbestos was used in buildings because of its high resistance to heat and flames, but it can be released into the air if structures are worn out or damaged. If released into the air, the fibrous material can harm the lungs and potentially cause cancer. An air quality test to determine the amount of asbestos fibers in the air showed that the air is not hazardous. Bryan Brown, supervisor of buildings and grounds, said the affected area is 25,000 square feet. The majority of it is located in the upper and lower resource center of the building. Other problem areas include the hallway in the east building, a short hallway on the first floor by the cafeteria, the main hallway on the second floor and a few rooms on the third floor. The affected area is the soft plaster above the suspended ceiling, Brown said. The plaster, which is from the original building, has begun drying out and falling off, landing on top of the suspended ceiling. In the lower resource center, the ceiling is 27 feet from the floor. It is not all affected by asbestos, but Brown said they have decided to completely reconstruct the ceiling and bring it down so it equals the 12-foot ceilings found elsewhere in the building. "Because the plaster is in such bad shape and cracking and everything," he said, "we decided that we're going to get rid of it altogether and get rid of the plaster, also." Workers will begin removing the non-affected plaster in the middle of May, Brown said. They'll do that in the evenings when students are not in school. They will begin removing the asbestos when school is finished. Brown said all the asbestos should be removed by July 16, so reconstruction on the new ceiling and lighting can be completed before the new school year. Executive Director of Business Services Kevin Januszewski said $350,000 for asbestos removal will come out of the health and safety budget. The district has $1.1 million this year in that budget. Along with removing asbestos, it covers costs for fire safety and indoor air quality. The remaining cost will be drawn from the deferred maintenance budget. There is $4.5 million in the deferred maintenance budget this year, and there will be $5 million next year. Because of the unexpected cost, some anticipated projects will need to be delayed, Januszewski said. Projects such as upgrading interior lighting, repaving parking lots and repairing boilers are drawn from the deferred maintenance budget. The district spent more than $4.4 million on Tech between 2004 and the end of 2009. Repairs include new roofs, floors and air quality projects. The asbestos removal project was discussed at the St. Cloud school board work session Nov. 13. At the meeting, Brown mentioned previous discussions about selling the 96-year-old building. "If we closed that building today and sold it, we are still responsible for that asbestos," he said. "If we tore it down today, we would have to clean all that asbestos up in that building before we tore it down. So, we're responsible for it either now or later." ASBESTOS UPDATE: More Deadly Dust Found in Rock Island School ------------------------------------------------------------- Tara Becker, writing for Quad-City Times, reported that an additional 10,000-square-feet of asbestos discovered on the second floor of the former Audubon Elementary School in Rock Island, Illinois, will cost $57,000 to remove, a spokeswoman for the Rock Island-Milan School District said. Holly Sparkman said the removal may add only a day or two to the asbestos abatement process, with demolition scheduled to begin the first week in December. The school board will vote on the additional work and cost during a special meeting at the Administration Center, 2101 6th Ave. Valley Construction of Rock Island began removing asbestos from the building Nov. 7 to prepare the building to be demolished. Sparkman said the construction crew recently discovered that tiles on the ceiling of the second-floor had layers of mastic glue, a heavy-duty adhesive primarily made out of asbestos. On Oct. 22, the school board approved a bid of $224,3000 to demolish the 90-year-old building at 2617 18th Ave., which has been closed since June 2010. Fareway Stores Inc. initially wanted to purchase the building for $475,000 for a new grocery store at the site. Neighbors protested the move, and Fareway decided to rescind its offer in July. Since then, local developer Joe Lemon Jr. made a formal offer of $100,000 on Nov. 7. The school board still wants to move forward with the demolition, Sparkman said. Once the building is razed, the district will work with its Realtors to sell the property. During the demolition process, workers will set aside bricks for community members, Sparkman said. ASBESTOS UPDATE: Wrongful Death Suit vs. Chevron Dismissed ---------------------------------------------------------- David Yates, writing for The Southeast Texas Record, reported that an asbestos suit against Chevron USA has been dismissed. On behalf of Thaddeus Alpough, Mary Alpough and her siblings filed the suit Aug. 16, 2011, in Jefferson County District Court, alleging Chevron exposed their late father to asbestos during his employment with the company. Court records show that on Oct. 15 the parties filed a joint motion for dismissal with prejudice, which was granted by Judge Gary Sanderson, 6oth District Court, six days later. The petition alleged that Alpough worked at Chevron's Port Arthur refinery as a boilermaker helper and pipefitter -- occupations that exposed him to asbestos dust and fibers. "As a result of such exposure, Thaddeus Alpough developed asbestos-related pleural disease, lung cancer and then gastric cancer, for which he died a painful and terrible death on May 7, 2010," the suit stated. Chevron was accused of knowing that asbestos products could cause cancer but still chose to expose workers, such as Alpough. The Alpough family was suing for punitive and exemplary damages. Beaumont attorney J. Keith Hyde of the Provost Umphrey Law Firm LLP represents the family. Case No. B190-682 ASBESTOS UPDATE: Belleville OKs Fibro Removal at Downtown Bldg. --------------------------------------------------------------- Jacqueline Lee, writing for BND.com, reported that the council in Belleville City, Ontario, voted night to approve the cost of asbestos removal at a city-owned building downtown used by the Art on the Square committee. Mayor Mark Eckert said the city has the responsibility to address the asbestos once officials learn of the problem at 30 Public Square. Councilmen agreed and approved $6,350 for the work. The asbestos issue, however, brought to light that city officials cannot find a written agreement with the nonprofit Art on the Square to use the building. Some aldermen, including Ward 7 Alderman Trent Galetti and Ward 2 Alderwoman Melinda Hult, asked why the city owns the building and why Art on the Square is allowed to use the building without paying rent or utilities. Eckert said he does not believe the city should charge Art on the Square rent. At a Finance Committee meeting last week, Eckert said: "It's been a gentlemen's agreement that they've done fabulous things for the city and we in turn let them use the building." Eckert said he will talk to Patty Gregory, and other Art on the Square organizers, about the need for written terms on building use. Hult said she will ask city leaders to discuss at future committee meetings whether the city should retain ownership of the 30 Public Square site. ASBESTOS UPDATE: Garlock Suit Points to Abuse Bill Seeks to Fix --------------------------------------------------------------- T.K. Kim, writing for Legal Newsline, reported that during the bankruptcy trial of Garlock Sealing Technologies, a manufacturing company that once produced asbestos-containing products, Lester Brickman, a professor at the Benjamin N. Cardozo School of Law of the Yeshiva University, testified about fraud on the part of plaintiffs suing companies for their asbestos-related ailments. The problem, he testified, was that certain confidentiality provisions enacted for trusts established to pay claimants who came into contact with asbestos caused significant transparency issues preventing companies like Garlock from cost-effectively ferreting out bogus claims. Brickman authored a report on fraudulent asbestos claims and has testified before Congress on the issue. The way the provisions are enacted, companies such as Garlock have no cost-effective means to find out whether a person filing a claim against them might also have done the same against other former asbestos manufacturers, he said in court. That is why Brickman, in an interview with Legal Newsline, believes a recent bill introduced by Rep. Blake Farenthold, R-Texas, called the Furthering Asbestos Claim Transparency Act, which passed the U.S. House of Representatives last week would go a long way in helping alleviate these potential abuses. The bill requires asbestos trusts established to pay off future claims against asbestos companies, to release quarterly reports about who seeks compensation. The House voted 221-199 to pass the bill. Brickman said that the bill's requirement should allow debtor/defenders to "vastly improve" in their defense against fraudulent claims where a plaintiff files a claim attributing their asbestos-related ailments to one manufacturer and then filing a similar claim against another thereby collecting multiple recoveries for the same underlying issue. To date, Garlock has paid out more than $1.3 billion in asbestos claims. Of that amount, Brickman previously testified at trial that about $1 billion had been paid out to claimants who did not develop any malignant cancers, which he labeled as fraudulent claims. "These settlements as well as others were affected significantly by plaintiffs suppressing evidence," Brickman testified at the trial. "My opinion is that Garlock's settlement history is not an accurate reflection of Garlock's liability," he said at trial. Because of the on-going status of the Garlock bankruptcy trial where he was a witness for Garlock, Brickman declined comment on any issues specifically related to Garlock. But in regards to the FACT Act, Brickman said that the FACT Act would enable defendants in the tort system to gain information about trust claim filings at a minimum of costs and delays. A recent lawsuit Garlock filed against a plaintiffs law firm highlights the kinds of abuse the FACT Act is supposedly meant to discourage. In a 2012 complaint filed against lawyers from the firm Williams Kherkher Hart Boundas, LLP, Garlock alleges that lawyers from the firm fraudulently concealed evidence "they were obligated to disclose in discovery." In the suit filed in the U.S. Bankruptcy Court for the Western District of North Carolina, Garlock contends that lawyers from the firm "repeatedly signed discovery responses concealing the exposures that were the foundations of the claims they were making in bankruptcy. The Defendants perpetrated fraud to increase the amount of the contingency fee that they would bring in from this personal injury case." The lawsuit stems from an earlier suit filed by members of the firm representing a mesothelioma patient. The patient worked at Triplex, a company that sold different industrial products including asbestos pipes between the years 1966 to 1968 while he was still in high school. Because few, if any records of the company's inventory from that time period still exist, Garlock contended in the lawsuit that it allowed for (without explicitly alleging) plaintiff's attorneys to "implant memories" of what products the patient had been exposed to, allowing Garlock to be targeted in litigation. In their lawsuit against lawyers from the firm, Garlock alleges that the firm's lawyers filed a claim against CAPCO, a bankrupt company that produced asbestos pipes Triplex sold. Triplex also was a distributor for Johns-Manville Corporation, a major manufacturer of asbestos-containing products including gaskets. But with the potential payoff for a claim in bankruptcy court being limited, Garlock contended that the firm decided to target Garlock in the tort system since it was still solvent and could potentially result in a much larger payoff then filing a claim against the trust the companies in bankruptcy set up to pay victims. To do so, Garlock alleges in their lawsuit that the firm's attorneys sought to attribute their client's mesothelioma to exposure to two kinds of asbestos fibers that both Johns- Manville and Garlock used in the products they sold, chrysotile and crocidolite. With both companies selling products that contained both kinds of fibers, it allowed for the firm to sue Garlock and attribute their client's chrysotile exposure to the other company. In their lawsuit, Garlock alleges that lawyers from the firm made a claim against the CAPCO trust claiming crocidolite asbestos exposure from their products as well. The dispute is still ongoing in the U.S. Bankruptcy Court in the Western District of North Carolina with the court recently denying a defense motion for summary judgment on Sept. 17. The case is presided over by Judge George Hodges. "I gauge the impact of the FACT Act in part on the plaintiffs' bar's level of opposition to its adoption -- based upon that concerted effort on the part of the plaintiff's bar to prevent the Fact Act from being enacted, I conclude that the plaintiff's bar thinks it'll significantly impair the value of tort claims," Brickman said. ASBESTOS UPDATE: Saskatchewan Registry Law Comes Into Effect ------------------------------------------------------------ Jeff Cottrill, writing for Canada OH&S, reported that nearly a year after the death of an advocate from cancer caused by asbestos exposure, the Saskatchewan government has officially enacted a law named after him -- a law making it mandatory for public buildings containing the notorious mineral to report it. The Public Health Amendment Act, also known as Howard's Law, went into effect on Nov. 7. The law makes Saskatchewan the first Canadian province to enact legislation requiring a public registry of buildings known to contain asbestos. Crown corporations, schools, health facilities and provincial government organizations must now report any asbestos content in their facilities to the Saskatchewan Asbestos Registry. "At the present time, it's mandatory for public buildings," explained Don Morgan, Saskatchewan's minister of labour relations and workplace safety. "That will include buildings owned by public sector entities, and it will be optional for building owners beyond that point. So if you are a large commercial landlord and you wish to list your buildings, you could, but we require it for hospitals, schools and that type of thing." The provincial government passed the act in the legislature after its third reading on April 18, five months after Saskatchewan launched a voluntary registry and an online information guide about buildings with asbestos. Morgan anticipates that the new law will benefit the public in two ways: providing specific information about asbestos content in the province's buildings, and raising public awareness of the general existence of the material. "It exists in a lot of buildings that were constructed before 1980," he said. "In most of them, it's encased and it's not a factor. The problem arises when somebody will go in to change plumbing pipes or do electrical work and then will inadvertently disturb the asbestos, and it becomes airborne. The risk occurs if it's accidentally disturbed or moved into the air," Morgan said. Howard's Law is, in part, the legacy of the late Howard Willems, an asbestos awareness activist who worked for the Canadian Food Inspection Agency while co-chairing local OH&S committees (COHSN, Nov. 19, 2012). In 2010, Willems was diagnosed with mesothelioma, a type of lung cancer linked to asbestos. He passed away on Nov. 8, 2012. "We've accomplished everything that Howard set out to do," said Jesse Todd, a health and safety officer in Saskatchewan and the chairman of the Saskatchewan Asbestos Disease Awareness Organization (SADAO). "We've carried on in his name, in his honour, so it's very gratifying to see this become law." Willems co-founded SADAO with fellow activist Bob Sass in 2010, out of the former Saskatchewan Ban Asbestos Committee. Todd suggests that the other provinces -- and the federal government, which has jurisdiction over a lot of buildings and facilities under the Canada Labour Code -- need to consider adopting similar asbestos registries. "I believe that a registry would benefit those workers as well," he said. "There are some good regulations out there that do refer to how to deal with asbestos once it's been identified. But the problem is, people do not have the tools available to them to identify where asbestos is prior to beginning a renovation of a building." Morgan said that the act had been named after Willems because of his strong advocacy of a mandatory asbestos registry during his final days. "It's part of a larger oh&s piece," Morgan said about the law, "but that portion of it we refer to as Howard's Law, just to respect his contribution." While Willems would have been pleased to see his namesake become a reality in provincial law if he'd been alive today, Todd pointed out, the late activist would not have stopped there. "He would look out and know there's a lot more work to do, and he'd keep pushing ahead," Todd said. "His goal was definitely to have an all-out countrywide registry, and his main goal was to protect all workers that were working with asbestos and all workers that could be at risk. "He was a really strong believer in the right to know," Todd said. "His motto through the whole process was: 'Never quit.'" ASBESTOS UPDATE: Tascot Carpet Factory Fibro Removal Questioned --------------------------------------------------------------- Libby Bingham, writing for The Advocate, reported that removal of asbestos and other work being carried out at the old Tascot carpet factory at East Devonport, in Tasmania, Australia, has caused some concern for local residents. A number of issues were raised at a Devonport City Council meeting, including questions about why truckloads of materials were taken on site. Three people took to the microphone during the council meeting's public question time to ask what was happening. One resident said he was worried to see asbestos signage appear on the factory fence. He wanted to know if the council knew anything about the demolition of the factory and the cost of it. Another resident told the council the gate was left unlocked while the work was being carried out at the carpet factory and anyone could walk in. A resident wanted assurances from the council that the site would continue to be zoned residential, which is what it reverted to after the factory closed down. Acting council general manager Matthew Atkins confirmed that asbestos removal was happening at the old factory. Mr Atkins said no council permit had been granted for any building works. He said the work going on at the factory would be repairs and maintenance work only. Devonport Mayor Steve Martin said that under the interim planning scheme the site was zoned residential and would remain so unless a development application was received asking the council to consider rezoning the site. Alderman Martin said the council would look at any such rezoning application on its merits. He said Workplace Standards Tasmania would be in charge of any removal of asbestos. ASBESTOS UPDATE: EQC Policy Review Could Save Lives --------------------------------------------------- Georgina Stylianou, writing for stuff.co.nz, reported that an Earthquake Commission (EQC) policy of covering up asbestos in hundreds of quake-damaged Canterbury, New Zealand homes could be overhauled by the Government amid concerns about serious health risks. Government officials have previously raised concerns about the way asbestos is being handled in post-earthquake Canterbury, but say the introduction of the Health and Safety at Work Bill next month will make guidelines more clear for construction workers. Staff from WorkSafe -- the new health and safety regulator -- were in Christchurch and told The Press it would be naive to think there would not be asbestos-related illnesses in the future. The EQC has previously said up to 43,000 Christchurch homes due for quake repairs could contain the potentially fatal substance. It estimated that in 10 per cent of cases, asbestos found in ceilings or walls was encased behind plasterboard, instead of being removed. A Fletcher spokesman said about 15 to 16 per cent of houses that tested positive for asbestos were being encased. The chairman of the WorkSafe establishment board, Gregor Coster, believed the encasement policy should be "reconsidered carefully" because it posed serious health risks in the future. "An electrician might be rewiring a house and is put at risk and this is not what we should be doing in terms of managing health and safety," he said. An EQC spokesman said if there were any changes to regulations it would comply. Coster said contractors across the region needed to be better at testing for asbestos. "The truth of the matter is I am concerned about the potential exposure . . . particularly during that early demolition phase," he said. Geoffrey Podger, the acting chief executive of the WorkSafe establishment unit, said only a certain percentage of asbestos breaches in the city were identified. "Our inspectors can't be everywhere, but equally if everyone could carry out their legislative duties, they wouldn't need to be," he said. MBIE health and safety inspector Steve Moran said the influence of big project management firms -- including Arrow International and Fletcher -- was having a "huge effect in lifting the performance of smaller companies". Canterbury District Health Board medical officer of health Dr Alistair Humphrey, who has been fighting for EQC to review its encasement policy since 2011, said it would have been cost- effective and logical to remove asbestos from houses when repairs were being done. He urged the Government to follow in the footsteps of Australia and make a commitment to remove asbestos. However, it was good news the policy could be reviewed. "The Christchurch community and the New Zealand population will reap the benefits of [WorkSafe and MBIE's] courage," Humphrey said. ASBESTOS UPDATE: Toxic Dust Halts Kaikohe Hotel Demolition ---------------------------------------------------------- Auckland Now reported that the old Kaikohe Hotel, in New Zealand, slated for demolition, just doesn't seem to want to die. The once grand old lady, showpiece of the town's main street, now stands dilapidated, dangerous, and defiant of the wrecker's ball. The reason she hasn't been knocked to the ground yet is that the new owners of the site, Ngapuhi, are experiencing problems finding demolition contractors with the necessary expertise in handling asbestos. The building is full of it, Ngapuhi spokesman Sonny Tau says. Many of the country's asbestos-experienced contractors are thought to be working in Christchurch on post earthquake work. As soon as a suitable contractor is found and hired, the old girl will come down. Mr Tau says she is beyond restoration. The site will be cleared and as a temporary measure, turned into a park. Mr Tau says Te Runanga-a-Iwi-o-Ngapuhi will work on a plan for the eventual use of the site. But the organisation is adamant that there will be no pub on the site ever again. The runanga has said in previous statements that it did not buy the site for any kind of commercial use. The purchase was socially motivated. The runanga saw the $287,000 purchase of the 1.2ha property as a chance to own a significant piece of real estate in Ngapuhi's central town. Asked if Ngapuhi would put a plaque or memorial on the site to commemorate the historic pub, Mr Tau said "No." There have been reports that people have been entering the building at night to pursue various activities. Mr Tau says that this is a potential problem with any abandoned building but they know of no problems of that nature with the hotel. He says there are signs forbidding entry and explaining the dangers. The building was ordered closed by a court order in January this year on the grounds that it was unsafe. The hotel dates back to 1894. Queen Elizabeth is thought to have stayed in it on her visit to New Zealand in 1952. Three of New Zealand's street artists tackled a side wall of the old building in January this year, taking it on as a big and challenging canvas. Cinzah Merkens, who works under the name Seekayem, Misha Uteev or Wert159 and Simon Ormerod or Cracked Ink spent several days in Kaikohe last summer working with the community on the massive mural. They were aware that the hotel would eventually go under the wrecking hammer. ASBESTOS UPDATE: Fibro Warning Issued in Verge Collection Goods --------------------------------------------------------------- Tom Rabe, writing for Stirling Times, reported that the annual verge collections throughout Perth, Australia, can be fraught with risk, according to the Asbestos Disease Society, which said appliances containing asbestos could often be mismanaged and left for council workers to deal with. The Stirling Times received a phone call from a resident who said he had seen old ovens with asbestos lugs put out for verge collection, and was concerned for residents and City workers. Robert Vojakovic, from the Asbestos Disease Society in Osborne Park, said items thrown out during verge collections can often contain asbestos, and residents must take more care when disposing of old whitegoods for their family's and council workers' safety. "The annual council verge collection is sometimes fraught with risk associated through exposure to asbestos fibres, in particular old electrical and gas appliances such as stoves, ovens, heaters and old hair dryers," Mr Vojakovic said. "This type of exposure to asbestos dust has a multiplicative effect, that is, the resident placing the appliance on the verge would have some exposure and indeed the public who are walking by or picking from the verge odds and ends would also be exposed to asbestos fibres." The City of Stirling said it was taking all possible precautions in dealing with old whitegoods that may contain asbestos lugs during verge collection. City of Stirling acting manager of health and compliance Greg Ducas said the City took care when collecting whitegoods and residents should immediately contact the City if they believed an item contained asbestos. "Should residents have any concerns about items placed on verge collections, they should contact the City," Mr Ducas said. "The City would initially talk to the homeowner who has discarded the items to ensure they dispose of them properly, or in the cases of illegally dumped items that contain asbestos, the City will arrange disposal when required where there is a potential public health risk." Mr Vojakovic said council workers were often most at risk during verge collection if the council was not made aware of an appliance containing asbestos. "One must have regard to the unlucky council workers loading the appliances onto the collection trucks and off loading at the tip," Mr Vojakovic said. "Most likely the Council workers would not have a change of clothing at the end of their shift, they then bring the deadly asbestos dust home to their families." ASBESTOS UPDATE: Lawyer Disputes Findings of Fibro Insurer Report ----------------------------------------------------------------- Tami Kamin Meyer, writing for Legal Newsline, reported that experts are in disagreement about the findings of a newly released report that says insurers suffered increasing losses from asbestos and environmental claims in 2012. The report, relased by of A.M. Best Co., said annual incurred asbestos and environmental losses increased by 12 percent in 2012. That uptick followed a 31 percent decline in 2011. However, Steven Kazan -- a founding member of the Oakland law firm of Kazan, McClain, Satterley, Lyons, Greenwood & Oberman -- disputes those findings. "We have not had an increase in the number of mesothelioma cases over the last five to 10 years," he said. "Good cases are settling for what they should. These are catastrophic injuries with identifiable" plaintiffs. However, he argued that if insurance companies are reporting increased losses due to asbestos litigation, it's due to their own greed. "Management is incompetent," Kazan said. "They (insurance companies) behave in ways that drive up costs for no good reason." However, it seems a report released by the Judicial Conference Ad Hoc Committee on Asbestos Litigation in 1991 is proving prophetic. According to the 22-year-old report, the latency period of asbestos-related diseases can be as long as 40 years. "Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015," noted the report. According to the Health and Safety Executive, despite a decrease in mesothelioma deaths in 2011 compared to 2010 (2,291 to 2,360, respectively), annual statistics are expected to increase in future years before reaching a peak toward the end of this decade. In contrast, the number of new cases of mesothelioma leading to Industrial Injuries Disablement Benefits has increased from 1,985 in 2011 to 2,125 last year. Also, a report released by NERA Economic Consulting offers yet another snapshot of the asbestos litigation landscape. The report's authors used publicly available data regarding asbestos- related liabilities from more than 150 companies and found that the asbestos liabilities of solvent entities varied little from 2012 and 2011. However, in their 2012 report, the authors reported the average dollar amount per resolved claim had increased 75 percent between 2010 and 2011. The report attributed this uptick to an evolving disease mix of the resolved claims, rather than merely an increase in the companies' liabilities for asbestos-only claims. "I don't know that verdict sizes have increased in the last few years, but they are often the result of insurance company stupidity," Kazan said. "Often a win for a defendant is not a win because it spent a lot" to defend a case. ASBESTOS UPDATE: More Fibro Discovered at Heanor Memorial Hospital ------------------------------------------------------------------ Caroline Jones, writing for Derby Telegraph, reported that more asbestos has been discovered at Heanor Memorial Hospital, in Derbyshire, United Kingdom. Deadly dust was first discovered in the boiler room in the basement of the hospital during a routine inspection by staff. The hospital was closed and specialists were called in to remove the asbestos from the building but, in the process, further dust was found in other parts of the building. This includes asbestos debris and asbestos cement shutter board in the heating pipework ducts, found within the floors of the wards. It means clinics and services which had been moved temporarily to Ilkeston Community Hospital will continue to be run from there for the time being. Physiotherapy services -- which are housed in a separate part of the Heanor site -- remain there. William Jones, director of operations for Derbyshire Community Health Services -- which runs the hospital -- said: "We asked for asbestos refurbishment survey to get a clear picture of the likelihood of any further asbestos being present. "That survey has now been presented to us and identifies the presence of asbestos in numerous parts of the building. "We want to stress that these subsequent findings of asbestos are safely contained and not airborne and it remains the case that there has been no risk to patients or visitors." Mr Jones said one other problem was that the hospital was already due for modernisation of its heating and electrical systems. He said talks were ongoing with health bosses about the "best way forward". Mr Jones said: "The extensive presence of asbestos, which compounds the defects previously identified, will make the necessary upgrading of the hospital's infrastructure -- including a new heating system, rewiring, fire alarm systems and telecommunications -- more complex and expensive." It is not yet known when the hospital will be re-opened. ASBESTOS UPDATE: Lumberton Man Gets Over 3 Years in Fibro Case -------------------------------------------------------------- Angelo Fichera, writing for Courier-Post, reported that a Lumberton, New Jersey man was sentenced to 3 and a half years in prison for hiring workers to improperly remove asbestos from a Philadelphia warehouse. Gene Cornell Smith was found guilty of conspiracy and violating the federal Clean Air Act in January. Smith, 46, bought an old construction warehouse on Stenton Avenue in the city's Logan section in 2007. The structure contained a large boiler and pipes, both of which were covered in insulation that contained asbestos. After receiving an estimate for professional work to remove the material, Smith recruited a co-conspirator, Clarence Cole, to hire unqualified workers who ripped out the contaminated materials without safety equipment, the U.S. Attorney's Office said in a release. ASBESTOS UPDATE: Expert Pushes for Controlled Ban on Deadly Dust ---------------------------------------------------------------- Roderick L. Abad, writing for Business Mirror, reported that concerns about the health risk on the use of asbestos in the country and the hardline stance of various advocacy groups for its ban have been allayed by a toxicology expert. Dr. David M. Bernstein, a consultant in toxicology, said that asbestos is a very valuable product being used in many countries, including the Philippines. Attributing the lack of knowledge on asbestos as the main reason to strong opposition on its use, he advised the public that "there's no reason to panic" prior to the three-day seminar at the 6th Asian Asbestos Initiative (AAI) International in Manila, which concluded on November 15. Organized by the World Health Organization (WHO) with the Philippines's Department of Health and the Department of Labor and Employment as host, the AAI meeting discussed strategic approaches toward elimination of asbestos-related diseases. Contrary to this event, however, it was preceded by a gathering of major players from the asbestos industry in Southeast Asia led by the Association of Chrysotile Industry of the Philippines held on October 25 in Makati to promote chrysotile as a safe form of asbestos to invited guests, including key government officials, academicians, journalists, politicians and construction industry contractors. The meeting was condemned by ban-asbestos advocates from around the world and the country's Associated Labor Unions, Building Wood Workers International, along with other advocacy groups and individuals. According to Bernstein, "The contradicting views on asbestos could be attributed to a fact that it is generally known as a technical term rather than a trade name of a group of natural minerals whose crystals occur in fibrous forms." With this, he said that the public should be educated on the differences between its two forms and the types of fibers they possess. "There are two minerals called asbestos. One is called chrysotile. The other is amphibole," he stressed, while noting their differences in chemical composition, acid-resistant properties and effects on health. The chrysotile (white asbestos), he said, is made out of a sheet comprised of magnesium and silica. Because it's so thin at 8 Angstroms, he noted that it's actually a very fragile material and soluble in acid. In contrast, he said that amphibole (blue and brown asbestos) is a solid block of silica that makes it insoluble either in water or acid. Since it persists in the lungs after inhalation and could not be eliminated in the body, he cited scientific evidence showing that it's mainly responsible for mesothelioma (cancer of the pleural cavity) and pulmonary diseases, and could cause illness even after short exposure. With amphibole's hazardous effect to the health, this kind of asbestos has been totally banned worldwide, unlike chrysotile which, according to Bernstein, is still used in "80 percent of the world." The Philippines, for instance, annually imports from Canada, Brazil, South Africa and China up to 6,000 metric tons of chrysotile. This, nevertheless, is smaller compared to Malaysia and Thailand that import up to 10 times that amount. Apart from brake linings for the country's automobile industry, chrysotile is mainly used as a raw material in fiber cement boards, which is a cheaper, non-corrosive, durable, as well as fire-, water-, termite-, rust- and warp-proof alternative to plywood. Such kind of asbestos poses a little risk to the people's health and environment as its fibers are firmly locked in or enclosed within the cement matrix during production process which, in turn, could not be emitted into the atmosphere once used. While there have been no known medical studies or statistics supporting that it causes health maladies in the country, Bernstein said that a ban on its use would create a number of impacts. For one, he said that using other materials as substitutes for chrysotile does not mean they are risk-free. He pointed out recent studies have found out that other fibers used as substitutes for it have been equally or even riskier, such as fiber glass, rock wools, aramid fibers and refractory ceramic fibers. "Logically from a health point of view, you may be introducing something which is worse or far worse, adding that in tropical countries like the Philippines, they are more expensive and less efficient," said Bernstein. As for its economic effects, the ban on chrysotile could lead to loss of jobs to workers in its manufacturing plants. What's more, Bernstein stressed that it would result in litigation cases demanding not only hefty amounts of compensation from defendant companies but also big payments from the government. Citing positions of experts convened by the WHO and the International Labor Organization in the past, Bernstein is for controlled use and not a ban on chrysotile. "And today, any industry whether mining, cement, automotive, construction, etc., understands that it's sensible to do controlled use of it; to have clean work environments; and to have safety for their workers. It's an issue which has become in the forefront today of our society," stressed Bernstein. ASBESTOS UPDATE: NHS Treatment Cost Recovery Bill Voted into Law ---------------------------------------------------------------- BBC News reported that a bill to recover the costs of treating Wales asbestos patients from businesses or insurers has been passed by assembly members. It is estimated the new law could raise up to GBP1m a year for the Welsh NHS. The bill's sponsor, Labour AM Mick Antoniw, said it would help people whose lives had been blighted by "this terrible disease". The insurance industry has raised concerns, questioning whether the move is within the assembly's powers. Before becoming an assembly member, Mr Antoniw was a solicitor at the legal firm which has acted for many asbestos victims and their families. Speaking before the bill was passed, he said: "It is only right that medical costs incurred by the NHS should be recovered from those who caused the disease and used to give more support to asbestos victims and their families -- for example, a cancer nurse costs GBP50,000 per annum. "We could employ an additional 20 cancer nurses or a mixture of cancer nurses and counsellors or additional research into the cause and treatment of asbestos disease. "It is my belief this new Welsh law can make a significant improvement to the quality of life of those whose life is blighted by this terrible disease." Last December assembly Presiding Officer Rosemary Butler certified that the bill was within the institution's powers, but admitted it was a "finely balanced" decision on some aspects of the legislation. The Association of British Insurers (ABI) wrote to her and the secretary of state for Wales with a number of what it called "serious concerns" about the bill's lawfulness. ASBESTOS UPDATE: Plymouth Lawyer Predicts Fibro Cancer Death Spike ------------------------------------------------------------------ William Telford, writing for Plymouth Herald, reported that pay- outs for people suffering from asbestos-related illness are hitting figures as high as GBP92,500, a leading Plymouth, United Kingdom lawyer says. Russell Pearce, head of dispute resolution and personal injury at Bretonside-based Gard & Co, also said a recent study suggests there will be a spike in asbestos-related deaths in 2016. This is because UK workers were exposed for longer periods to brown asbestos (amosite) than in other countries during the 1980s. Health and Safety Executive figures show 373 Plymouth men died from mesothelioma -- a type of lung cancer caused by exposure to asbestos -- between 1981 and 2005. Mr Pearce is now backing a proposal for a specialist court to be set up devoted to asbestos-related claims. "The disease can take 30 to 40 years to develop and this often causes difficulties in identifying the correct insurance company, given the period of time that has elapsed since exposure," Mr Pearce said. "The Government is in the process of introducing legislation changing the way in which claims are brought. "A Government fund is being proposed that would pay the sufferer 75 per cent of the value of the claim if the defendant insurer cannot be traced. "A new web-based system is also being considered to speed up the process. There is controversy as to the benefits of such change." Mr Pearce supports the alternative proposal, a specialist court, and said: "This would ensure speedy and informed justice." He added: "Awards for pain and suffering range from GBP51,500 to GBP92,500, depending on the duration and severity of the symptoms. "Claims can also be made for care and assistance provided to the sufferer by relatives and dependants. "There are some life-prolonging treatments available to sufferers, but often their main concern is to ensure future financial support and assistance for their family and loved ones." Last year Plymouth was highlighted as one of the UK's worst hotspots for asbestos-related diseases. It is likely this is because the substance was heavily used as insulation in ships and dockyard workers and servicemen may have been exposed during fitting-out and ship-breaking. Although it is now illegal to use asbestos, a ban was only imposed in 2000. Mr Pearce said mesothelioma could affect not only the sufferer himself but the worker's family if, for example, fibres have been brought into the home. "A recent study suggested there would be a spike in deaths in 2016," Mr Pearce said. "Expertise in diagnosis has improved so doctors are now more likely to accurately identify cases. A conclusive diagnosis is essential to making a successful claim. The focus then shifts to obtaining the necessary evidence to positively identify the correct defendant. "Tragically, it appears such claims will be around for the next 20 years or so as results of the dormant disease continue to come to light." ASBESTOS UPDATE: Specialists to Clear Toxic Dust From Tuam St. -------------------------------------------------------------- Georgina Stylianou, writing for stuff.co.nz, reported that asbestos will be removed from the former Christchurch civic building in Tuam St while a neighbouring site continues to be dampened down after contamination hot spots were identified. The multi-storey building was occupied by the Christchurch City Council from 1980 until 2010 and was recently sold to the Central Christchurch Development Unit as the land is earmarked for the new inner-city bus interchange. Earlier this month, preliminary testing of an adjoining vacant site identified isolated traces of asbestos in the soil between Lichfield St and Struthers Lane. Ceres New Zealand was awarded the demolition contract for the Tuam St building and the Canterbury Earthquake Recovery Authority (Cera) is managing the project. A Cera spokeswoman confirmed the building contained the potentially lethal substance as well as lead-based paint. "That will have to be disposed of properly too," she said. Both hazards were "normal things" expected of many buildings constructed before the mid-1980s. Specialists would be handling the removal of all hazardous substances, she said. Meanwhile, an asbestos investigation had been conducted on the vacant land and the report was due back this week. Staff would then be able to decide how to remediate the land, she said, but in the meantime sprinklers continued to keep the site damp to minimise dust. ASBESTOS UPDATE: Asons Warn of Fibro Exposure After Widow Payout ---------------------------------------------------------------- Clive Beck, who died at the age of 71, claimed he had been exposed to asbestos while teaching history at Ratton School in Eastbourne, between 1972 and 1998. As reported by the Eastbourne Herald and The Argus, Mr Beck died 18 months after being diagnosed with mesothelioma, an incurable form of lung cancer. It is alleged, that the hazardous material was within the shelves of a cupboard, used by Mr Beck to store books and equipment. Mrs Beck spoke of her relief after securing justice from East Sussex County Council, she stated: "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." Commenting on the news, Thomas Fairclough, Executive at Asons Solicitors, said that: "An asbestos related illness like Mesothelioma can lead to a slow, painful death, and it can take up to 40 years for the symptoms to present themselves." "According to the HSE statistics, 183 teachers and lecturers died from mesothelioma between 1980 and 2000. Asbestos exposure is not limited to those in the building trade." "If Mr Beck had been exposed to asbestos, as a result of his employment, it is unjust that measures were not taken to protect his welfare, and that of his colleagues, who may also have been exposed to asbestos, whilst working at Ratton School." Asons Solicitors have a dedicated team of industrial disease specialists, dealing with cases of asbestos related diseases; giving people legal advice, particularly in the area of mesothelioma claims. Exposure to asbestos can be deadly, and Asons urge anyone who feels they may have been exposed to asbestos fibres to consult their GP immediately for a consultation, and contact an industrial disease specialist for legal representation. Asons Solicitors suggest that if someone would like to learn more about the industrial disease compensation process, or if they would like to better understand the condition, that information is available at http://www.asons.co.uk,or via an expert helpline on 01204 521 133 About Asons Solicitors: Asons Solicitors is a Bolton-based law practice that specialises in personal injury and industrial disease claims. Founded by brothers Imran Akram and Kamran Akram, Asons Solicitors has developed to become a young and dynamic law firm that delivers practical solutions to clients in times of difficulty. Their continued focus on their staff has seen them awarded with the Investors in People "Gold Award"; which is reflected in the professional and personable approach they take in working with clients. They strive to grow and to develop, and their supportiveness and attention to detail ensures that their clients use them time and again. ASBESTOS UPDATE: Mesothelioma Research Takes a Hit -------------------------------------------------- Tim Povtak, writing for Asbestos.com, reported that the future of the National Mesothelioma Virtual Tissue Bank is in jeopardy after its federal funding was eliminated earlier this year, sending researchers scrambling to find other options. As part of a budget-cutting move, the National Institute of Occupational Safety and Health (NIOSH) and Centers for Disease Control eliminated the annual grant of more than $1 million, delivering a serious blow to future mesothelioma research. Mesothelioma is the rare, but aggressive cancer caused by exposure to asbestos. There is no cure and there are few treatment options, but recent advancements have been made despite minimal research funding. "For a lot of people now, this will make research even more difficult," said Michael Feldman, M.D., PhD, respected professor of Pathology and Laboratory Medicine at the University of Pennsylvania School of Medicine. "This was not good." The National Mesothelioma Virtual Bank (NMVB) was the only federally funded program specifically designed for mesothelioma research, receiving similar funding amounts annually since 2006. Many of the other grants from the CDC were reduced in the 2013 budgeting, but the NMVB grant was eliminated totally. The CDC had rewarded the NMVB in 2011 with a five-year renewal of the grant, which was expected to take it through 2016. Then the federal budget cuts hit, and funding was dropped. "We expected to take a cut and see funding reduced. Everyone is tightening their belt these days," said Feldman, a member of the Research Evaluation Panel for the NMVB. "But to just have it yanked with virtually no warning, it was pretty shocking." Collaborative Effort The NMVB is a collaborative effort involving the University of Pittsburgh, New York University, the University of Pennsylvania, Mount Sinai School of Medicine and the Mesothelioma Applied Research Foundation. It is designed to provide annotated mesothelioma biospecimens that are available to researchers from around the world. Throughout the past seven years, those biospecimens have been used for clinical, scientific and translational research to advance mesothelioma pathophysiology. The goal has been to speed the development of preventative measures, and help develop novel therapeutics to fight the disease. That fight just became harder. Mesothelioma researchers anywhere were eligible to apply for NMVB tissue specimens. There are more than 1,300 biospecimens in the Tissue Bank today and more than 1,100 annotated cases available. The belief was that researchers at every level and from every discipline could benefit from the shared resources, and spark new ideas. The goal of the Bank was to make it a national model and tissue-banking leader. There are other mesothelioma tissues banks on both the West and East coast, but none that promoted the open- to-all availability. Future Plans On Hold The NMVB is based at the University of Pittsburgh School of Medicine and under the direction of Michael Becich, M.D. PhD, chairman of the Department of Biomedical Informatics. Without the annual grant from the CDC, no new specimens will be added, access will be reduced, and researchers will have to pay for anything they are provided. Among the original advantages of using the NMVB was a continued annotation of mesothelioma biospecimens. It included epidemiologic, demographic and clinicopathologic follow up and recurrence data. Specimen collection was expected to expand with the potential addition of new collaborating academic medical centers. The specimen types available to researchers were fresh frozen tissues, blood products, tissue microarray with clinical data annotation and paraffin embedded blocks. "These kind of things are not super sexy, but they are the building blocks for research," Feldman said. "They are very important in terms of making progress. It becomes a little harder now." ASBESTOS UPDATE: Two New Suits Added to St. Clair County Docket --------------------------------------------------------------- Kelly Holleran, writing for The Madison-St. Clair Record, reported that another two asbestos lawsuits have been added to St. Clair County's asbestos docket. Colin Crumpton filed an asbestos lawsuit Nov. 5 in St. Clair County Circuit Court against 75 defendant corporations while Lavail Gulledge filed another one Nov. 5 against 68 defendant corporations on behalf of her father, Bobby Gulledge. Crumpton does not specify where he resides, but Lavail Gulledge says she lives in Vancleave, Miss. Both Crumpton and Lavail Gulledge are represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. In their complaints, Crumpton and Lavail Gulledge allege the defendant companies caused them or their deceased relatives to develop lung cancer after their exposure to asbestos-containing products throughout their careers. Crumpton worked as an electrician aboard the USS Stribling-DD867 from 1962 until 1964, as an electrician at Georgia Power Harllee from 1964 until 1965, as an electrician at Brosman Yard Rail Road from 1964 until 1966, as an electrician at Sinclair Office Building in 1967, as an electrician at Georgia Kraft in 1968 and as an electrician at Pabst Blue Ribbon Refinery from 1968 until 1970, according to the complaint. Bobby Gulledge worked as a boiler tender in the U.S. Navy from 1955 until 1958, as a self-employed mechanic from 1958 until 1975, as a pipefitter at Ingall's Shipyard from 1975 until 1979 and from 1985 until 2001, as a pipefitter at BAE Systems Shipyard from 1979 until 1980, as a pipefitter at Avondale Shipyard from 1980 until 1983 and as a self-employed roofer from 1983 until 1984. 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 their asbestos-related diseases, Crumpton and Bobby Gulledge 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 addition, Gulledge died on Aug. 4, 2012, according to the complaint. In his 11-count complaint, Crumpton is seeking a judgment of more than $200,000, economic damages of more than $150,000, compensatory damages of more than $50,000, punitive and exemplary damages of more than $100,000 and other relief the court deems just. In her complaint, Lavail Gulledge is seeking economic damages of more than $200,000, a judgment of more than $100,000, punitive and exemplary damages, compensatory damages of more than $100,000 and other relief the court deems just. St. Clair County Circuit Court case numbers: 13-L-564, 13-L-563. ASBESTOS UPDATE: NYC Court Dismisses Crane Co. From Exposure Suit ----------------------------------------------------------------- HarrisMartin Publishing reported that a New York trial court has dismissed asbestos claims asserted against Crane Co., ruling that the plaintiff had failed to establish that he was exposed to asbestos in the defendant's product. Without more evidence linking the defendant's valves to the vicinity in which the former seaman worked, the plaintiff's claims are speculative, the New York Supreme Court for New York County ruled on Nov. 13. Plaintiff Donald Tobin asserted the claims, contending that he developed pleural mesothelioma as a result of exposure to asbestos while serving in the U.S. Navy as a seaman and storekeeper. ASBESTOS UPDATE: Wis. Trial Court "Erroneously" Rewrote Verdict --------------------------------------------------------------- HarrisMartin Publishing reported that a Wisconsin appellate court has reversed a trial court's decision to "rewrite" a jury verdict in an asbestos case involving mesothelioma and lung cancer claims asserted by a smoker. In the Nov. 19 decision, the Wisconsin Court of Appeals, District I, said that if the trial court was concerned that the jury's decision wrongfully accounted for the plaintiff's smoking history, it should have asked the jury to resume deliberations or ordered a new trial. Instead, the trial court "erroneously rewrote" the jury's decision, the appellate court ruled. The plaintiffs contend that Steven Lemberger was exposed to asbestos. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *