/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/131220.mbx C L A S S A C T I O N R E P O R T E R Friday, December 20, 2013, Vol. 15, No. 252 Headlines 201 PARKWAY: Sued by Doormen Over Unpaid Overtime Compensation ADVANTAGE HEALTH: Recalls Organic Traditions Chocolates AMARIN CORP: Faces "Sklar" Securities Class Suit in New Jersey AMAZON.COM INC: Removes "Pavuk" Class Suit to M.D. Pa. AMERICAN COLLECTION: Violates Fair Debt Collection Act, Suit Says AMERELLA/RUNNORTH: Recalls Kitty Nunu Blankets and Hat/Booties APPLEBEE'S: Judge Enforces Arbitration Clause in Class Action ASIANA AIRLINES: Discovery in July Crash Lawsuits Set to Begin AURORA IMPORTING: Recalls Corn Gnocchi Due to Undeclared Gluten BRANCH BANKING: Removes "Rudd" Suit to N.D. Ala. BUFFETS INC: Removes "Walter" FLSA Violation Suit to S. Carolina CANADIAN TIRE: Recalls Mastercraft Multimeter Kit CAPITAL ONE: Mayer Brown Discusses Class Action Ruling CAPITAL MANAGEMENT: Attempts to Collect Alleged Debts, Class Says CBE GROUP: Violates Fair Debt Collection Practices Act, Suit Says CHRYSLER GROUP: Recalls 1,424 Trucks Due to Transmission Failure COMCARE: Helen Polley Staff Members Mull Bullying Class Action COMEAU'S SEA: Recalls Salmon Products Due to Undeclared Mustard CROSSLANDS CORPORATE: Accused of Employing Illegal Pay Practices CROWN BOLT: Sued by Assistant Support Project Managers in N.Y. DORSEY MARKETING: Recalls Carnaby Sweet Brand Candies FAIRFAX COUNTY, VA: Fire Captains Seek Back Pay & Unpaid Overtime FRESH ADVANCEMENTS: Recalls Certain Organic Girl Green Onions GLOBAL CREDIT: "Mendelsohn" Suit Alleges Violations of FDCPA HARVARD COLLECTION: Accused of Violating Fair Debt Collection Act ISLAND'S END: N.Y. Class Seeks to Recover Overtime Compensation LUMBER LIQUIDATORS: Faces Class Action Over Chinese Wood Flooring LUMBER LIQUIDATORS: Glancy Binkow Files Securities Class Action MERCANTILE BANK: Faces Minority Discrimination Class Action MICRON TECHNOLOGY: Pays in Full $67M Accord in Price-Fixing Suit MICRON TECHNOLOGY: Settled DRAM Price-Fixing Lawsuits in Canada MUELLER INDUSTRIES: Settlement Okayed in Extruded Metals Suit PRESSLER & PRESSLER: Accused of Violating FDCPA in New Jersey PROCTER & GAMBLE: Judge Trims Pringles Trans Fat Labeling Suit SOUTHEAST SUPREME: Class Seeks to Recover Unpaid Back Wages STEVEN COHEN: Accused of Violating Fair Debt Collection Act TOYOTA MOTOR: Attorney Asks Judge to Establish Settlement Process UNITED STATES: NSA Surveillance Likely Violates Privacy Rights YOUR FITNESS DISH: Quinola Quinoa Granola Recalled Over Allergen * Mintz Levin Discusses Food Mislabeling Class Action Rulings * Morrison Ruling to Cause Uptick in Securities Suits in Australia * Recent Class Actions Cast Spotlight on GINA Privacy Laws Asbestos Litigation ASBESTOS UPDATE: Lonza's Conalco Files to Deal with Asbestos Suits ASBESTOS UPDATE: Specialty Products Judge Could Rethink Deadline ASBESTOS UPDATE: Mo. Solons To Limit Medical Malpractice Suits ASBESTOS UPDATE: AK Steel Workers Can Sue Over Mesothelioma ASBESTOS UPDATE: Magnetek Inc. Continues to Defend PI Suits ASBESTOS UPDATE: American Locker Continues to Defend 32 Cases ASBESTOS UPDATE: Metropolitan Life Continues to Defend PI Suits ASBESTOS UPDATE: Park-Ohio Industries Continues to Defend Suits ASBESTOS UPDATE: Administrative Suit v. EEI Unit Remains Pending ASBESTOS UPDATE: Tyco Records Loss Related to Yarway Ch. 11 ASBESTOS UPDATE: IntriCon Continues to Defend Exposure Suits ASBESTOS UPDATE: NY Court Allows Joint Trial for 10 PI Cases ASBESTOS UPDATE: NY Court Partly Junks PI Suit v. Islanders ASBESTOS UPDATE: Calif. Court Affirms Order Dismissing "Hill" Suit ASBESTOS UPDATE: "McKay" Suit v. ConEdison to Proceed to Trial ASBESTOS UPDATE: Texas Court Junks Principal's Whistleblower Suit ASBESTOS UPDATE: "Clayton" Suit Remanded to NY State Court ASBESTOS UPDATE: "Perry" Suit v. Railroad Friction Products Nixed ASBESTOS UPDATE: Ford Summary Judgment Bid in "Barawa" Suit Denied ASBESTOS UPDATE: Calif. Inmate's Suit Continues v. Supervisors ASBESTOS UPDATE: "Fuhrman" PI Suit Remanded to Calif. Court ASBESTOS UPDATE: Fibro Taking a Toll on Firefighters, Study Says ASBESTOS UPDATE: Fibro Testing, Removal Planned for High School ASBESTOS UPDATE: MP Highlights Case of Fibro Killing Family ASBESTOS UPDATE: MDL Court Awards Summary Judgment to 3 Companies ASBESTOS UPDATE: 2nd Geologist Confirms Fibro at Proposed Mine ASBESTOS UPDATE: Probe Conducted After Fibro Scare at Bechtel Site ASBESTOS UPDATE: RFPC Dismissed From Suit, Claims Preempted by LIA ASBESTOS UPDATE: Family Faces Eviction From Fibro-Infested Home ASBESTOS UPDATE: New Hope for Ill Workers After UK Gov't U-Turn ASBESTOS UPDATE: Northern Sun Completes Timmins Site Remediation ASBESTOS UPDATE: Fibro Victim's "Second Wave" Fear ASBESTOS UPDATE: UK Teacher's Death Prompts Fibro Warning ASBESTOS UPDATE: Lead Paint, Fibro Found in Dawson City Bank ASBESTOS UPDATE: Lawyers Hail UK Government Rejection of Reforms ASBESTOS UPDATE: Mernda Cleanup Begins After Fibro Contamination ASBESTOS UPDATE: Advocacy Group Calling on Pay for N.L. Miners ASBESTOS UPDATE: Demolition Work Agreed for Ilfracombe Bus Station ASBESTOS UPDATE: Deadly Dust Found Outside Blackpool School ASBESTOS UPDATE: GTAC Says Toxic Dust Merely Issues in Media ASBESTOS UPDATE: UK Court to Rule on NHS Treatment Cost Recovery ASBESTOS UPDATE: Residents Say They Were Not Told About Removal ASBESTOS UPDATE: Warning Issued to Schools After Safety Errors ASBESTOS UPDATE: Kent Cigarettes Contributed to Man's Mesothelioma ASBESTOS UPDATE: Pa. Man Receives $2.3MM Award in Mass Tort Case ASBESTOS UPDATE: Derelict Fibro Shacks to Come Down ASBESTOS UPDATE: Petition Aims to Build Mesothelioma Program ASBESTOS UPDATE: Calif. Court Rejects BorgWarner's Motions ASBESTOS UPDATE: Air Pollution Permit Not Needed for Mine ASBESTOS UPDATE: Solon's Suit Makes Second Wave of Fibro Claims ASBESTOS UPDATE: Toxic Dust Troubles Binghamton Schools ASBESTOS UPDATE: Fibro-Tainted Donated Soil Is Headache for Parish ASBESTOS UPDATE: Special Electric Disregarded End Users, Doc Says ASBESTOS UPDATE: Used Drilling Mud Dumped in Calif. Central Valley ASBESTOS UPDATE: Senate Receives Bankruptcy Trust Legislation ASBESTOS UPDATE: Calif. Court Awards Judgment to Pneumo Abex ASBESTOS UPDATE: Daughter Launches Appeal for Dad's Colleagues ********* 201 PARKWAY: Sued by Doormen Over Unpaid Overtime Compensation -------------------------------------------------------------- Dwight Gibson, individually, and on behalf of all others similarly situated v. 201 Parkway Associates, LP and Mitchell Fine, as General Partner, Case No. 1:13-cv-06091-SJ-CLP (E.D.N.Y., November 1, 2013) seeks to recover overtime compensation for the Plaintiff and his similarly situated co-workers, who are doormen and who have been employed by the Company in the state of New York. 201 Parkway Associates, LP is a New York limited liability company headquartered in Brooklyn, New York. Mitchell Fine is either the sole or the majority shareholder of the Company. The Plaintiff is represented by: Donald J. Cayea, Esq. DONALD J. CAYEA & ASSOCIATES, P.C. 150 Motor Parkway, Suite 401 Hauppauge, NY 11788 Telephone: (646) 824-7000 E-mail: cayea@aol.com ADVANTAGE HEALTH: Recalls Organic Traditions Chocolates ------------------------------------------------------- Starting date: December 10, 2013 Type of communication: Recall Alert sub-type: Updated Food Recall Warning (Allergen) Subcategory: Allergen - Milk Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Advantage Health Matters Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 8501 The Food Recall Warning issued on December 6, 2013 has been updated to include additional codes. This additional information was identified during a food safety investigation. Advantage Health Matters is recalling Organic Traditions brand Dark Chocolate Hazelnuts and Dark Chocolate Almonds from the marketplace because they contain milk which is not declared on the label. People with an allergy to milk should not consume the recalled products described below. The products that have been sold nationally include: -- 227 g. Dark Chocolate Hazelnuts with UPC 8 54260 00701 5; -- 100 g. Dark Chocolate Hazelnuts with UPC 8 54260 01400 6 -- Sold in Bulk* Dark Chocolate Hazelnuts with no UPC; -- 227 g. Dark Chocolate Hazelnuts with Chili with UPC 8 54260 00703 9; -- 100 g. Dark Chocolate Hazelnuts with Chili with UPC 8 54260 01450 1; -- Sold in Bulk* Dark Chocolate Hazelnuts with Chili; -- 227 g. Dark Chocolate Almonds with UPC 8 54260 00705 3; -- 100 g. Dark Chocolate Almonds with UPC 8 54260 01500 3; -- Sold in Bulk* Dark Chocolate Almonds; -- 227 g. Dark Chocolate Almonds with Chili with UPC 8 54260 00707 7; -- 100 g. Dark Chocolate Almonds with Chili with UPC 8 54260 01550 8; -- Sold in Bulk* Dark Chocolate Almonds with Chili If you have an allergy to milk, do not consume the recalled products as they may cause a serious or life-threatening reaction. There have been no reported reactions associated with the consumption of this product. The recall was triggered by Canadian Food Inspection Agency (CFIA) test results. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high- risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled products from the marketplace. AMARIN CORP: Faces "Sklar" Securities Class Suit in New Jersey -------------------------------------------------------------- Steven Sklar, on behalf of himself and all others similarly situated v. Amarin Corporation plc and Joseph S. Zakrzewski, Case No. 3:13-cv-06663-FLW-TJB (D.N.J., November 1, 2013) is brought on behalf of all persons or entities, who purchased shares of Amarin common stock during the period July 9, 2009, through October 15, 2013, to recover damages caused by the Defendants' alleged violations of the federal securities laws. Amarin is a British corporation, headquartered in Dublin, Ireland, with U.S. offices in Bedminster, New Jersey. Amarin is a biopharmaceutical company focused on the commercialization and development of therapeutics to improve cardiovascular health. Vascepa(R) (icosapent ethyl) is Amarin's first FDA-approved product and is available in the United States by prescription. Joseph S. Zakrzewski is the Chairman and Chief Executive Officer of Amarin, having joined Amarin in January 2010. The Plaintiff is represented by: Jeffrey W. Herrmann, Esq. COHN LIFLAND PEARLMAN HERRMANN & KNOPF LLP Park 80 Plaza West - One Saddle Brook, NJ 07663 Telephone: (201) 845-9600 E-mail: jwh@njlawfirm.com - and - Robert C. Finkel, Esq. Lester L. Levy, Esq. Natalie M. Mackiel, Esq. WOLF POPPER LLP 845 Third Avenue, 12th Floor New York, NY 10022 Telephone: (212) 759-4600 E-mail: rfinkel@wolfpopper.com llevy@wolfpopper.com nmackiel@wolfpopper.com The Defendants are represented by: Allison M. Wuertz, Esq. KATTEN MUCHIN ROSENMAN LLP 575 Madison Avenue New York, NY 10022 Telephone: (212) 940-6675 E-mail: allison.wuertz@kattenlaw.com AMAZON.COM INC: Removes "Pavuk" Class Suit to M.D. Pa. ------------------------------------------------------ The purported class action lawsuit captioned Kelly Pavuk, on behalf of herself and others similarly situated v. Amazon.com, Inc., Amazon.com DEDC, LLC, and Amazon.com DEDC, Inc., Case No. 2013-11565-0, in the Pennsylvania Court of Common Pleas for Luzerne County, was removed by the Defendants to the U.S. District Court for the Middle District of Pennsylvania (Scranton). The District Court Clerk assigned Case No. 3:13-cv-02698-MEM to the proceeding. The lawsuit alleges that the Defendants failed to comply with the requirements of the Pennsylvania Minimum Wage Act. The Plaintiff asserts claims on behalf of a putative class of other individuals, who have worked for the Defendants at their Hazleton, Pennsylvania Facility since October 3, 2010. The Defendants jointly operate a 630,000 square foot logistics facility located in Hazleton, Pennsylvania, where the Plaintiff worked. The Plaintiff is represented by: Todd J. O'Malley, Esq. O'MALLEY & LANGAN P.C. The O'Malley & Langan Building 201 Franklin Avenue Scranton, PA 18503 Telephone: (570) 344-2667 Facsimile: (570) 344-6199 E-mail: tomalley@omalleylangan.com - and - Peter D. Winebrake, Esq. R. Andrew Santillo, Esq. WINEBRAKE & SANTILLO, LLC Twining Office Center, Suite 211 715 Twining Rd. Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 E-mail: pwinebrake@winebrakelaw.com asantillo@winebrakelaw.com The Defendants are represented by: Michael J. Puma, Esq. Richard G. Rosenblatt, Esq. MORGAN LEWIS & BOCKIUS, LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5303 Facsimile: (877) 432-9652 E-mail: mpuma@morganlewis.com rrosenblatt@morganlewis.com AMERICAN COLLECTION: Violates Fair Debt Collection Act, Suit Says ----------------------------------------------------------------- Jessica Joseph, on behalf of herself and all other similarly situated consumers v. American Collection Systems, Inc., doing business as American Telecollect, Case No. 1:13-cv-06095-SLT-JO (E.D.N.Y., November 1, 2013) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com AMERELLA/RUNNORTH: Recalls Kitty Nunu Blankets and Hat/Booties -------------------------------------------------------------- Starting date: December 11, 2013 Posting date: December 11, 2013 Type of communication: Consumer Product Recall Subcategory: Children's Products Source of recall: Health Canada Issue: Choking Hazard Audience: General Public Identification number: RA-37163 Affected products: Pink soft touch Kitty Nunu with blanket (100% Baby) and Hat/Booties (100% Baby) The recall involves Pink soft touch Kitty Nunu with blanket and Hat/Booties with the Giant Tiger Brand 100% Baby. Styles and serial numbers included in the recall: Style Serial number Name/Description 2133185 656438 Pink soft touch Kitty Nunu with Blanket/ The blanket is pink and at one of the corners, there is a small stuffed cat with a bow on one of the ears 2133180 660676 Hat/Booties The hat/booties are pink with a cat design and on one of the ears there is a bow When pulling on the bow it can be detached from the ear, releasing a small part which can pose a choking hazard to small children. The company has received one report of an incident, where the bow was detached from the ear. No injuries have been reported. For some tips to help consumers choose safe toys and to help them keep children safe when they play with toys, see General toy safety tips. Approximately 1060 units of the pink soft touch Kitty Nunu with blanket (100% baby) and 1524 units of the Hat/Booties (100% Baby) have been sold in Canada at various Giant Tiger locations. The recalled products were manufactured in China and sold from October to November 2013. Companies: Distributor RunNorth/ Division of Amerella of Canada Ltd. Ville Mont Royal Quebec Canada Consumers should immediately stop using the recalled products and return them to where they were purchased. APPLEBEE'S: Judge Enforces Arbitration Clause in Class Action ------------------------------------------------------------- Saranac Hale Spencer, writing for The Legal Intelligencer, reports that despite expressing serious reservations, a federal judge in Philadelphia has enforced an arbitration clause between an employee and Applebee's, foreclosing the waiter from bringing his claim as a class action. U.S. District Senior Judge Berle Schiller of the Eastern District of Pennsylvania said he is bound by precedent to enforce the arbitration agreement. In his opinion, however, Judge Schiller agreed with the plaintiff that the contract requiring him to resolve any claims he has against Applebee's by himself, not as a class, through arbitration, not the courts, was unfairly stacked against him. "This current state of legal affairs is lamentable," Judge Schiller said. "Workers of Applebee's, as part of their desire to work, signed away their rights to bring a multitude of claims in court. Employers such as Applebee's hold all of the cards here; Applebee's can easily inform prospective applicants that if they do not like the terms of the deal, the applicants can just try to work in a different neighborhood. Its workers must therefore chew on a distasteful dilemma -- give up certain rights or give up the job." Signing the contract agreeing to arbitrate their claims is a condition for being hired, according to the opinion, captioned Walton v. The Rose Group. The Rose Group is a Pennsylvania management company that owns 39 Applebee's restaurants in the state. It required Charles Walton to sign a binding arbitration agreement, as it does with all of the people it hires to work in those restaurants. Mr. Walton has now alleged that the company's practice of paying wait staff below minimum wage because they earn tips, but requiring those workers to also perform duties for which they can't earn tips is a violation of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. Mr. Walton had wanted to bring the case as a class action. Applebee's, though, moved to stay the litigation and compel arbitration with Walton alone, not with a class -- Mr. Walton had agreed to waive his right to bring a class action when he signed the arbitration contract. Judge Schiller granted the request. "The increasing frequency with which these arbitration clauses and class action waivers are employed is unfortunate, and in many situations, unjust," Judge Schiller said. "There is a reason that arbitration is the favored venue of many businesses for deciding employment disputes, and it is not to ensure that employees are afforded the best chance to have their claims adjudicated by a judge or jury picked from the community. This court, however, is not at liberty to ignore the decisions of the United States Supreme Court and the Third Circuit Court of Appeals." Judge Schiller cited four cases -- the U.S. Supreme Court's 2011 case AT&T Mobility v. Concepcion, which killed a California rule that wouldn't recognize class action waivers if they were included in lopsided arbitration agreements, and the U.S. Court of Appeals for the Third Circuit's opinion in Quilloin v. Tenet HealthSystem that came the following year and was based on Concepcion. The judge also cited the U.S. Supreme Court's affirmation of class action waivers, made earlier this year in American Express v. Italian Colors Restaurant, in which the court rejected the argument that it would be cost-prohibitive for the merchants who were seeking to sue American Express as a class to arbitrate on an individual basis. Judge Schiller also cited to the U.S. Supreme Court's 1991 opinion in Gilmer v. Interstate/Johnson Lane that established that the Federal Arbitration Act requires courts to compel arbitration where an arbitration clause has been signed. "Viewed collectively, Concepcion, ItalianColors, Gilmer, and Quilloin point this court to one conclusion: The collective action waivers of the FLSA are not substantively unconscionable here," Schiller said. The judge had found, however, that the arbitration clause was procedurally unconscionable. But in order for an arbitration agreement to be unenforceable, it must be both procedurally and substantively unconscionable, he said. The major contributors to the finding that the contract was procedurally unconscionable was that it was presented by Applebee's as a "take-it-or-leave-it proposal," meaning that Mr. Walton wouldn't have a job that he needed if he didn't sign the contract, and that the two parties to the contract were not on equal footing. "On one side is The Rose Group, a restaurant management behemoth, ready to devour the college dropout desperately in need of a job," Judge Schiller said. Even so, Mr. Walton didn't have to give up anything by agreeing to arbitrate his claims instead of litigating them until the waiver of the class action component, Judge Schiller said. "Most of the time, the employer/employee relationship is a fruitful, congenial one, without incident," Judge Schiller said. "Employees do their work and cash their checks. Employers maintain decent working conditions and, they hope, run a successful business. "Moreover, when an incident does arise, it is often settled before resorting to an adversarial process. But there exist circumstances when the issues are too complicated, the parties are too upset, or too much is at stake -- in other words, when it really matters -- when a judge and jury need to step in. Unfortunately, mandatory individual arbitration often steps in to close the courtroom to those individuals who need to use the courts." ASIANA AIRLINES: Discovery in July Crash Lawsuits Set to Begin -------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that discovery is set to begin in nearly 50 lawsuits over last summer's Asiana Airlines Inc. crash after a judicial panel coordinated them for pretrial purposes before a federal judge in San Francisco. The July 6 crash of Flight 214 while landing at San Francisco International Airport killed three people and injured about 180. The U.S. Judicial Panel on Multidistrict Litigation on Dec. 13 ordered the cases, filed against both Asiana and The Boeing Co., which manufactured the 777 aircraft, coordinated before U.S. District Judge Yvonne Gonzalez Rogers. The MDL Panel acted following a hearing on Dec. 5 in Las Vegas. Boeing, Asiana Airlines and most of the plaintiffs attorneys with cases in San Francisco supported coordination before Judge Rogers, who is hearing a large number of the actions, while lawyers with cases in the Northern District of Illinois, home to Boeing's Chicago headquarters, opposed the move. On Nov. 4, Judge Rogers stayed discovery until the MDL panel could decide whether to coordinate. But she denied a request from Asiana to limit discovery until the National Transportation Safety Board completes its investigation. "Since plaintiffs cannot rely on the NTSB's probable cause finding, or any hearsay portions of its report, there is no reason to delay discovery until it completes its work," said Ronald L. M. Goldman -- RGoldman@BaumHedlundLaw.com -- a partner at Baum, Hedlund, Aristei & Goldman, in a prepared statement. His firm filed nine lawsuits on Nov. 27 on behalf of 14 injured passengers. "The victims who suffered deserve our prompt investigation and preparation of their cases." During a Dec. 11 hearing before the NTSB, Flight 214's pilot, Capt. Lee Kang Kuk, told investigators that he worried about making a visual landing while an automated navigation aid was out of service at San Francisco's airport. Following the hearing, Asiana issued a prepared statement: "This hearing was an important part of the investigation into the causes of this tragic accident. By examining and analyzing all the facts, the NTSB will undoubtedly help the aviation community learn from the incident." The suits, filed on behalf of injured passengers of Flight 214, claim that Asiana's flight crew was negligent -- and that Boeing was responsible for a defective warning system and automatic throttle that failed to alert pilots of the aircraft's decreasing speed during landing. Boeing and Asiana have denied the allegations. Meanwhile, on Dec. 16, U.S. District Judge Harry Leinenweber of the Northern District of Illinois remanded eight cases against Boeing to Cook County, Ill., Circuit Court. Citing "difficult jurisdictional questions," Judge Leinenweber rejected Boeing's argument that the cases should remain in federal court under U.S. admiralty and federal officer jurisdiction. "In this case, the tort was neither inevitable while the plane was over water nor completed when the plane was over water," he wrote. The ruling could make the MDL Panel's coordination order moot, said Michael Krzak -- MSK@CliffordLaw.com -- a partner at Clifford Law Offices in Chicago, which filed most of the Illinois cases. "Since they're remanded, there truly should be no MDL because there's not cases pending in multiple federal districts," he said. His firm plans to file a notice to Rogers about Judge Leinenweber's ruling. Without an MDL, he said, the cases could proceed toward discovery together on liability issues but separately on damages. AURORA IMPORTING: Recalls Corn Gnocchi Due to Undeclared Gluten --------------------------------------------------------------- Starting date: December 9, 2013 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Gluten Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Aurora Importing & Distributing Ltd. Distribution: Possibly National, Ontario, British Columbia, Alberta, Quebec, Manitoba Extent of the product distribution: Retail CFIA reference number: 8497 Affected products: -- 500 g. Aurora Corn Gnocchi with UPC 0 61659 01811 2 Aurora Importing & Distributing Ltd. is recalling Aurora brand Corn Gnocchi because it may contain gluten which is not declared on the label. People with sensitivities to gluten should not consume the recalled product. If you have sensitivities to gluten, do not consume the recalled product as it may cause a serious reaction. There has been one reported reaction associated with the consumption of this product. The recall was triggered by Canadian Food Inspection Agency (CFIA) test results. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high- risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled products from the marketplace. BRANCH BANKING: Removes "Rudd" Suit to N.D. Ala. ------------------------------------------------ Wells Fargo Bank, N.A. removed the purported class action lawsuit styled Rudd, et al. v. Branch Banking & Trust Company, et al., Case No. 01-CV-2013-903964, from the Circuit Court of Jefferson County, Alabama, to the United States District Court for the Northern District of Alabama, Southern Division, with the consent of the Co-Defendant identified in the complaint as either Branch Banking and Trust Company or BB&T Corporation, who also joins in the removal. The District Court Clerk assigned Case No. 2:13-cv- 02016-JEO to the proceeding. Plaintiffs Katherine M. Rudd and Tiffany Rudd Atkinson claim to be co-trustees of the J.W. Goodwin and Virginia M. Goodwin Grandchildren's Trust and purport to set forth claims for breach of fiduciary duty, breach of contract, negligence, willful or wantonness, misrepresentation, and suppression based upon BB&T's alleged co-trusteeship of the so-called Joy Goodwin Adams Irrevocable Trust dated January 2, 1987, and of the Joy Goodwin Adams Irrevocable Trust dated July 19, 1989, and upon Wells Fargo's alleged co-trusteeship of the Shares Trust and of the J.W. Goodwin Marital Trust f/b/o Virginia M. Goodwin created under the Last Will and Testament of J.W. Goodwin. BB&T is a North Carolina corporation headquartered in Winston- Salem, North Carolina. Wells Fargo is a national banking association and has designated Sioux Falls, South Dakota, as its main office in its articles of association. The Plaintiffs are represented by: Annemarie C. Axon, Esq. Oscar M. Price, III, Esq. Wesley Kyle Winborn, Esq. WALLACE JORDAN RATLIFF & BRANDT 800 Shades Creek Parkway, Suite 400 Birmingham, AL 35209 Telephone: (205) 870-0555 Facsimile: (205) 871-7534 E-mail: aaxon@wallacejordan.com oprice@wallacejordan.com wwinborn@wallacejordan.com The Defendants are represented by: Larry B. Childs, Esq. Michael A. Fant, Jr., Esq. WALLER LANSDEN DORTCH & DAVIS LLP AmSouth Harbert Plaza, Suite 1400 1901 Sixth Avenue North Birmingham, AL 35203 Telephone: (205) 214-6380 Facsimile: (205) 214-8787 E-mail: larry.childs@wallerlaw.com mike.fant@wallerlaw.com - and - Devin Clarke Dolive, Esq. Victor L. Hayslip, Esq. William J. Long, IV, Esq. BURR & FORMAN LLP 420 North 20th Street, Suite 3400 Birmingham, AL 35203 Telephone: (205) 251-3000 Facsimile: (205) 458-5100 E-mail: ddolive@burr.com vhayslip@burr.com jlong@burr.com BUFFETS INC: Removes "Walter" FLSA Violation Suit to S. Carolina ---------------------------------------------------------------- Lynn Walter, Lynn Brown, Kathlene Abston, individually and on behalf all others similarly situated v. Buffets, Inc. d/b/a Home Town Buffets, Ryan's, Old Country Buffet, Fire Mountain, Country Buffet, Case No. 13-cv-02860 PAM-SER (D. Minn.) alleges violations of the Fair Labor Standards Act and the wage-and-hour laws of Ohio by failing to pay its employees proper minimum and overtime wages. The Plaintiffs contend that these violations arise out of Buffets, Inc.'s company-wide policies, and pattern or practice of violating wage-and-hour laws. Buffets, Inc. is a privately held company with headquarters located in Eagan, Minnesota. Buffets, Inc. is the largest operator of buffet-style eateries in the US, with more than 400 locations in almost 40 states. The Company operates under the names HomeTown Buffet, Old Country Buffet, Ryan's Grill Buffet, Fire Mountain, and Country Buffet. The restaurants offer self- service buffets featuring entrees, sides, and desserts for an all- inclusive price. The Company removed the lawsuit on November 1, 2013, from the U.S. District Court for the District of Minnesota to the U.S. District Court for the District of South Carolina (Greenville). The South Carolina District Court Clerk assigned Case No. 6:13-cv-02995-JMC to the proceeding. The Plaintiffs are represented by: Rachhana T. Srey, Esq. NICHOLS KASTER 4600 IDS Center, 80 S. 8th St. Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 215-6870 E-mail: srey@nka.com - and - David A. Young, Esq. THE LAW FIRM OF DAVID A. YOUNG, LLC The Hoyt Block Building 700 West St. Clair Avenue, Suite 316 Cleveland, Ohio 44113 Telephone: (216) 621-5100 Facsimile: (216) 621-7810 E-mail: dyoung@davidyounglaw.com - and - Michael J.D. Sweeney, Esq. GETMAN & SWEENEY, PLLC 9 Paradies Lane New Paltz, NY 12561 Telephone: (845) 255-9370 Facsimile: (845) 255-8649 E-mail: msweeney@getmansweeney.com - and - Brian Matthew Lysell, Esq. CALLISON TIGHE AND ROBINSON PO Box 1390 Columbia, SC 29202-1390 Telephone: (803) 404-6900 Facsimile: (843) 404-6901 E-mail: brianlysell@callisontighe.com The Defendant is represented by: D. Michael Henthorne, Esq. LITTLER MENDELSON (COLA) 1201 Main Street, Suite 1930 Columbia, SC 29201 Telephone: (803) 231-2414 Facsimile: (803) 753-9875 E-mail: mhenthorne@littler.com - and - Jacob John Modla, Esq. LITTLER MENDELSON, PC 100 N Tryon Street, Suite 4150 Charlotte, NC 28202 Telephone: (704) 972-7000 Facsimile: (704) 973-9535 E-mail: jmodla@littler.com - and - Jeffrey A. Timmerman, Esq. LITTLER MENDELSON, PC 80 S 8th St., Suite 1300 Minneapolis, MN 55402-2136 Telephone: (612) 313-7610 Facsimile: (612) 630-9626 E-mail: jtimmerman@littler.com - and - Tracy Stott Pyles, Esq. LITTLER MENDELSON (OH) 21 East State Street, Suite 1600 Columbus, OH 43215 Telephone: (614) 463-4201 Facsimile: (614) 573-9803 E-mail: tpyles@littler.com CANADIAN TIRE: Recalls Mastercraft Multimeter Kit ------------------------------------------------- Starting date: December 11, 2013 Posting date: December 11, 2013 Type of communication: Consumer Product Recall Subcategory: Electronics Source of recall: Health Canada Issue: Suspected quality concern Audience: General Public Identification number: RA-37127 Affected products: Mastercraft Multimeter Kit The voluntary recall involves the Mastercraft Multimeter Kit identified by product number 52-0727. The affected multimeter kit includes a digital multimeter, non-contact voltage detector, socket tester, and test leads. This product is being voluntarily recalled as a precautionary measure due to concerns that the unit may not accurately detect voltage levels, posing a potential safety concern. Neither Health Canada nor Canadian Tire has received any reports of injury related to the use of this product. Approximately 8,835 units of the recalled multimeter kits were sold at Canadian Tire stores across Canada. The recalled multimeter kits were manufactured in China and sold from June 2013 to November 2013. Companies: Distributor Canadian Tire Corporation, Limited Toronto Ontario Canada Consumers should stop using the affected multimeter immediately and return it to their local Canadian Tire store for a refund. CAPITAL ONE: Mayer Brown Discusses Class Action Ruling ------------------------------------------------------ Kevin S. Ranlett, Esq. -- kranlett@mayerbrown.com -- at Mayer Brown reports that one of the more alarming recent developments in the class-action arena is the increase in actions by state attorneys general that mirror private class actions. These state AG actions aren't like the typical enforcement action, in which the government pursues claims for civil penalties that are distinct from the relief sought in the private class action. Instead, these are copycat actions in every sense of the word. The state AG seeks restitution or disgorgement that is equivalent to the remedies requested in the private class action. And increasingly, the state AG is handing over the reins entirely to class-action plaintiffs' lawyers, who sometimes get to call themselves "special assistant state attorneys general" -- and usually get a big chunk of the ultimate recovery. Mayer Brown has written before about this new breed of parens patriae action. But the firm wanted to focus on a different problem, which several Justices of the Supreme Court asked about during oral argument in Mississippi ex rel. Hood v. AU Optronics Corp. Specifically, the defendants targeted by these suits are being asked to pay damages twice for a single injury: JUSTICE GINSBURG: But now we have the consumers who were affected, they've already been paid [in the settlement of the private class action]. So how does it work for the Attorney General's suit? What is the impact of the class action that has already gone forward and been completed on the Attorney General's claim? CHIEF JUSTICE ROBERTS: What prevents attorneys general from around the country sitting back and waiting as private class actions proceed, and as soon as one settles or the plaintiffs' class prevails, taking the same complaint, maybe even hiring the same lawyers, to go and say, well, now we are going to bring our parens patriae action. We know how the trial is going to work out or we know what the settlement is going to look like, and we are going to get the same amount of money for the State? When asked about the fairness of this one-two punch, the lawyer for the Mississippi AG punted, suggesting that it is a matter of state law whether the judgment in the consumer class action could preclude a double recovery in the parens patriae action. But that cannot be the whole picture. There are strong arguments that principles of federal due process forbid states from authorizing that kind of double dipping by removing well- established claim preclusion (res judicata) protections. Those principles may also inform how state law approaches the question. Indeed, such arguments recently were successful in New Mexico ex rel. King v. Capital One Bank (USA) N.A. In that case, the New Mexico AG sought (among other things) restitution for New Mexico consumers who had subscribed to the defendant's payment-protection plans. Yet the defendant had already reached a nationwide class settlement that resolved privately brought consumer-protection claims seeking restitution for the amounts New Mexico consumers had paid for these plans. The district court agreed that the New Mexico AG's claims for restitution were barred by res judicata under state law. The court first pointed out that the prior class settlement expressly discharged the claims of "all those who claim through [the class members] or who assert claims on their behalf (including the government in its capacity as parens patriae)." The court next concluded that the claims in the current suit undoubtedly arose out of the same transaction or occurrence as the previously settled claims, and that the New Mexico AG was in privity with the class in the earlier private class action because both sought to remedy the same injury to the same group of people. Finally, the court added that "as a policy matter, the class members should not be allowed to receive 'double recovery.'" Mr. Ranlett said "Naturally, we think that the district court got it right. It remains to be seen whether the Tenth Circuit and district courts elsewhere will agree. Given the significance of this issue, we will keep our eyes open for future cases raising it and report on them." CAPITAL MANAGEMENT: Attempts to Collect Alleged Debts, Class Says ----------------------------------------------------------------- Michael Beeh, on behalf of himself and all others similarly situated v. Capital Management Services, LP and LVNV Funding, LLC, Case No. 3:13-cv-06666-JAP-DEA (D.N.J., November 1, 2013) is brought to secure redress for the alleged illegal practices of the Defendants, who used deceptive, misleading, and other illegal practices, in connection with their attempts to collect alleged debts from the Plaintiff and others, in violations of the Fair Debt Collection Practices Act. Headquartered in Buffalo, New York, Capital Management Services, LP, is a limited partnership regularly engaged in the business of collecting debts in New Jersey. LVNV Funding, LLC, headquartered in Greenville, South Carolina, is a limited liability company engaged in the business of collecting debts in New Jersey. LVNV is a purchaser of defaulted debt. The Defendants regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The Plaintiff is represented by: Ryan Gentile, Esq. THE LAW OFFICES OF GUS MICHAEL FARINELLA, PC 147 West 35th Street, Suite 1008 New York, NY 10001 Telephone: (201) 873-7675 Facsimile: (212) 675-4367 E-mail: rlg@lawgmf.com CBE GROUP: Violates Fair Debt Collection Practices Act, Suit Says ----------------------------------------------------------------- Joel Rosenzweig, on behalf of himself and all other similarly situated consumers v. The CBE Group, Inc., Case No. 1:13-cv-06086- FB-MDG (E.D.N.Y., November 1, 2013) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com CHRYSLER GROUP: Recalls 1,424 Trucks Due to Transmission Failure ---------------------------------------------------------------- Starting date: December 6, 2013 Type of communication: Recall Subcategory: Car, Light Truck & Van Notification type: Safety Mfr System: Powertrain Units affected: 1424 Source of recall: Transport Canada Identification number: 2013434 TC ID number: 2013434 Manufacturer recall number: N65 Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- DODGE CHARGER 2013 CHRYSLER 300 2013 RAM 1500 2013 On certain Dodge Charger, Chrysler 300 all-wheel drive vehicles and RAM 1500 four wheel drive vehicles equipped with 8 speed automatic transmissions, the transmission output shaft could fail. If this were to occur while the vehicle is being driven, it could result in a loss of motive power. If this were to occur while the vehicle is parked without the parking brake applied, it could result in unintended vehicle movement. Both situations could increase the risk of a crash causing injury and/or property damage. Dealers will replace the transmission in affected vehicles. COMCARE: Helen Polley Staff Members Mull Bullying Class Action -------------------------------------------------------------- Matthew Denholm, writing for The Australian, reports that a group of current or former staff to Labor senator Helen Polley are taking legal advice in pursuit of damages for alleged workplace bullying and harassment, potentially via a class action. Two current employees of the Tasmanian senator and one former staffer have had their claims investigated by Comcare, which confirmed in a recent report that the office of Senator Polley provided an "unhealthy workplace culture and environment". The Australian is aware that a fourth former staff member of Senator Polley is also considering lodging a formal complaint about her treatment, while other former staff have offered to act as witnesses. Comcare's report, in response to three complaints of workplace bullying and harassment, found the "unhealthy workplace culture" in Senator Polley's office had "an adverse impact on the morale, health and wellbeing" of staff. The Australian has learned the three staffers are taking legal advice on options to pursue compensation for stress-related illnesses, with a class action one avenue under consideration, and growing interest from other former employees. "It depends on the advice we get, but if it's appropriate to act together in a small class action then it probably would give more weight (to our individual claims)," former staffer Dennis Holzberger told The Australian. Former staff said there had been an extraordinary turnover in Senator Polley's Launceston office. Complaints from the staff and ex-staff include abusive, humiliating and belittling behavior and using employees to work on lower house election campaigns, to chase ALP membership renewals and work on a European study leave report. Senator Polley on Dec. 11 issued a statement saying she "absolutely rejects" the claims. "The recommendations outlined in Comcare's final report are being implemented to ensure that all work, health and safety information, policies, procedures and systems are of the highest standard," Senator Polley said. "I am completely committed to fostering a healthy and productive workplace environment for my staff." Mr. Holzberger said it was hoped the Comcare report supporting their complaints, as well as accompanying witness statements, would form a powerful basis for compensation, either under common law or the federal Safety Rehabilitation and Compensation Act. He said he and other staff were treated "appallingly". Complaints include that staff were overloaded with work and ordered to complete difficult tasks that were then ignored, as well as given unclear directions for tasks followed by unfair criticism of the resulting work. COMEAU'S SEA: Recalls Salmon Products Due to Undeclared Mustard --------------------------------------------------------------- Starting date: December 9, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Mustard Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Comeau's Sea Foods Limited Distribution: New Brunswick, Nova Scotia, Quebec, Newfoundland and Labrador, Prince Edward Island Extent of the product distribution: Retail CFIA reference number: 8499 Affected products: -- 150 g. Comeau Smoked Atlantic Salmon Twists with UPC 0 62763 02310 8; -- 2.27 kg. Comeau Smoked Atlantic Salmon Twists; and -- 140 g. Comeau Salmon and Seafood Spread with UPC 0 62763 02067 1 CROSSLANDS CORPORATE: Accused of Employing Illegal Pay Practices ---------------------------------------------------------------- Eray Efendigil and Samir Talbi v. Crosslands Corporate Transportation, Inc., KLS Transportation, Inc. and Mamdouh Elsayed, Marianne Elsayed and John Does 1-10, Case No. 1:13-cv- 06098-WFK-SMG (E.D.N.Y., November 1, 2013) is based upon the alleged improper and illegal pay practices that are prevalent in the private call limousine industry in New York City. The Plaintiffs allege on behalf of themselves and other similarly situated current and former employees, classified by the Defendants as drivers and comparable positions with different titles, that they are: (i) entitled to unpaid wages from the Defendants for work for which they did not receive compensation for all of the hours worked by them, for not getting fully reimbursed for payment of gas and tolls, for overtime work for which they did not receive overtime premium pay as well as misappropriated tips and gratuities and (ii) entitled to liquidated damages pursuant to the Fair Labor Standards Act. Crosslands Corporate Transportation, Inc. and KLS Transportation, Inc., are New York corporations headquartered in Long Island City, in Queens, New York. They own and operate limousine service businesses. The Individual Defendants are directors and officers of the Corporate Defendants. The Plaintiffs are represented by: John J. Palmeri, Esq. PALMERI & GAVEN, ESQS. 80 Maiden Lane, Suite 505 New York, NY 10038 Telephone: (212) 608-1717 Facsimile: (212) 732-0908 E-mail: pglaw@palmeri-gaven.com CROWN BOLT: Sued by Assistant Support Project Managers in N.Y. -------------------------------------------------------------- Dennis Letellier, individually, and on behalf of all others similarly situated v. Crown Bolt, Inc., 2:13-cv-06088-ADS-ARL (E.D.N.Y., November 1, 2013) seeks to recover overtime compensation for the Plaintiff and his similarly situated co- workers, who are Assistant Support Project Managers, and who have been employed by the Defendant in the state of New York. Crown Bolt, Inc., is a foreign corporation organized in California and is headquartered in Aliso Viejo, California. The Plaintiff is represented by: Donald J. Cayea, Esq. DONALD J. CAYEA & ASSOCIATES, P.C. 150 Motor Parkway, Suite 401 Hauppauge, NY 11788 Telephone: (646) 824-7000 E-mail: cayea@aol.com DORSEY MARKETING: Recalls Carnaby Sweet Brand Candies ----------------------------------------------------- Starting date: December 11, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Dorsey Marketing Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 8504 Affected products: -- 300 g. Carnaby Sweet Gummy Fingers with UPC 0 57800 85612 2; and -- 300 g Carnaby Sweet Gummy Bones with UPC 0 57800 85613 9 FAIRFAX COUNTY, VA: Fire Captains Seek Back Pay & Unpaid Overtime ----------------------------------------------------------------- Christopher Thompson, et al. v. County Of Fairfax, VA, Case No. 1:13-cv-01362-CMH-TRJ (E.D. Va., November 1, 2013) is brought for a declaratory judgment, back pay, liquidated damages and other relief to remedy the Defendant's willful and unlawful violations of federal and state law. During the times that they have worked in excess of 40 hours in a workweek, the Plaintiffs contend that the Defendant has failed to provide them with the rights and protections provided under the Fair Labor Standards Act, including overtime pay at the rate of one and one-half times their regular rates of pay for all hours they have worked in excess of the hourly standards set forth in the FLSA. The Plaintiffs have been employed by the Defendant in the position of either Captain I or Captain II in the Fairfax County Fire and Rescue Department. County of Fairfax, Virginia is an employer within the meaning of the FLSA and a public agency within the meaning of the FLSA. The Plaintiffs are represented by: Gregory K. McGillivary, Esq. Molly A. Elkin, Esq. WOODLEY & McGILLIVARY 1101 Vermont, N.W., Suite 1000 Washington, DC 20005 Telephone: (202)833-8855 E-mail: gkm@wmlaborlaw.com mae@wmlaborlaw.com The Defendant is represented by: Sona Rewari, Esq. Stuart Alan Raphael, Esq. HUNTON & WILLIAMS 1751 Pinnacle Dr., Suite 1700 McLean, VA 22102 Telephone: (703) 714-7400 E-mail: srewari@hunton.com sraphael@hunton.com FRESH ADVANCEMENTS: Recalls Certain Organic Girl Green Onions ------------------------------------------------------------- Starting date: December 12, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Microbiological - Other Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Fresh Advancements Inc. Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 8513 Affected products: 1 case Organic Girl Premium organic green onions with UPC 8 95203 00154 7 GLOBAL CREDIT: "Mendelsohn" Suit Alleges Violations of FDCPA ------------------------------------------------------------ Heshy Mendelsohn, on behalf of himself and all other similarly situated consumers v. Global Credit & Collection Corporation, Case No. 1:13-cv-06081-WFK-MDG (E.D.N.Y., November 1, 2013) alleges violations of the Fair Debt Collection Practices Act in New York. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com HARVARD COLLECTION: Accused of Violating Fair Debt Collection Act ----------------------------------------------------------------- Joel Horowitz, on behalf of himself and all other similarly situated consumers v. Harvard Collection Services, Inc., Case No. 1:13-cv-06087-FB-VVP (E.D.N.Y., November 1, 2013) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com ISLAND'S END: N.Y. Class Seeks to Recover Overtime Compensation --------------------------------------------------------------- Sally Neighly, individually, and on behalf of all others similarly situated v. Island's End Golf and Country Club, Inc., and Nicolas Massafarro as President, Case No. 2:13-cv-06090-JFB-GRB (E.D.N.Y., November 1, 2013) seeks to recover, among other things, overtime compensation for the Plaintiff, who has been employed by the Defendants in the state of New York. Island's End is a New York domestic business corporation headquartered in Greenport, New York. Nicolas Massafarro is the Company's president. The Plaintiff is represented by: Donald J. Cayea, Esq. DONALD J. CAYEA & ASSOCIATES, P.C. 150 Motor Parkway, Suite 401 Hauppauge, NY 11788 Telephone: (646) 824-7000 Facsimile: (646) 417-6800 E-mail: cayea@aol.com LUMBER LIQUIDATORS: Faces Class Action Over Chinese Wood Flooring ----------------------------------------------------------------- Jessica M. Karmasek, writing for Legal Newsline, reports that a proposed class-action lawsuit filed in a Virginia federal court last week alleges that a line of Chinese wood flooring sold by Lumber Liquidators emits "excessive levels" of formaldehyde. The lawsuit was filed in the U.S. District Court for the Eastern District of Virginia on Dec. 3. It has been assigned to Judge Anthony J. Trenga. "Indeed, contrary to Lumber Liquidators' repeated, detailed representations that its flooring complies with strict formaldehyde standards on its product labels, website, and elsewhere, the toxic formaldehyde emissions from the company's Chinese flooring products are multiple times the maximum permissible limits set by those standards at the time of purchase," plaintiffs Donnie Williamson, Melissa Stini and Jennifer Hogencamp wrote in their 53-page complaint. In 2011, the U.S. National Toxicology Program described formaldehyde as "known to be a human carcinogen." A carcinogen is a substance or agent suspected to cause cancer. The plaintiffs also allege that the floor is illegally sourced through China from other countries, including Russia, threatening "critical habitat and endangered species." "Plaintiffs would have paid significantly less, if they purchased Chinese flooring at all, had they known that the products were sourced from endangered habitats and contained elevated levels of the toxin formaldehyde," the complaint states. The plaintiffs contend their flooring purchases -- all of which were installed in their homes -- are now "markedly less valuable." They are seeking damages -- for installation and removal costs, remediation costs, restocking fees, loss of use and diminished value -- attorneys' fees and costs, and pre-judgment and post- judgment interest "at the highest rates allowed by law" on the damages awarded. LUMBER LIQUIDATORS: Glancy Binkow Files Securities Class Action --------------------------------------------------------------- Glancy Binkow & Goldberg LLP on Dec. 10 disclosed that a class action lawsuit has been filed in the United States District Court for the Eastern District of Virginia on behalf of a class comprising all purchasers of the securities of Lumber Liquidators Holdings, Inc. LL +4.87% between February 22, 2012 and November 21, 2013, inclusive. A COPY OF THE COMPLAINT IS AVAILABLE FROM THE COURT OR FROM GLANCY BINKOW & GOLDBERG LLP. PLEASE CONTACT US TOLL-FREE AT (888) 773- 9224, OR AT (212) 682-5340, OR BY EMAIL TO SHAREHOLDERS@GLANCYLAW.COM TO DISCUSS THIS MATTER OR OTHER POTENTIAL CLAIMS IF YOU PURCHASED LUMBER LIQUIDATORS STOCK PRIOR TO FEBRUARY 22, 2012. IF YOU INQUIRE BY EMAIL PLEASE INCLUDE YOUR MAILING ADDRESS, TELEPHONE NUMBER AND NUMBER OF SHARES PURCHASED. Lumber Liquidators operates as a specialty retailer of hardwood flooring and hardwood flooring enhancements and accessories. The Complaint alleges that throughout the Class Period the Company and certain of its executive misrepresented or failed to disclose that certain of the Company's products failed to comply with applicable laws and regulations governing formaldehyde emissions from composite wood products, and that the Company imported flooring products sourced from illegally logged wood in the Russian Far East, in violation of the Lacey Act. If you are a member of the Class described above, you may move the Court no later than January 27, 2014, to serve as lead plaintiff; however, you must meet certain legal requirements. If you wish to learn more about this action, or if you are a long-term shareholder of Lumber Liquidators and have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Louis Boyarsky, Esquire, of Glancy Binkow & Goldberg LLP, 1925 Century Park East, Suite 2100, Los Angeles, California 90067, Toll Free at (888) 773-9224, or contact Gregory Linkh, Esquire, of Glancy Binkow & Goldberg LLP at 122 E. 42nd Street, Suite 2920, New York, New York 10168, at (212) 682-5340, by e-mail to shareholders@glancylaw.com or visit our website at http://www.glancylaw.com If you inquire by email please include your mailing address, telephone number and number of shares purchased. MERCANTILE BANK: Faces Minority Discrimination Class Action ----------------------------------------------------------- Dani Carlson, writing for WOOD, reports that 10 people have filed a class action suit against Mercantile Bank, alleging the bank discriminated against minority business owners. One of the plaintiffs in the suit, Jeremiah White, told 24 Hour News 8 unequivocally, he believed things would have been different if he was white. The lawsuit states as much, "Mercantile would not have followed the same procedures or taken the same actions if Mr. White had been white." "One of the reasons I chose Mercantile was because they were a community bank. They were out of Grand Rapids, supposedly pushing the minority community at that time, and I heard that they were giving loans out," said Mr. White. Mr. White told 24 Hour News 8 when he applied for the loan, he had been a Grand Rapids business owner for 13 years, and had excellent credit. Starting in 2008, Mr. White told 24 Hour News 8 his businesses began to have some financial troubles. He said before he missed a single payment, he went to the bank to see what could be done. He said the bank said it couldn't do anything. "Sad to say, it led to my building going into foreclosure," said Mr. White. "And it was absolutely awful." Mr. White said he not only lost one building, he also lost his home and other property. Mr. White said he initially didn't think discrimination was a possibility, but changed his mind after speaking to other members of the minority business community. "I couldn't help but think it was racial. We were all black, or some form of ethnicity, and we all were at the same bank and we were all getting our loans called in at some form or way or another," said Mr. White. "So I don't buy that it wasn't racial." The suit alleges the discrimination took place over several years, starting in 2009. It states Mercantile "discriminated against Plaintiffs by engaging in a 'concerted effort' to terminate all banking relationships with black business borrowers." It also alleges that white borrowers were given more opportunities to refinance or make up late payments than their minority counterparts. Ten people are now a part of the suit, which seeks $400 million in actual and punitive damages. The discrimination allegations were first raised in February 2013, by a single individual. Jordan Hoyer, attorney for the plaintiffs, said so many people came forward with similar complaints since then, they decided to form a class action against the bank. "It matters if you're treated differently because you're black [or] because you're white," said Ms. Hoyer. "It's about saying, 'We expect to be treated the same. We weren't, and we want to hold that entity accountable for letting us down cause they weren't there.'" When asked how she knew that white business owners didn't have loans called in at the same rate as minority owners, Ms. Hoyer said she wouldn't know that definitively until after the discovery period of the case. She said the bank would then turn over all business loan files from all races over a period of several years. "I'm sure that there were some [white business owners who were foreclosed on] but [the bank] didn't target a particular group like they did the black community and the minority community," said Hoyer. Mercantile Bank would not speak to 24 Hour News 8, but did e-mail a statement which read: "As a matter of policy Mercantile Bank does not comment on pending legal issues, but we are confident that this lawsuit has no merit and intend to vigorously defend the company. Mercantile has a long history of providing equal opportunities to all customers in accordance with stringent legal and regulatory standards." The bank has 28 days to respond to the class action filing. It has been filed in Kent County Circuit Court. MICRON TECHNOLOGY: Pays in Full $67M Accord in Price-Fixing Suit ---------------------------------------------------------------- By the end of the first quarter of 2013, Micron Technology, Inc. paid into an escrow account the full amount of approximately $67 million settlement of price-fixing lawsuits filed against it, according to the company's Oct. 28, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 29, 2013. A number of purported class action price-fixing lawsuits have been filed against the company and other DRAM suppliers. Four cases have been filed in the U.S. District Court for the Northern District of California asserting claims on behalf of a purported class of individuals and entities that indirectly purchased DRAM and/or products containing DRAM from various DRAM suppliers during the time period from April 1, 1999 through at least June 30, 2002. The complaints allege a conspiracy to increase DRAM prices in violation of federal and state antitrust laws and state unfair competition law, and/or unjust enrichment relating to the sale and pricing of DRAM products. The complaints seek joint and several damages, trebled, monetary damages, restitution, costs, interest and attorneys' fees. In addition, at least sixty-four cases have been filed in various state courts asserting claims on behalf of a purported class of indirect purchasers of DRAM. In July 2006, the Attorneys General for approximately forty U.S. states and territories filed suit in the U.S. District Court for the Northern District of California. The complaints allege, among other things, violations of the Sherman Act, Cartwright Act, and certain other states' consumer protection and antitrust laws and seek joint and several damages, trebled, as well as injunctive and other relief. On October 3, 2008, the California Attorney General filed a similar lawsuit in California Superior Court, purportedly on behalf of local California government entities, alleging, among other things, violations of the Cartwright Act and state unfair competition law. On June 23, 2010, the company executed a settlement agreement resolving these purported class-action indirect purchaser cases and the pending cases of the Attorneys General relating to alleged DRAM price-fixing in the United States. Subject to certain conditions, including final court approval of the class settlements, the company agreed to pay approximately $67 million in aggregate in three equal installments over a two-year period. The company had paid the full amount into an escrow account by the end of the first quarter of 2013 in accordance with the settlement agreement. MICRON TECHNOLOGY: Settled DRAM Price-Fixing Lawsuits in Canada --------------------------------------------------------------- Micron Technology, Inc. entered into a settlement agreement resolving three putative class action cases filed against the company in Quebec, Ontario, and British Columbia, Canada, alleging price-fixing of DRAM products, according to the company's Oct. 28, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 29, 2013. Three putative class action lawsuits alleging price-fixing of DRAM products also have been filed against the company in Quebec, Ontario, and British Columbia, Canada, on behalf of direct and indirect purchasers, asserting violations of the Canadian Competition Act and other common law claims (collectively the "Canadian Cases"). The claims were initiated between December 2004 (British Columbia) and June 2006 (Quebec). The plaintiffs seek monetary damages, restitution, costs, and attorneys' fees. The substantive allegations in these cases are similar to those asserted in the DRAM antitrust cases filed in the United States. Plaintiffs' motion for class certification was denied in the British Columbia and Quebec cases in May and June 2008, respectively. Plaintiffs subsequently filed an appeal of each of those decisions. On November 12, 2009, the British Columbia Court of Appeal reversed, and on November 16, 2011, the Quebec Court of Appeal also reversed the denial of class certification and remanded the cases for further proceedings. On October 16, 2012, the company entered into a settlement agreement resolving these three putative class action cases subject to certain conditions including final court approval of the settlement. The Company said the settlement amount did not have a material effect on the business, results of operations or financial condition. MUELLER INDUSTRIES: Settlement Okayed in Extruded Metals Suit ------------------------------------------------------------- Mueller Industries, Inc. reached a settlement that was approved by the court in the case filed in Michigan Circuit Court by Gaylord L. Miller, and all others similarly situated, against Extruded Metals, Inc., according to Mueller's Oct. 28, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 28, 2013. A purported class action was filed in Michigan Circuit Court by Gaylord L. Miller, and all others similarly situated, against Extruded Metals, Inc. (Extruded) in March 2012 under nuisance, negligence, and gross negligence theories. It is brought on behalf of all persons in the City of Belding, Michigan, whose property rights have allegedly been interfered with by fallout and/or dust and/or noxious odors, allegedly attributable to Extruded's operations. Plaintiffs allege that they have suffered interference with the use and enjoyment of their properties. They seek compensatory and exemplary damages and injunctive relief. The Company reached a settlement that was approved by the court on September 26, 2013, and the case has been dismissed. The settlement involves class-wide (the settlement class consist of all current and former residents of Belding, Michigan) release of certain property damage claims, certain commitments by Extruded regarding emissions controls, and a payment of certain fees and costs. PRESSLER & PRESSLER: Accused of Violating FDCPA in New Jersey ------------------------------------------------------------- Joshua J. Lechtrecker, on behalf of himself and others similarly situated v. Pressler & Pressler, LLP a/k/a Pressler and Pressler, LLP, Case No. 2:13-cv-06626-KM-MAH (D.N.J., November 1, 2013) accuses the Defendant of violating the Fair Debt Collection Practices Act by using false, deceptive and misleading representations and means in the debt collection communications, which the Defendant mailed to the Plaintiff and others similarly situated in connection to its business of debt collection. Pressler & Pressler, LLP a/k/a Pressler and Pressler, LLP, is a law firm headquartered in Parsippany, New Jersey. Pressler regularly attempts to collect debts alleged to be due to another. The Plaintiff is represented by: Andrew W. Li, Esq. THE WOLF LAW FIRM, LLC 1520 U.S. Highway 130, Suite 101 North Brunswick, NJ 08902 Telephone: (732) 545-7900 Facsimile: (732) 545-1030 E-mail: ali@wolflawfirm.net - and - Christopher J. McGinn, Esq. THE LAW OFFICE OF CHRISTOPHER J. McGINN 75 Raritan Avenue, Suite 220 Highland Park, NJ 08904 Telephone: (732) 937-9400 Facsimile: (800) 931-2408 E-mail: mcginn.chris@gmail.com PROCTER & GAMBLE: Judge Trims Pringles Trans Fat Labeling Suit -------------------------------------------------------------- Linda Chiem, Lance Duroni and Greg Ryan, writing for Law360, report that a California federal judge on Dec. 10 trimmed a proposed class action alleging Pringles chips, MorningStar riblets and fruit snack products made by Procter & Gamble Co. and Kellogg Co. were deceptively labeled as healthy, but left intact claims related to Pringles' trans fat content labeling. U.S. Magistrate Judge Paul S. Grewal partially granted motions to dismiss from P&G and Kellogg for certain product claims, saying the plaintiffs still have not pointed to specific evidence on labels or claims on the companies' websites that misled consumers about the health value of the snacks. But the judge allowed to survive the plaintiffs' claim that the companies violated California's Unfair Competition Law by labeling Pringles as having "0 grams trans fat" but failing to disclose on the label that the product contained high levels of other ingredients that posed diet-related or other health risks. Specifically, the plaintiffs claim that while Pringles may contain "0 grams trans fat" as advertised, the label runs afoul of a U.S. Food and Drug Administration regulation prohibiting such boasts when the product also has high levels of other fats, sodium or cholesterol and does not likewise disclose the amount of those nutrients. They allege this unlawful conduct is all they need to prove liability under the UCL. "Plaintiffs here allege that the 0 grams trans fat label without the required disclosure lead them to believe that Pringles were a healthier alternative to other potato snacks, which is precisely the type of misdirection that the FDA was attempting to prevent in requiring the omitted disclosure," Judge Grewal said. "Although the court expresses its skepticism that any reasonable consumer could be misled by the representations identified by plaintiffs, the Ninth Circuit has made it clear that such questions are issues of fact and inappropriate for resolution on a motion to dismiss," he added. The judge rejected as defective the arguments raised by P&G and Kellogg that the plaintiffs had no standing or that the UCL claim was preempted by federal law. However, the judge agreed to dismiss the UCL claim only to the extent that the labels of the "reduced fat" Pringles and 100 calorie packs demonstrated that those products had insufficient fat content to require the disclosure in question. Judge Grewal pared the suit by dismissing claims that Pringles was mischaracterized as healthy or wholesome, saying the plaintiffs still haven't pinpointed any statements on the website or on Pringles labels as to how the defendants mischaracterized their chips as being healthy or wholesome. Meanwhile, Judge Grewal left intact claims that Kellogg violated California's Fair Advertising Law with respect to the nutritional content of its Morningstar products. The plaintiffs' attorney Ben F. Pierce Gore of Pratt & Associates told Law360 on Dec. 11 that he was pleased with the judge's decision, which allows the most significant claim against the companies regarding the trans fat labeling to proceed. "It leaves the case largely intact and the bulk of the case goes forward," he said. "This case has been tangled up in motions to dismiss for a year-and-a-half so we're looking forward to doing some discovery starting off the new year." Sarah Samet filed the complaint in April 2012, seeking a refund on behalf of everyone who purchased the allegedly misbranded products. But Judge Grewal trimmed the suit significantly in June, dismissing for good the claims under the Magnuson-Moss Warranty Act and the Song-Beverly Credit Card Act, along with claims for restitution and unjust enrichment. However, he gave the plaintiffs a chance to amend the suit with respect to various claims concerning Pringles labeling, the claims targeting the description of Fruity Snacks as "fortified," and all the "evaporated cane juice claims." Representatives for P&G and Kellogg could not be immediately reached for comment on Dec. 11. The plaintiffs are represented by Ben F. Pierce Gore of Pratt & Associates and David McMullan Jr. of Barrett Law Group PA. P&G is represented by Robert A. Mittelstaedt -- ramittelstaedt@jonesday.com -- Craig E. Stewart -- ramittelstaedt@jonesday.com -- Brian Selden -- bgselden@jonesday.com -- and Jonathan Berman -- jberman@jonesday.com -- of Jones Day. Kellogg is represented Kenneth K. Lee -- KLee@jenner.com -- Kelly M. Morrison -- kmorrison@jenner.com -- and Dean N. Panos -- dpanos@jenner.com -- of Jenner & Block LLP. The case is Samet et al. v. Procter & Gamble Co. et al., case number 5:12-cv-01891, in the U.S. District Court for the Northern District of California. SOUTHEAST SUPREME: Class Seeks to Recover Unpaid Back Wages ----------------------------------------------------------- David Frasier, on his own behalf and behalf of those similarly situated v. Southeast Supreme Cleaning Services, Inc., doing business as: Detail King, a Florida Profit Corporation, Case No. 6:13-cv-01700-CEH-TBS (M.D. Fla., November 1, 2013) seeks to recover unpaid back wages, an additional equal amount as liquidated damages and other costs. Southeast Supreme Cleaning Services, Inc., is a Florida for profit corporation. The Plaintiff is represented by: Angeli Murthy, Esq. MORGAN & MORGAN, PA 600 N Pine Island Rd., Suite 400 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954) 333-3515 E-mail: amurthy@forthepeople.com STEVEN COHEN: Accused of Violating Fair Debt Collection Act ----------------------------------------------------------- Delsy M. Garcia, on behalf of herself and all other similarly situated consumers v. Steven Cohen and Law Offices of Steven Cohen LLC, Case No. 1:13-cv-06083-NGG-RLM (E.D.N.Y., November 1, 2013) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com TOYOTA MOTOR: Attorney Asks Judge to Establish Settlement Process ----------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that lawyers for Toyota Motor Corp. have taken a step toward settling hundreds of lawsuits filed on behalf of drivers injured or killed in accidents blamed on sudden, unintended acceleration, according to court documents. Toyota attorney John Hooper -- jhooper@reedsmith.com -- a New York partner at Reed Smith, and members of the plaintiffs team have asked the judge to establish an "intensive settlement process," including a mandatory conference to iron out details, according to a motion filed on Dec. 12. U.S. District Judge James Selna in Santa Ana, Calif., overseeing the litigation in federal court against Toyota, approved the request and scheduled a Jan. 14 hearing. "In our view, this process will bring greater efficiency to the resolution of pending cases and provide a clear path forward for those claims that cannot be resolved outside of trial," Toyota spokeswoman Carly Schaffner wrote in an emailed statement. "We continue to stand behind the safety and quality of our vehicles and are grateful to our customers who have continued to stand behind Toyota." Lead plaintiffs attorney Todd Walburg of San Francisco's Lieff Cabraser Heimann & Bernstein said on the firm's blog on Dec. 13 that the proposed settlement process "provides immediate access to plaintiffs who would like to resolve their cases or the ability to determine whether a trial is in their best interest." He added: "We are confident, given the strong benefits of this program, that there will be overwhelming support." Hundreds of lawsuits followed Toyota's 2010 recall of nearly 10 million vehicles for defective accelerator pedals and floor mats that could cause sudden acceleration. A jury in Los Angeles found on Oct. 10 that Toyota's failure to install a brake override system did not contribute to the accident that killed the driver of a 2006 Camry. But on Oct. 24, a jury in Oklahoma City issued a $3 million verdict against Toyota in a case brought by an injured driver and the family of a passenger killed when their 2005 Camry accelerated at a highway exit ramp. Toyota settled the case for a confidential sum before the jury could decide punitive damages. The case was the first to present evidence that defects in the electronic throttle control system -- not floor mats or accelerator pedals -- were responsible for sudden acceleration in Toyota vehicles. Under the proposed settlement process, mediator Patrick Juneau, who oversaw Toyota's $1.6 billion agreement last year to resolve class claims related to sudden acceleration, will distribute information to plaintiffs' attorneys across the country by Dec. 23. Nearly 300 cases remain pending over injuries and deaths against Toyota across the nation. The first stage of the process would begin in February and involve "all parties and their counsel in each respective personal injury, wrongful death and property damage case," according to the motion. In a second phase, cases not resolved through the initial process will be mediated. If cases still remain unsettled, they would be remanded for trial, according to the motion. Also filing the motion was plaintiffs attorney W. Daniel Miles -- dee.miles@beasleyallen.com -- a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles, the Montgomery, Ala., law firm that obtained the Oklahoma verdict. Plaintiffs lawyers with pending trials against Toyota also joined: Benjamin Bailey -- bbailey@baileyglasser.com -- and Eric Snyder -- esnyder@baileyglasser.com -- of Bailey & Glasser in Charleston, W.Va., who have a Feb. 19 trial scheduled in Flint, Mich.; and W. Mark Lanier of The Lanier Law Firm in Houston, who has the first federal trial scheduled for March 4 before Judge Selna. As part of the settlement process, lawyers on both sides have agreed to stay the litigation, including the pending bellwether trials. UNITED STATES: NSA Surveillance Likely Violates Privacy Rights -------------------------------------------------------------- According to an article posted by Zoe Tillman at The Blog of Legal Times, the National Security Agency's bulk collection of telephone records likely violates privacy rights of individual Americans, a federal trial judge in Washington ruled on Dec. 16. Describing the government's surveillance efforts as "almost- Orwellian," U.S. District Judge Richard Leon found the challengers in a lawsuit in Washington were likely to succeed on their Fourth Amendment privacy claims. Judge Leon granted an injunction that would have stopped national security officials from collecting telephone record data on two of the plaintiffs. (The challengers have not certified a class to date.) However, the judge put that order on hold pending the government's likely appeal. The judge said he had "serious doubts" about the effectiveness of the telephone record collection program in aiding time-sensitive terrorism investigations. As a result, he said, the plaintiffs showed their privacy interests likely outweighed the government's stated interests in gathering the data. "Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast," Judge Leon wrote. Attorney and activist Larry Klayman filed several lawsuits challenging government surveillance efforts following leaks earlier this year by ex-National Security Agency contractor Edward Snowden. Mr. Klayman and his co-plaintiffs sued as subscribers of telecommunications companies that were reportedly the subject of NSA intelligence-gathering efforts. The plaintiffs accused the government of violating their constitutional rights and exceeding its authority under the Administrative Procedure Act. Judge Leon found the court lacked standing to consider the APA claim, but could consider the constitutional claims. The Foreign Intelligence Surveillance Court reviews warrants for government surveillance, but Judge Leon said that didn't stop him from having jurisdiction to hear constitutional claims related to that surveillance. "While Congress has great latitude to create statutory schemes like [the Foreign Intelligence Surveillance Act], it may not hang a cloak of secrecy over the Constitution," Judge Leon wrote. Although the plaintiffs brought a number of constitutional claims involving the collection of phone record metadata, Judge Leon said they were most likely to succeed on a Fourth Amendment claim. For more than seven years, Judge Leon noted, the government had collected telephone records that revealed information on what phone numbers made and received calls, when the calls took place and how long the calls lasted. The government said the metadata records were used to identify connections to terrorists and didn't include information on who made the calls or what they discussed. Judge Leon dismissed the government's argument the 1979 Supreme Court case Smith v. Maryland -- which involved the warrantless use of a "pen register" -- permitted the bulk collection of telephone metadata. (The authorities use pen registers to record the numbers a person dials.) "When do present-day circumstances -- the evolution of the government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies -- become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith does not apply?" Judge Leon wrote. "The answer, unfortunately for the government, is now." The judge said he was "convinced that the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search." "To the contrary," Judge Leon wrote, "I believe that the bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy." Judge Leon said "the almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979." The judge added that the amount of information contained in phone records on Dec. 16 was greater as well. He said he could no longer use "as my North Star a case that predates the rise of cell phones." Although Judge Leon granted the injunction, he stayed that order pending the government's appeal "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues." Mr. Klayman could not immediately be reached for comment. A spokesman for the U.S. Department of Justice, Andrew Ames, said the government is reviewing the court's decision. "We believe the program is constitutional as previous judges have found," he said. "We have no further comment at this time." U.S. Senate Judiciary Committee Chairman Patrick Leahy (D) said in a statement today that in light of Judge Leon's ruling, "it is clear to me that even more oversight is needed in the future." "Americans deserve an open and transparent debate about the constitutionality, efficacy, and appropriateness of the government's dragnet collection programs," Mr. Leahy said. "I welcome [Mon]day's district court ruling regarding the collection of phone metadata, particularly because the litigants were afforded the opportunity to participate in an adversarial process." YOUR FITNESS DISH: Quinola Quinoa Granola Recalled Over Allergen ---------------------------------------------------------------- Starting date: December 6, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Tree Nut Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Distribution: Ontario Extent of the product distribution: Retail Affected products: 235 g. Your Fitness Dish Quinola Quinoa Granola with UPC 6 27843 03277 9 * Mintz Levin Discusses Food Mislabeling Class Action Rulings ------------------------------------------------------------- Daniel J. Herling, Esq., at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. reports that numerous occasions, plaintiffs have brought claims challenging labeling of food products for mislabeling. The labels challenged include the use of the term "natural", "0g trans fat" and the infamous claim of misbranding relating to "crunch berries." Motions to strike class allegations due to the amalgamation of several misbranding theories across numerous products in a single putative class action have garnered a fair amount of success in the "Food Court" (Northern District of CA). Defendants often argue that a case which involves disparate issues with each requiring individual determination should result in the allegations being struck as a class and/or dismissal of the action in its entirety. In two recent cases in the Food Court may make defendants pause before asserting these arguments. Trazo v. Nestle USA, Inc.; N.D. Cal., No. 12-0227, 12/4/13 Judy Trazo, Jenna Coffey, and Marianna Belli brought a putative class action challenging the labeling on thirteen separate Nestle products and asserted nine separate theories of liability. The products involved in the action were very different from one another. The products included Juicy Juice, ravioli, and CoffeeMate. Initially the trial court struck the class allegations, ruling that they were not related enough to be amenable to class certification. Undeterred, the plaintiffs filed an amended complaint and a motion under Federal Rule Civil Procedure 21 to sever the claims into seven putative class actions, each one representing a single product line. Nestle opposed the motion. Under Rule 21, a court will consider whether the claims arose out of the same transaction or occurrence, whether the claims present some common questions of law or fact, whether settlement or judicial economy would be facilitated, whether prejudice would be avoided if severance were granted, and whether different witness and documentary proof are required for the separate claims. Determination of a Rule 21b motion is within the sound discretion of the trial court and as long as there is a discreet and separate claim, the district court may exercise its discretion and sever it. Plaintiffs admitted that the request to sever is unusual. The Court noted that "what plaintiffs seek is nothing less than a shattering into pieces of a case they brought as an integrated whole." Nestle concurred that the case involves disparate issues and the Court agreed that the issues belong in different cases. The Court, however, disagreed with Nestle that striking or dismissing the action would not achieve anything more than what the plaintiffs already propose. The Court went on to reason that assuming that the plaintiffs would pay the relatively modest filing fee for each new case addressing each unique claim, one way or another, Nestle and the Court would confront the claims. The Court then addressed the factors relating to common questions of law or fact, judicial economy, potential for prejudice and evidentiary proof required for separate claims and found that though the plaintiffs' request is unusual he would grant it. The Court acknowledged some of the concerns Nestle raised and provided specific guidance relating to how the matters would be handled. Although the Nestle order is believed to be the first time a court has acted on a plaintiff's motion to sever in a food mislabeling case, it is not the first time that a severance has occurred in the Food Court. Gustavson v. Wrigley Sales Co. (N.D. Cal. No. 12-01861) - In September 2013, Judge Lucy H. Koh ordered severance in a case entitled Gustavson v. Wrigley Sales Co., N.D. Cal. No. 12-01861 by ordering severance of the case into two: Gustavson v. Wrigley, involving gum and mints, and Gustavson v. Mars, Inc., No. 13- 04537, involving claims against the chocolate. Jones v. C. A. Agra Corp. (N.D. Cal. No. 12-01633) -- A motion for severance is also pending in another food labeling case where the plaintiffs seek to sever their claims along three product lines: PAM cooking spray, Hunts tomato products, and SwissMiss cocoa; Jones v. C. A. Agra Corp., N.D. Cal. No. 12-01633. Although the defendants raised reasonable arguments that putative class actions involving multiple products and multiple claims should not be class actions and therefore dismissed, the Food Court has ignored this FRCP 23 procedural requirement and is permitting the plaintiffs to either sever the matters on their own or severing the case sua sponte. The law of unintended consequences appears to be at play here. Defendants have raised the issue that unrelated products and claims do not belong in the same lawsuit. The courts have agreed; but rather than dismissing the cases for failure to comply with FRCP 23, the courts have granted plaintiffs relief in the form of severance. * Morrison Ruling to Cause Uptick in Securities Suits in Australia ------------------------------------------------------------------ Andreas Costi from the Goal Group reports that as one securities class action door has shut in the US, it has provided openings in Australia. The Morrison v. National Australia Bank securities class action case in 2010 prompted a huge blow for litigants when the U.S. Supreme Court ruled against what have become known as f-cubed actions. The ruling has set precedence for an action involving a non-U.S. shareholder, suing a non-U.S. company, whose stock was purchased on a non-U.S. exchange, not being able to be brought to a U.S. court. This restriction by the U.S. federal courts has prompted a growing desire to develop domestic class actions procedures in many countries around the globe and Australia itself has firmly established itself as a hub for securities class actions cases in the Asia-Pacific region. Landmark settlements have been reached, such as when Centro Retail Australia and PricewaterhouseCoopers agreed to pay $200 million to its shareholders. At Goal Group we have calculated that non-US settlements will reach $US 8.3billion annually by 2020, and it is believed that the Asia-Pacific region will be responsible for around 40 per cent of this figure. Although Australia has positioned itself as a frontrunner to process non-US class actions, it is not the only jurisdiction to have adapted to the outcome of the Morrison ruling. Securities class actions are moving away from the singular and relatively straightforward focus of the United States to a multiple and complex series of legal systems throughout the world. A new research note by Goal Group has revealed that between 2000 and 2012, investors' non-participation in American securities class actions alone has resulted in over $US 194m of Australian investors' returns being left un-reclaimed. Australian fiduciaries face the threat of legal action should they fail to identify and ensure participation in relevant securities class actions. Responsible parties can no longer ignore the opportunity to claim international damages to which they are legally entitled. However, as class actions globalize, monitoring becomes challenging as there is a more complex global network of shareholder litigation to consider and respond to. Many fiduciaries have historically struggled to keep track of opportunities to make a claim, and the processes required to do so successfully have at times been considered difficult and daunting. Now, in reality, there is little excuse for failing to ensure participation in relevant securities class actions as, although many have an American focus, there are specialist service providers that can automate the process across international legislatures, and at a relatively low cost. The pressure of the process can be dramatically eased as such providers can globally cover class actions in all markets, while managing on-going relationships with various legal firms worldwide and a network of paying agents. * Recent Class Actions Cast Spotlight on GINA Privacy Laws ---------------------------------------------------------- Philip L. Gordon, Esq. -- pgordon@littler.com -- at Littler Mendelson reports that as named by Congress, the "Genetic Information Non-Discrimination Act of 2008" (GINA) appears to be just one more employment law adding to the ever-expanding list of characteristics that cannot lawfully form the basis for an employment decision. However, the law's name camouflages its true nature. GINA, in reality, is a privacy statue that strictly regulates employers' collection, use, safeguarding, and disclosure of "genetic information." Moreover, two recently filed class action lawsuits demonstrate that many employers may be unwittingly violating GINA even if they conduct no genetic tests. Critical to understanding GINA's broad sweep beyond genetic tests is the statute's definition of the term "genetic information." That term includes not just genetic test results but also "the manifestation of a disease or disorder in a family member." Notably, this definition is not limited to "genetic" diseases or disorders; any disease or disorder satisfies the definition of "genetic information." Further expanding this definition's scope, GINA defines "family member" to include (a) a dependent, whether born to the individual or adopted; (b) a relative to the fourth degree of the individual, and (c) a relative to the fourth degree of the individual's dependents. The practical upshot of this expansive definition is that, on a daily basis, millions of Americans post their genetic information in social media and share their genetic information with their health care providers. The Tweet, "Exhausted; spent last night in ER with Joey after asthma attack" reveals a dependent's disorder (asthma) and, therefore, constitutes "genetic information." A comment on a Civil War blog, "My great-great-grandfather died from gangrene after a bullet wound at Gettysburg" also reveals "genetic information." As a third example, posting a joyful comment on Facebook after a cousin's cancer goes into remission also discloses "genetic information." These posts share a common thread: they each reveal the poster's family medical history (as defined by the Act). And, family medical history is critical to medical diagnosis and treatment. Consequently, most first visits to a doctor are preceded by fifteen excruciating minutes reading an encyclopedic list of diseases and disorders associated with each body part and checking whether any of them has afflicted the patient or the patient's grandparents, parents, siblings or children. It is this proliferation of genetic information, and requests for it, that make compliance with GINA's most basic privacy protection potentially difficult for employers. Under GINA, it is unlawful for an employer to "request, require or purchase genetic information" of an employee or the employee's family members. In its first lawsuit enforcing GINA, filed in early May 2013, the EEOC relied on this prohibition when alleging that the defendant in that case, one of the world's largest distributors of decorative fabrics, violated GINA. According to the complaint, as part of a pre-employment physical, the fabric distributor's contract medical examiner required an applicant to complete a questionnaire asking whether she or her family members had suffered from any of a long list of disorders, i.e., family medical history. On the day that the agency filed the complaint, the EEOC also issued a press release announcing that it had settled the case for $50,000. One week later, the EEOC filed its first class action complaint, alleging GINA violations. In that case, which is pending, the EEOC alleges that a New York nursing home violated GINA because it "requests family medical history as part of a pre-employment, return-to-work, and annual medical exams of its staff." Following the EEOC's lead, private plaintiffs filed a class action lawsuit against an Illinois laboratory in June 2013, alleging that the lab violated GINA by requiring employees to complete "a medical questionnaire that included questions concerning family medical history." Notably, none of these lawsuits alleged that the employer used genetic information in violation of GINA's anti- discrimination provisions. It was the mere alleged collection of family medical history, i.e., the privacy violation, that triggered the lawsuit. These lawsuits are just one indicator that the enforcement environment is changing. In its Strategic Enforcement Plan for fiscal years 2012 to 2016, the EEOC identifies GINA as one of six areas where it will focus its enforcement efforts. In addition, the number of charges filed with the EEOC alleging violations of GINA, while still small, increased by nearly 50% between fiscal years 2010 and 2012. While the recent lawsuits focus on the employer's alleged direct request for family medical history, employers also can indirectly request family medical history in violation of GINA. Employers commonly ask employees to execute a HIPAA-compliant authorization to allow a health care provider to disclose their medical information, albeit not genetic information, to the employer. For example, an employer may request medical information to determine whether an employee is fit for duty, requires a requested accommodation, or poses a direct threat in the workplace. As noted above, many health care providers obtain family medical history for diagnosis and treatment. Consequently, an employer that asks an employee to sign an authorization permitting disclosure of the employee's "medical file" or of all protected health information (PHI) for a given time period could inadvertently obtain the employee's genetic information in the form of family medical history. While GINA expressly excepts from its purview the situation where an "employer inadvertently requests or requires genetic information," the EEOC's regulations implementing GINA narrowly construe the exception as applied to requests for employees' medical information. Under the applicable regulation, an employer that receives family medical history from an employee's health care provider will generally be presumed to have asked for it in violation of GINA. An employer can avoid this presumption by tailoring the description in the HIPAA-compliant authorization of the PHI to be disclosed so that the authorization is "not likely to result in [the employer's] obtaining genetic information." Alternatively, the employer can specifically direct the provider not to provide family medical history or other genetic information in response to the request. The EEOC's regulations provide the following "safe harbor" language to avoid liability for unlawfully requesting genetic information from an employee's health care provider: The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. In other words, an employer can help minimize the risk of liability for requesting family medical history in violation of GINA by including the safe harbor language quoted above in the HIPAA-compliant authorization tendered to an employee when the employee's medical information, but not the employee's family medical history or other genetic information, is needed for an employment decision. With employers increasingly turning to social media for recruiting and to investigate allegations of employee misconduct, the risk of collecting genetic information in the form of family medical history also has increased. Under the EEOC's implementing regulations, an employer does not violate GINA if "it acquires genetic information from documents that are commercially and publicly available for review . . ., including . . . information communicated through . . . the Internet." In other words, an employer who happens on a publicly available social media post similar to the posts described above would not violate GINA. However, the implementing regulations also provide that this exception does not apply to "genetic information acquired through sources with limited access, such as social networking sites . . . which require permission to access through a specific individual." Under a literal reading of this exception, an employer who obtains access to posts disclosing family medical history on a Facebook page where the user has set his or her privacy settings to "friends only" apparently would violate GINA even if the user had friended the manager or co-worker who brings the family medical history to the employer's attention. Whether that is how the law will eventually be interpreted by the courts is uncertain. While a comprehensive discussion of GINA is beyond the scope of this article, the recent EEOC enforcement actions and private class action filings as well as the increasing prevalence of personal social media in the workplace highlight the need for organizations to address, or revisit, their compliance with GINA. These efforts should include, at a minimum, the following: Eliminate direct requests for family medical history (except in the narrow circumstances not discussed here where such requests are permitted); Include the "safe harbor" language in any HIPAA authorization provided to a medical provider for release of an employee's medical information; Train recruiters and other employees who may access applicants' or employees' social media content not to record genetic information or rely on it for any employment decision. While these steps should help mitigate the most significant risks arising from GINA, employers should conduct a comprehensive review of their compliance with this statute as the enforcement environment becomes less forgiving. Asbestos Litigation ASBESTOS UPDATE: Lonza's Conalco Files to Deal with Asbestos Suits ------------------------------------------------------------------ Bill Rochelle, the bankruptcy columnist for Bloomberg News, reports that Consolidated Aluminum Corp., an indirect subsidiary of Switzerland-based Lonza Group AG, filed a Chapter 11 petition on Dec. 15 in Newark, New Jersey, to deal with personal-injury lawsuits. According to the report, Allendale, New Jersey-based Conalco ceased operations in 1994 when the business was sold. Since then, the company has been managing lawsuits arising from exposure to asbestos and coal tar pitch. The petition lists assets for less than $1 million and debt exceeding $50 million. Liabilities include $72.7 million owing to the parent Lonza America Inc. The case is In re Consolidated Aluminum Corp., 13-bk-37149, U.S. Bankruptcy Court, District of New Jersey (Newark). ASBESTOS UPDATE: Specialty Products Judge Could Rethink Deadline ---------------------------------------------------------------- Law360 reported that a Delaware bankruptcy judge indicated on Dec. 17 that he may reconsider his ruling ordering a deadline be set for asbestos-related injury claims in the Specialty Products Holding Corp. case, and said he intends to see dual solicitations for a Chapter 11 plan from both the asbestos claimants committee and the debtor. According to the report, U.S. Bankruptcy Judge Peter J. Walsh scheduled a hearing for Jan. 7, during which counsel representing the potentially thousands of people who may have suffered some injury or illness connected to a compound produced by asbestos may argue for the reconsideration of his ruling. About Specialty Products Cleveland, Ohio-based Specialty Products Holdings Corp., aka RPM, Inc., is a wholly owned subsidiary of RPM International Inc. The Company is the holding company parent of Bondex International, Inc., and the direct or indirect parent of certain additional domestic and foreign subsidiaries. The Company claims to be a leading manufacturer, distributor and seller of various specialty chemical product lines, including exterior insulating finishing systems, powder coatings, fluorescent colorants and pigments, cleaning and protection products, fuel additives, wood treatments and coatings and sealants, in both the industrial and consumer markets. The Company filed for Chapter 11 bankruptcy protection (Bankr. D. Del. Case No. 10-11780) on May 31, 2010. Gregory M. Gordon, Esq., Dan B. Prieto, Esq., and Robert J. Jud, Esq., at Jones Day, serve as bankruptcy counsel. Daniel J. DeFranceschi, Esq., and Zachary I. Shapiro, Esq., at Richards Layton & Finger, serve as co- counsel. Logan and Company is the Company's claims and notice agent. The Company estimated its assets and debts at $100 million to $500 million. The Company's affiliate, Bondex International, Inc., filed a separate Chapter 11 petition on May 31, 2010 (Case No. 10-11779), estimating its assets and debts at $100 million to $500 million. On May 20, 2013, the Bankruptcy Court entered an order estimating the amount of the Debtors' asbestos liabilities, and a related memorandum opinion in support of the estimation order. The Bankruptcy Court estimated the current and future asbestos claims associated with Bondex International, Inc. and Specialty Products Holding at approximately $1.17 billion. The estimation hearing represents one step in the legal process in helping to determine the amount of potential funding for a 524(g) asbestos trust. ASBESTOS UPDATE: Mo. Solons To Limit Medical Malpractice Suits -------------------------------------------------------------- The Associated Press reports that Missouri lawmakers plan to try again to limit how much money people can receive in medical malpractice lawsuits. Missouri House Speaker Tim Jones says the liability limits are a priority for the 2014 session. And Rep. Eric Burlison, of Springfield, already is promoting a bill. Republican lawmakers want to reinstate a $350,000 limit on noneconomic damages such as pain and suffering that was struck down by the Missouri Supreme Court in July 2012. The court said the limit violated a common-law right to seek damages for medical malpractice that predated the adoption of a state constitution in 1820. The proposed legislation would abolish that common-law right and instead make medical liability lawsuits subject to state law. A similar bill stalled earlier this year in the Senate.? ASBESTOS UPDATE: AK Steel Workers Can Sue Over Mesothelioma ----------------------------------------------------------- Surviving Mesothelioma reports that workers and their families have won a victory in Pennsylvania after the state Supreme Court ruled that they could sue former employers over late-manifesting industrial diseases like mesothelioma. The decision focused on a provision in Pennsylvania's Workers' Compensation Act that says workers cannot sue an employer if their occupational disease occurred more than 300 weeks after their on- the-job exposure. While many occupational injuries and diseases occur within weeks or months of exposure to a toxin, asbestos diseases like mesothelioma are a notable exception. Believed to be caused by chronic irritation from inhaled or ingested asbestos fibers, mesothelioma does not usually begin to cause symptoms until at least a decade after exposure. Expressing the opinion of the majority, Supreme Court Justice Debra Todd said it was "inconceivable that the legislature, in enacting a statute specifically designed to benefit employees, intended to leave a certain class of employees who have suffered the most serious of work-related injuries without any redress under the act or at common law." The decision overturns recent Superior Court decisions which upheld the 300-week provision. In an online article on the decision, Pennsylvania attorney Anne Kane says the case of Tooey v. AK Steel Corp., et al, "has far-reaching implications for Pennsylvania employers whose operations may expose employees to alleged causes of an 'occupational disease'" such as mesothelioma. Such employers may have thought the Worker's Compensation Act made them immune to mesothelioma lawsuits like Tooey's but Ms. Kane suggests they review their company insurance programs in light of the new decision. Pennsylvania has one of the highest rates of mesothelioma of any state due, in part, to its long history of asbestos mining. The state was also home to shipbuilding operations, another industry with a high rate of asbestos exposure and mesothelioma deaths. Mesothelioma is an extremely rare cancer, even among those who have been exposed to asbestos.? ASBESTOS UPDATE: Magnetek Inc. Continues to Defend PI Suits ----------------------------------------------------------- Magnetek, Inc., continues to defend itself against asbestos- related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 29, 2013. The Company has been named, along with multiple other defendants, in asbestos-related lawsuits associated with business operations previously acquired by the Company, but which are no longer owned. During the Company's ownership, none of the businesses produced or sold asbestos-containing products. With respect to these claims, the Company believes that it has no such liability. For such claims, the Company is uninsured and either contractually indemnified against liability, or contractually obligated to defend and indemnify the purchaser of these former Magnetek business operations. The Company aggressively seeks dismissal from these proceedings. Management does not believe the asbestos proceedings, individually or in the aggregate, will have a material adverse effect on its financial position or results of operations. Given the nature of the issues, uncertainty of the ultimate outcome, and inability to estimate the potential loss, no amounts have been reserved for these matters. Magnetek, Inc., is a provider of digital power control systems that are used to control motion and power primarily in material handling, elevator, and energy delivery applications. Its products are sold directly or through manufacturers' representatives to original equipment manufacturers (OEM) for incorporation into their products, to system integrators and value-added resellers for assembly and incorporation into end user systems, to distributors for resale to OEMs and contractors, and to end-users for repair and replacement purposes. Magnetek's systems consist primarily of programmable motion control and power conditioning systems used in the applications, such as overhead cranes and hoists; elevators; coal mining equipment, and renewable energy sources. Its customers include the industrial crane and hoist companies in North America and the elevator builders. ASBESTOS UPDATE: American Locker Continues to Defend 32 Cases ------------------------------------------------------------- American Locker Group Incorporated continues to defend itself against 32 asbestos-related cases, 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. Starting in September 1998, the Company has been named as an additional defendant in approximately 234 cases pending in state court in Massachusetts and one in the state of Washington. The plaintiffs in each case assert that a division of the Company manufactured and furnished components containing asbestos to a shipyard during the period from 1948 to 1972 and that injury resulted from exposure to such products. The assets of this division were sold by the Company in 1973. During the process of discovery in certain of these actions, documents from sources outside the Company have been produced which indicate that the Company appears to have been included in the chain of title for certain wall panels which contained asbestos and which were delivered to the Massachusetts shipyards. Defense of these cases has been assumed by the Company's insurance carrier, subject to a reservation of rights. Settlement agreements have been entered in approximately 35 cases with funds authorized and provided by the Company's insurance carrier. Further, over 167 cases have been terminated as to the Company without liability to the Company under Massachusetts procedural rules. Therefore, the balance of unresolved cases against the Company as of March 25, 2013, the most recent date information is available, is approximately 32 cases. While the Company cannot estimate potential damages or predict what the ultimate resolution of these asbestos cases may be because the discovery proceedings on the cases are not complete, based upon the Company's experience to date with similar cases, as well as the assumption that insurance coverage will continue to be provided with respect to these cases, at the present time, the Company does not believe that the outcome of these cases will have a significant adverse impact on the Company's operations or financial condition. American Locker Group Incorporated is a manufacturer of lockers, locks and keys with a range of applications for use in numerous industries. The Company serves customers in a range of industries in all 50 states and in Canada, Mexico, Europe, Asia and South America. The Company's products can be categorized as either mailboxes or lockers. Mailboxes are used for the delivery of mail, packages and other parcels to multi-tenant facilities. Lockers are used for applications other than mail delivery, and its lockers are key-controlled checking lockers. ASBESTOS UPDATE: Metropolitan Life Continues to Defend PI Suits --------------------------------------------------------------- Metropolitan Life Insurance Company continues to defend itself against asbestos-related personal injury lawsuits, 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. Metropolitan Life Insurance Company is and has been a defendant in a large number of asbestos-related suits filed primarily in state courts. These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. As reported in the consolidated financial statements for the year ended December 31, 2012, Metropolitan Life Insurance Company received approximately 5,303 asbestos-related claims in 2012. During the nine months ended September 30, 2013 and 2012, Metropolitan Life Insurance Company received approximately 4,256 and 3,909 new asbestos-related claims, respectively. The number of asbestos cases that may be brought, the aggregate amount of any liability that Metropolitan Life Insurance Company may incur and the total amount paid in settlements in any given year are uncertain and may vary significantly from year to year. Metropolitan Life Insurance Company reevaluates on a quarterly and annual basis its exposure from asbestos litigation, including studying its claims experience, reviewing external literature regarding asbestos claims experience in the U.S., assessing relevant trends impacting asbestos liability and considering numerous variables that can affect its asbestos liability exposure on an overall or per claim basis. These variables include bankruptcies of other companies involved in asbestos litigation, legislative and judicial developments, the number of pending claims involving serious disease, the number of new claims filed against it and other defendants and the jurisdictions in which claims are pending. Based upon its regular reevaluation of its exposure from asbestos litigation, Metropolitan Life Insurance Company has updated its liability analysis for asbestos-related claims through September 30, 2013. MetLife, Inc. (MetLife), the owner of 100% shares of Metropolitan Life, is a provider of insurance, annuities and employee benefit programs, serving 90 million customers in over 50 countries. Through its subsidiaries and affiliates, MetLife operates in the United States, Japan, Latin America, Asia Pacific, Europe and the Middle East. It is organized into six segments: Insurance Products, Retirement Products, Corporate Benefit Funding and Auto & Home (collectively, U.S. Business), and Japan and Other International Regions (collectively, International). U.S. Business provides insurance and financial services products, including life, dental, disability, auto and homeowner insurance. In September 2013, MetLife Inc and Thayer Lodging Group acquired the 365-room Hilton Los Cabos Beach & Golf Resort in Cabo San Lucas, Mexico in a joint venture. In October 2013, Banco Bilbao Vizcaya Argentaria SA sold its entire 64.3% interest in Administradora de Fondos de Pensiones Provida SA (AFP Provida) to Metlife Inc's subsidiaries. ASBESTOS UPDATE: Park-Ohio Industries Continues to Defend Suits --------------------------------------------------------------- Park-Ohio Industries, Inc., continues to defend itself against asbestos-related personal injury lawsuits, 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 were a co-defendant in approximately 268 cases asserting claims on behalf of approximately 612 plaintiffs alleging personal injury as a result of exposure to asbestos. These asbestos cases generally relate to production and sale of asbestos-containing products and allege various theories of liability, including negligence, gross negligence and strict liability, and seek compensatory and, in some cases, punitive damages. In every asbestos case in which we are named as a party, the complaints are filed against multiple named defendants. In substantially all of the asbestos cases, the plaintiffs either claim damages in excess of a specified amount, typically a minimum amount sufficient to establish jurisdiction of the court in which the case was filed (jurisdictional minimums generally range from $25,000 to $75,000), or do not specify the monetary damages sought. To the extent that any specific amount of damages is sought, the amount applies to claims against all named defendants. There are only seven asbestos cases, involving 25 plaintiffs, that plead specified damages. In each of the seven cases, the plaintiff is seeking compensatory and punitive damages based on a variety of potentially alternative causes of action. In three cases, the plaintiff has alleged compensatory damages in the amount of $3.0 million for four separate causes of action and $1.0 million for another cause of action and punitive damages in the amount of $10.0 million. In the fourth case, the plaintiff has alleged against each named defendant, compensatory and punitive damages, each in the amount of $10.0 million, for seven separate causes of action. In the fifth case, the plaintiff has alleged compensatory damages in the amount of $20.0 million for three separate causes of action and $5.0 million for another cause of action and punitive damages in the amount of $20.0 million. In the remaining two cases, the plaintiffs have each alleged against each named defendant, compensatory and punitive damages, each in the amount of $50.0 million, for four separate causes of action. Historically, we have been dismissed from asbestos cases on the basis that the plaintiff incorrectly sued one of our subsidiaries or because the plaintiff failed to identify any asbestos- containing product manufactured or sold by us or our subsidiaries. We intend to vigorously defend these asbestos cases, and believe we will continue to be successful in being dismissed from such cases. However, it is not possible to predict the ultimate outcome of asbestos-related lawsuits, claims and proceedings due to the unpredictable nature of personal injury litigation. Despite this uncertainty, and although our results of operations and cash flows for a particular period could be adversely affected by asbestos- related lawsuits, claims and proceedings, management believes that the ultimate resolution of these matters will not have a material adverse effect on our financial condition, liquidity or results of operations. Among the factors management considered in reaching this conclusion were: (a) our historical success in being dismissed from these types of lawsuits on the bases mentioned above; (b) many cases have been improperly filed against one of our subsidiaries; (c) in many cases the plaintiffs have been unable to establish any causal relationship to us or our products or premises; (d) in many cases, the plaintiffs have been unable to demonstrate that they have suffered any identifiable injury or compensable loss at all or that any injuries that they have incurred did in fact result from alleged exposure to asbestos; and (e) the complaints assert claims against multiple defendants and, in most cases, the damages alleged are not attributed to individual defendants. Additionally, we do not believe that the amounts claimed in any of the asbestos cases are meaningful indicators of our potential exposure because the amounts claimed typically bear no relation to the extent of the plaintiff's injury, if any. Our cost of defending these lawsuits has not been material to date and, based upon available information, our management does not expect its future costs for asbestos-related lawsuits to have a material adverse effect on our results of operations, liquidity or financial position." Park-Ohio Holdings Corp. (Holdings) conducts its business primarily through the subsidiaries owned by its direct subsidiary, Park-Ohio Industries, Inc. (Park-Ohio). It is an industrial supply chain logistics and diversified manufacturing business operating in three segments: Supply Technologies, Aluminum Products and Manufactured Products. Supply Technologies provides the Company's customers with Total Supply Management services for a range of specialty production components. Its Aluminum Products business manufactures cast and machined aluminum components, and the Company's Manufactured Products business is a manufacturer of engineered industrial products. The Company's businesses serve industrial original equipment manufacturers in a variety of industrial sectors. On March 26, 2012, it acquired Fluid Routing Solutions Inc. In April 2013, the Company Fluid Routing Solutions (FRS) business acquired all of the assets of Bates Acquisition LLC and Bates Real Estate Acquisition, LLC. ASBESTOS UPDATE: Administrative Suit v. EEI Unit Remains Pending ---------------------------------------------------------------- An administrative suit against a subsidiairy of Ecology and Environment, Inc., remains pending, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended July 31, 2013. On September 21, 2012, the Colorado Department of Public Health and Environment issued a proposed Compliance Order on Consent to the City and County of Denver and to Walsh Environmental Scientists and Engineers, LLC. Walsh is a majority-owned subsidiary of Ecology and Environment, Inc. The Proposed Consent Order concerns construction improvement activities of certain property owned by Denver which was the subject of asbestos remediation. Denver had entered into a contract with Walsh for Walsh to provide certain environmental consulting services (asbestos monitoring services) in connection with the asbestos containment and/or removal performed by other contractors at Denver's real property. Without admitting liability or the Department's version of the underlying facts, Walsh on February 13, 2013 entered into a Compliance Order on Consent with the Department and paid a penalty of less than $0.1 million and paid for a Supplemental Environmental Project to benefit the public at large in an amount less than $0.1 million. Denver was served with a final Compliance Order and Assessment of Administrative Penalty against Denver alone for approximately $0.2 million. Under Walsh's environmental consulting contract with Denver, Walsh has agreed to indemnify Denver for certain liabilities where Walsh could potentially be held responsible for a portion of the penalty imposed upon Denver. Walsh has put its professional liability and general liability carriers on notice of this indemnification claim by Denver. The Company believes that this administrative proceeding involving Walsh will not have an adverse material effect upon its operations or cash flows. Ecology and Environment, Inc. was incorporated in February 1970 as a global broad-based environmental consulting firm whose underlying philosophy is to provide professional services worldwide so that sustainable economic and human development may proceed with acceptable impact on the environment. Together with its subsidiaries, EEI has direct and indirect ownership in 19 wholly owned and majority owned operating subsidiaries in 12 countries. Our staff is comprised of individuals representing more than 80 scientific, engineering, health, and social disciplines working together in multidisciplinary teams to provide innovative environmental solutions. The Company has completed more than 50,000 projects for a wide variety of clients in more than 120 countries, providing environmental solutions in nearly every ecosystem on the planet. The Company's revenues originate from federal, state and local governments, domestic private clients, and private and governmental international clients. ASBESTOS UPDATE: Tyco Records Loss Related to Yarway Ch. 11 ----------------------------------------------------------- Tyco International Ltd. recorded an expected loss upon deconsolidation of $10 million related to the Chapter 11 filing of Yarway Corporation, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 27, 2013. The Company and certain of its subsidiaries along with numerous other companies are named as defendants in personal injury lawsuits based on alleged exposure to asbestos containing materials. These cases typically involve product liability claims based primarily on allegations of manufacture, sale or distribution of industrial products that either contained asbestos or were attached to or used with asbestos containing components manufactured by third parties. Each case typically names between dozens to hundreds of corporate defendants. While the Company has observed an increase in the number of these lawsuits over the past several years, including lawsuits by plaintiffs with mesothelioma related claims, a large percentage of these suits have not presented viable legal claims and, as a result, have been dismissed by the courts. The Company's historical strategy has been to mount a vigorous defense aimed at having unsubstantiated suits dismissed, and, where appropriate, settling suits before trial. Although a large percentage of litigated suits have been dismissed, the Company cannot predict the extent to which it will be successful in resolving lawsuits in the future. In addition, the Company continues to assess its strategy for resolving asbestos claims. Due to the number of claims and limited amount of assets held by Yarway Corporation, one of the Company's indirect subsidiaries, on April 22, 2013 Yarway 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. As a result of this filing, all asbestos claims against Yarway have been stayed pending confirmation of a plan of reorganization by the Bankruptcy Court. Yarway's goal is to negotiate, obtain approval of, and consummate a plan of reorganization that establishes an appropriately funded trust to provide for the fair and equitable payment of legitimate current and future Yarway asbestos claims, accompanied by appropriate injunctive relief permanently protecting Yarway and certain other protected parties from any further asbestos claims arising from products manufactured, sold, and/or distributed by Yarway. Upon confirmation of such plan of reorganization, the Company expects to deconsolidate Yarway. As a result of filing the voluntary petition during the year, the Company recorded an expected loss upon deconsolidation of $10 million related to the Yarway bankruptcy petition. Although the terms of Yarway's plan of reorganization are unknown at this time, the Company does not expect them to have a material adverse effect on the Company's results of operations, financial condition or liquidity. As of September 27, 2013, the Company has determined that there were approximately 5,200 claims pending against it, its subsidiaries or entities for which the Company has assumed responsibility in connection with acquisitions and divestitures. This amount reflects the Company's current estimate of the number of viable claims made against such entities and includes adjustments for claims that are not actively being prosecuted, identify incorrect defendants, are duplicative of other actions or for which the Company is indemnified. Tyco International Ltd is a holding company of Tyco Group. The Tyco Group (the Group) is a diversifies, global provider of diversified products ranging from electronic security and alarm monitoring to fire-fighting equipment and breathing apparatus, water purification and flow control solutions. The Company diversifies its activities into three segments: Tyco Security Solutions; Tyco Fire Protection and Tyco Flow Control. The Tyco Security Solutions segment designs, sells, installs, services and monitors electronic security systems, as well as designs, manufactures and sells security products. The Tyco Fire Protection segment designs, manufactures, sells, installs and services fire detection and fire suppression systems. The Tyco Flow Control segment designs, manufactures, sells and services valves, pipes, fittings, automation and controls, valve automation and heat tracing products for various industries. On November 8, 2013, the Company acquired Westfire Inc. ASBESTOS UPDATE: IntriCon Continues to Defend Exposure Suits ------------------------------------------------------------ IntriCon Corporation continues to defend itself against asbestos- related lawsuits, 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 is a defendant along with a number of other parties in lawsuits alleging that plaintiffs have or may have contracted asbestos-related diseases as a result of exposure to asbestos products or equipment containing asbestos sold by one or more named defendants. These lawsuits relate to the discontinued heat technologies segment which was sold in March 2005. Due to the non- informative nature of the complaints, the Company does not know whether any of the complaints state valid claims against the Company. Certain insurance carriers have informed the Company that the primary policies for the period August 1, 1970-1978 have been exhausted and that the carriers will no longer provide defense and insurance coverage under those policies. However, the Company has other primary and excess insurance policies that the Company believes afford coverage for later years. Some of these other primary insurers have accepted defense and insurance coverage for these suits, and some of them have either ignored the Company's tender of defense of these cases, or have denied coverage, or have accepted the tenders but asserted a reservation of rights and/or advised the Company that they need to investigate further. Because settlement payments are applied to all years a litigant was deemed to have been exposed to asbestos, the Company believes that it will have funds available for defense and insurance coverage under the non-exhausted primary and excess insurance policies. However, unlike the older policies, many of the policies covering later years (approximately 1984 and thereafter) have exclusions for any asbestos products or operations, and thus do not provide insurance coverage for asbestos-related lawsuits. Management believes that the number of insurance carriers involved in the defense of the suits, and the significant number of policy years and policy limits under which these insurance carriers are insuring the Company, make the ultimate disposition of these lawsuits not material to the Company's consolidated financial position or results of operations. IntriCon Corporation is an international company engaged in designing, developing, engineering and manufacturing body-worn devices. IntriCon serves the body-worn device market by designing, developing, engineering and manufacturing micro-miniature products, microelectronics, micro-mechanical assemblies and complete assemblies, primarily for bio-telemetry devices, hearing instruments and professional audio communication devices. The Company operates in one operating segment, the body-worn device segment. The Company's core technologies is focused on three main markets: medical, hearing health and professional audio communications. In October 2012, it sold its 50% ownership interest in Global Coils. ASBESTOS UPDATE: NY Court Allows Joint Trial for 10 PI Cases ------------------------------------------------------------ Judge George Silver of the Supreme Court, New York County, ordered that the asbestos-related personal injury actions filed by William N. Barton, Patrick W. Lowden, Jr., and Francis J. Smith will be tried jointly. Judge Silver also ordered that the asbestos- related personal injury actions filed by Robert D. Freeman, Angel Lamberty, Francis Marino, and Theodore Pendergast will be tried jointly. Furthermore, Judge Silver ordered that the asbestos- related personal injury actions filed by Charles Dietrich, Robert McDonald, and Ronald Yetter will be tried jointly. In support of his decision, Judge Silver stated, "Plaintiffs have established that there is sufficient commonality among the three plaintiffs in the proposed Lung Cancer Group -- Barton, Lowden and Smith -- so as to warrant a joint trial. Obviously, all three plaintiffs suffered from lung cancer, meaning that the expert medical testimony regarding the etiology and pathology of the plaintiffs' conditions will be similar. All three plaintiffs in the Lung Cancer Group are deceased, and each is represented by the same law firm. Moreover, although the three plaintiffs did not engage in identical occupations at identical worksites over identical periods of time, all three plaintiffs allege exposure from the same or similar products -- namely asbestos-containing insulation, boilers, pumps and gaskets. Testimony and evidence regarding most of these products and the type of asbestos exposure that could result them will be identical or nearly so in all three cases. The fact that Smith alone alleges exposure to asbestos- containing floor tiles, arc proofing and arc shoots does not warrant denying plaintiffs' order to show cause. Further, the alleged periods of exposure for these three plaintiffs range from the 1950s through the 1990s, and therefore, the state of art evidence will sufficiently overlap. Accordingly, the Lung Cancer Group actions will be tried jointly." Judge Silver further stated, "Among the proposed Mesothelioma Group, there is sufficient commonality among plaintiffs Freeman, Lamberty, Marino and Pendergast to warrant a joint trial of their actions. However, because Dietrich, McDonald and Yetter allege exposure while working at a shipyard (Dietrich and Yetter) or while serving in the Army (McDonald) it is appropriate to segregate these actions as they potentially involve federal government contractor defenses that would not be applicable to the other cases." The cases are WILLIAM N. BARTON CHARLES W. DIETRICH ROBERT D. FREEMAN ANGEL LAMBERTY PATRICK W. LOWDEN FRANCIS MARINO ROBERT C. MCDONALD THEODORE PENDERGAST FRANCIS J. SMITH RONALD B. YETTER, Plaintiffs, v. A.O. SMITH WATER PRODS. CO., et al., Defendants, DOCKET NO. 102900-2004, NO. 115214-2003., 100867-2004, 100988- 2004, 101357-2004, 116830-2003, 111778-2004, 104850-2004, 118280- 2003, 116648-2003 (N.Y. Sup.). A full-text copy of Judge Silver's amended decision and order, dated Dec. 9, 2013, is available at http://is.gd/IDowL8from Leagle.com. ASBESTOS UPDATE: NY Court Partly Junks PI Suit v. Islanders ----------------------------------------------------------- Charles Conforti, Sr., and Janet Conforti seek to recover for damages they have allegedly sustained on account of Mr. Conforti's exposure to asbestos while working at the Nassau County Veterans Memorial Coliseum for approximately 21 years. The Coliseum is owned by the defendant County of Nassau. Defendant New York Islanders Hockey Club, L.P., filed a motion for an order dismissing the complaint against it on the grounds that the all claims are time barred, that documentary evidence provides a complete defense, and that the complaint fails to state a claim upon which relief can be granted. Judge Daniel R. Palmieri of the Supreme Court, Nassau County, in a decision dated Nov. 26, 2013, granted in part Islanders' motion. The judge denied the motion that is based on documentary evidence after finding that because the Plaintiff began working in the Coliseum prior to 1979 -- the date on the earliest lease agreement presented by Islanders -- the Court could not find the documentary evidence conclusive in Islanders' favor. In the same order, Judge Palmieri granted ARAMARK Corporation's cross motion, holding that ARAMARK is absent from all the leases and amendments as a party who had any role in maintenance or construction at the Coliseum as an owner or tenant, even assuming that its legal position can be described as the latter. The case is CHARLES CONFORTI, SR., and JANET CONFORTI, Plaintiff, v. COUNTY OF NASSAU, COUNTY OF NASSAU, DEPARTMENT OF PUBLIC WORKS, NEW YORK ISLANDERS HOCKEY CLUB, L.P., SMG, SMG FACILITY MANAGEMENT CORPORATION, ARAMARK CORPORATION, SAVOR, and SMG FOOD AND BEVERAGE LLC, Defendants, 600858/13 (Sup Ct, Nassau County). A full-text copy of Judge Palmieri's Nov. 26, 2013 decision is available at http://is.gd/gyd593from Leagle.com. Attorney for Plaintiff is: DELL & DEAN, PLLC 1325 Franklin Avenue, Ste. 100 Garden City, NY 11530 Tel: (516) 880-9700 Fax: (516) 880-9707 Robert A. Spolzino, Esq. -- robert.spolzino@wilsonelser.com -- at Wlison, Elser, Moskowitz, Edelman & Dicker, LLP, in Garden City, New York, Attorney for Defendant County of Nassau and County of Nassau Dept. Of Public Works. John P. McEntee, Esq. -- jmcentee@farrellfritz.com -- and Kathryn C. Cole, Esq. -- kcole@farrellfritz.com -- at Farrell Fritz, P.C., in Uniondale, New York, Attorney for Defendants New York Islanders Hockey Club, L.P. Joseph Salvo, Esq. -- jsalvo@gordonrees.com -- and Adam S. Furmansky, Esq. -- afurmansky@gordonrees.com -- at Gordon & Rees, LLP, in New York, Attorney for Defendants SMG Facility Management Corporation, Savor, SMG, SMG Food and Beveral LLC. Richard Fama, Esq. -- rfama@cozen.com -- at Cozen O'Connor, in New York, Attorneys for Defendant ARAMARK Corporation. ASBESTOS UPDATE: Calif. Court Affirms Order Dismissing "Hill" Suit ------------------------------------------------------------------ Charles E. Hill on August 6, 2012, filed a complaint against Burnis Simon, Herbert Hafif, the Law Offices of Herbert Hafif, and the Hafif Family Foundation. The complaint alleges that Hill worked as an employee of the law firm in a building owned by Hafif and managed by Simon. It further alleges that Hill was exposed to airborne asbestos while working in the building and that defendants concealed this exposure. Based on these allegations, the complaint purports to set forth a class action for battery, premises liability and fraud. The Plaintiff appeals an order dismissing his action with prejudice. The trial court entered the order after Hill failed to appear at a hearing set pursuant to an order to show cause regarding dismissal and sanctions. In a decision dated Dec. 13, 2013, the Court of Appeals of California, Second District, Division Three, concluded that the trial court did not abuse its discretion when it dismissed Hill's case. Accordingly, the Court of Appeals affirmed the order. The case is CHARLES E. HILL, Plaintiff and Appellant, v. BURNIS SIMON et al., Defendants and Respondents, NO. B247668 (Cal. App.). A full-text copy of the Decision is available at http://is.gd/keCbSxfrom Leagle.com. Charles E. Hill appeared on behalf of himself. No appearances by Defendants and Respondents. ASBESTOS UPDATE: "McKay" Suit v. ConEdison to Proceed to Trial -------------------------------------------------------------- Judge Sherry Klein Heitler of the Supreme Court, New York County, denied Consolidated Edison Company of New York Inc.'s motion for summary judgment filed in the asbestos-related personal injury action titled MARGARET McKAY-O'DEA, as Administratrix for the estate of SAMUEL McKAY, Plaintiffs, v. A.O. SMITH WATER PRODUCTS CO., et al., Defendants, DOCKET NO. 190305/12, MOTION SEQ. 002 (N.Y. Sup.), after finding that the testimony of John Tax, a former ConEdison mechanic, shows that there is an issue of fact whether ConEdison knew of the hazards associated with the use of asbestos-containing products at its powerplants. A full-text copy of Judge Heitler's decision and order dated Dec. 2, 2013, is available at http://is.gd/OiQ198from Leagle.com. ASBESTOS UPDATE: Texas Court Junks Principal's Whistleblower Suit ----------------------------------------------------------------- Marcelino Franco was a principal at the Robert F. Kennedy Pre-K Academy in the Ysleta Independent School District. He sent a memorandum to his immediate supervisor, the chief academic officer, Gloria Polanco-McNealy, reporting various "asbestos hazards" in the school and raising several "Administrative Issues." Franco asserted that the current working conditions breached his employment contract with the ISD and also the "2472 Code of Ethics and Standard Practices for Texas Educators." He requested a transfer to another school within the district. Ms. Polanco- McNealy responded that the ISD's facilities department was unaware of any asbestos at the school. Several communications ensued between Franco and Polanco-McNealy. Eventually, the ISD indefinitely suspended Franco, and he filed a whistleblower claim. The trial court denied the ISD's plea to the jurisdiction. The court of appeals affirmed, holding that "Franco produced sufficient evidence of his good faith belief that the [ISD's] superintendent and trustees were authorized to regulate under or enforce the Asbestos Act." The court of appeals added that Franco's evidence raised a fact issue about whether his belief was objectively reasonable in light of his training and experience. The Supreme Court of Texas, in an opinion delivered on Dec. 13, 2013, disagreed and held that, Franco has failed to show an objective, good-faith belief that the ISD qualifies as an "appropriate law-enforcement authority" under the Act. Therefore, the courts below erred in denying the ISD's plea to the jurisdiction. Accordingly, the Supreme Court granted the petition for review and, without hearing oral argument, reversed the court of appeals' judgment and dismissed the case. The case is YSLETA INDEPENDENT SCHOOL DISTRICT, Petitioner, v. MARCELINO FRANCO, Respondent, NO. 13-0072 (Tex.). A full-text copy of the Opinion is available at http://is.gd/J0pdtUfrom Leagle.com. ASBESTOS UPDATE: "Clayton" Suit Remanded to NY State Court ---------------------------------------------------------- Judge Richard J. Arcara of the U.S. District Court for the Western District of New York remanded to the New York State Supreme Court, Erie County, the asbestos-related personal injury action titled EDWARD CLAYTON and DONNA CLAYTON, Plaintiffs, v. AIR & LIQUID SYSTEMS CORP., et al., Defendants, NO. 13-CV-847-A (W.D.N.Y.). The case is pending on a petition for federal-officer removal pursuant to 28 U.S.C. Section 1442(a)(1). Defendant Crane Co. removed the action from the Supreme Court, State of New York, County of Erie, based upon information that plaintiff Edward Clayton was exposed to asbestos while working with Crane Co. valves and pumps while serving in the United States Navy Reserves aboard the USS Rizzi from 1953 to 1957 and in the United States Marine Corps aboard the USS Breckinridge from 1957 to 1959. The action was referred to Magistrate Judge Hugh B. Scott under 28 U.S.C. Section 636(b)(1) for conduct of pretrial proceedings. A full-text copy of Judge Arcara's Order dated Dec. 12, 2013, is available at http://is.gd/dh32cLfrom Leagle.com. ASBESTOS UPDATE: "Perry" Suit v. Railroad Friction Products Nixed ----------------------------------------------------------------- Plaintiff Alice Perry, as administratrix and in her own right, asserts that her husband developed asbestos-related injuries while installing and removing Railroad Friction Products Corporation brake shoes located on various types of railcars. RFPC argues that the Plaintiff's complaint should be dismissed because her claims are preempted by the Locomotive Inspection Act. The Plaintiff argues that the LIA does not preempt her claims because the brake shoes that the Decedent was exposed to were not found on a locomotive. The sole issue in the case is whether the LIA operates to preempt the Plaintiff's state law claims, especially in light of the Supreme Court's decision in Kurns v. Railroad Friction Products Corp., 565 U.S. ___, 132 S.Ct. 1261 (2012), which affirmed the breadth of the long-standing field preemption of the LIA. Specifically, the issue is whether the LIA's broad preemptive scope covers the Plaintiff's claims relating to the Decedent's exposure to brake shoes located on railcars, and not on locomotives. Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania held that the LIA operates to preempt the Plaintiff's claims because the railcar brake shoes are a "part or appurtenance" of the locomotive. Accordingly, Judge Robreno granted the Defendant's motion to dismiss. The case is ALICE PERRY, Administratrix of the Estate of George Perry, deceased and ALICE PERRY Plaintiff, v. A.W. CHESTERTON, INC., ET AL., Defendants, MDL NO. 875 relating to CIVIL ACTION NO. 2:95-CV-01996-ER (E.D. Pa.). A full-text copy of Judge Robreno's Dec. 5, 2013, memorandum is available at http://is.gd/1st9wYfrom Leagle.com. ASBESTOS UPDATE: Ford Summary Judgment Bid in "Barawa" Suit Denied ------------------------------------------------------------------ In an asbestos personal injury action, defendant Ford Motor Company moves for summary judgment dismissing the complaint and all cross-claims asserted against it on the ground that there is no material issue of fact whether plaintiff Robert Barawa was exposed to asbestos fibers released from a product manufactured, distributed, or sold by Ford. The Plaintiffs argue that summary judgment is inappropriate because Ford's products included numerous asbestos-containing components manufactured by third- party suppliers. In a decision dated Dec. 2, 2013, Judge Sherry Klein Heitler of the Supreme Court, New York County, granted Ford's motion for summary judgment only with respect to the Plaintiffs' eleventh cause of action for loss of consortium. Otherwise, Ford's motion for summary judgment is denied as the Court found that Ford's only supporting proof with regards to its assertion that it has not duty to warn against asbestos-containing products that were manufactured by third-party supplies is an affidavit that lacked documentary support. This unsupported, uncross-examined evidence cannot satisfy the Defendant's burden, Judge Heitler said. The case ROBERT BRUCE BARAWA and DEBORAH ANN BURAWA, Plaintiffs, v. ACKER DRILL COMPANY, et al., Defendants, NO. 190272/12, MOTION SEQ. NO. 003 (N.Y. Sup.). A full-text copy of Judge Heitler's Decision is available at http://is.gd/KXYvGVfrom Leagle.com. ASBESTOS UPDATE: Calif. Inmate's Suit Continues v. Supervisors -------------------------------------------------------------- Markee D. Carter, a California state prisoner proceeding pro se, filed a civil rights complaint alleging, among other things, that PIA Supervisor Gary Loredo and PIA Manager Philip Earley intentionally failed to include "exposure to asbestos" on the worker's compensation form. Liberally construed, Carter has stated a cognizable claim of deliberate indifference lo health and safety. The Hon. Paul S. Grewal, magistrate judge of the U.S. District Court for the Northern District of California, dismissed several defendants, and served the complaint on the remaining defendants. Defendants Brad Smith, Luu T. Rogers, Jeremy Young, John Walker, K. Davis, and Elizabeth Babcock are dismissed from the complaint. The Court directed the service of a Notice of Lawsuit and Request for Waiver of Service of Summons to Supervisor Joe Dobie, PIA Supervisor Cary Laredo, and PIA Manager Philip Earley at San Quentin State Prison. The case is MARKEE D. CARTER, Plaintiff, v. BRAD SMITH, et al., Defendants, CASE NO. C 13-4373 PSG (PR)(N.D. Calif.). A full-text copy of Magistrate Judge Grewal's Decision dated Dec. 5, 2013, is available at http://is.gd/ZeQMLufrom Leagle.com. ASBESTOS UPDATE: "Fuhrman" PI Suit Remanded to Calif. Court ----------------------------------------------------------- The United States Judicial Panel, Multidistrict Litigation, overseeing MDL No. 875 (IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)), issued a conditional remand order on Dec. 11, 2013, remanding the asbestos-related action titled Fuhrman et al v. GENERAL ELECTRIC COMPANY et al. to the U.S. District Court for the Northern District of California. A full- text copy of the MDL Court's Decision is available at http://is.gd/eTKN2ifrom Leagle.com. ASBESTOS UPDATE: Fibro Taking a Toll on Firefighters, Study Says ---------------------------------------------------------------- Nancy Grover, writing for Risk & Insurance, reported that exposure to asbestos is believed to be responsible for a high rate of mesothelioma among some firefighters. A new study shows firefighters in three major cities had a rate of the cancer two times greater than the country's overall population. The findings are included in a study that shows higher rates of several types of cancers among firefighters. The study confirms results of other, smaller studies. Cancers of the respiratory, digestive, and urinary systems accounted mainly for the higher cancer rates in the study population. It was the first study to identify an excess of mesothelioma in U.S. firefighters, the researchers said. Mesothelioma is described as a rare form of cancer that is typically seen in the outer lining of the lungs and internal chest wall. It is most commonly associated with exposure to asbestos. For the study, the researchers analyzed cancers and cancer deaths among nearly 30,000 firefighters in Chicago, Philadelphia, and San Francisco through 2009. The firefighters had been employed since 1950. The study was led by NIOSH in collaboration with the National Cancer Institute and the Department of Public Health Sciences in the University of California at Davis and was supported in part by funding from the U.S. Fire Administration. The findings did not address other factors that can influence risks for cancer such as smoking, diet, and alcohol consumption. "In a second phase of the study, the researchers will further examine employment records from the three fire departments to derive information on occupational exposures and to look at exposures in relation to cancer incidence and mortality," according to the study. ASBESTOS UPDATE: Fibro Testing, Removal Planned for High School --------------------------------------------------------------- Sanatoga Post reported that given the age of Pottsgrove High School, built in 1955 and renovated several times since, it might have been considered inevitable that asbestos materials were used in some of its construction. Now that the Kauffman Road building is undergoing extensive repair, and may be the subject of renovation and expansion beginning in 2014, the Board of School Directors has hired expert help for lead-based paint and asbestos testing and removal there. Directors agreed unanimously and without comment on Dec. 3, to sign a contract for the work with JMSI Environmental Corp. at a cost of $7,380. The agreement was recommended by Superintendent Shellie Feola as a business action item on the board's agenda. Specifics of its scope of work, and a potential timeline for completion, were not discussed. However the district's "Board Notes" newsletter, published following the meeting and distributed by e-mail, said the firm will develop specifications "to be incorporated in the bids" for the renovation project. JMSI is located in Swoyersville PA (Luzerne County), and "has been providing environmental consulting, testing and compliance services to local and regional clients" for more than 20 years, according to its website. It has done work for the Norristown Area, Saucon Valley, Bethlehem, Nazareth, Wallenpaupack Area, Delaware Valley, Hazleton Area, Hempfiel and Mifflin County school districts, and other clients, the website reported. The company specializes in Asbestos Hazard Emergency Response Act compliance programs for Pennsylvania schools, the website added. ASBESTOS UPDATE: MP Highlights Case of Fibro Killing Family ----------------------------------------------------------- Hartlepool Mail reported that the MP in Hartlepool, England, has welcomed a new compensation fund for victims of mesothelioma -- but has slammed the Government for not going far enough to give sufferers justice. Iain Wright described the diagnosis of the aggressive form of cancer caused by exposure to asbestos as a "death sentence". Speaking in the House of Commons, Mr Wright said thousands of people in Hartlepool have died painful deaths as a result of the danger they were exposed to at work, and says tragically there are more deaths to come. The MP said the North-East is the worst-affected region, with Hartlepool being the 16th worst-affected constituency in the country. He said he was once made aware of a tragic case in the town when a woman lost her father, husband, son and then her own life to the killer disease. Under a proposed new GBP350m fund, sufferers will now be able to get damages if they are unable to trace the employers who exposed them to the deadly dust. But Mr Wright has criticised the legislation, saying some aspects of the bill are "monumentally unfair". Only people who were diagnosed after July 2012 will receive payouts and those payouts will only be 75 per cent of the average asbestos compensation levels. The compensation fund is also only for those who were directly employed, which Mr Wright criticised for failing to take into account wives and children who have been exposed at home. He told the Mail: "It's a step in the right direction, but it doesn't go far enough. "Sufferers have had to fight for far too long. Yet despite the thousands who have died as a result of this awful disease only those who have been diagnosed after July 2012 can claim, that is just monumentally unfair." Mr Wright added: "We in Hartlepool suffer more than our fair share of mesothelioma and asbestos-related deaths because of our industrial legacy. "My town was a major centre for heavy manufacturing, which was based around the docks, shipyards and steelworks. "Firms such as Richardsons, Westgarth and Co and William Gray and Co are long gone, but are ingrained in the social history of my town, having provided employment for many generations of Hartlepudlians. "However, asbestos was regularly used in those environments for lagging and other purposes, and employees were far too often not provided with proper protective clothing or equipment. "We should think about the families, and the tragedy that we have seen. "When I do, it brings to mind one of the most tragic cases that I have heard of in my constituency. "A woman who was brought up in a community of laggers lost her father, then her husband, then her son, and finally her own life, to mesothelioma. All because of exposure to asbestos in the workplace as a result of negligent employers. "Far too many of my constituents are suffering from this disease, and to make matters even worse, they are not seeing justice done or getting compensation for their suffering." ASBESTOS UPDATE: MDL Court Awards Summary Judgment to 3 Companies ----------------------------------------------------------------- HarrisMartin Publishing reported that the court overseeing the national asbestos coordinated docket has awarded summary judgment to Union Carbide, Lufkin Industries and Georgia-Pacific, after determining that "no reasonable jury" could find that the decedent was exposed to the defendant's products with frequency and regularity. The three defendants had all moved for summary judgment challenging product identification and the claims under South Carolina's door-closing statute. In separate orders released Dec. 2, the U.S. District Court for the Eastern District of Pennsylvania addressed each motion in turn. ASBESTOS UPDATE: 2nd Geologist Confirms Fibro at Proposed Mine -------------------------------------------------------------- Mike Simonson, writing for Wisconsin Public Radio News, reported that a second scientist now confirms that asbestos-like fibers exist in the rock formations of the proposed iron ore mine in the Penokee Hills, in Wisconsin. That confirmation also comes with a warning: that these fibers are dangerous if the rock is disturbed. Iron formation with high concentrations of grunerite from rock at a U.S. Steel bulk sampling site. The grunerite is the white-to-tan mineral within the light band of the rock. Northland College Professor Tom Fitz first found asbestos-like fibers in the Penokees two months ago. Since then, he's discovered more sites of what he calls "a heavy, dangerous concentration." Now, he's gotten confirmation from a geology professor at Lawrence University in Appleton. Fitz says the minerals are a threat to the air and water if blasted by mining company Gogebic Taconite. "That is definitely among the most dangerous of asbestos minerals. We're talking about levels of danger that . . . we really don't want to go there in terms of inhaling this stuff. This is clearly a health hazard." Lawrence University Geologist Marcia Bjornerud examined the grunerite mineral samples sent by Fitz from an abandoned rock sampling site in Ashland County used by U.S. Steel around 1960. "Enough different people have looked at these rocks with enough different analytical methods that at this point it's not a question of whether asbestos-form grunerite is there: It is there. The more important question is how extensive is it across the Penokee Range? That's what we don't know yet." The Department of Natural Resources also found asbestos-form fibers there. In a letter sent to the DNR last month, however, GTAC contends it is unlikely those fibers exist there. Bjornerud says ignoring the science puts public health at risk. "At this point it's really ridiculous for GTAC to say that there is no evidence. It's been shown and it's in their court to produce some science." GTAC wrote in that same letter to the DNR that they won't examine the area where the grunerite was found during its rock sampling. ASBESTOS UPDATE: Probe Conducted After Fibro Scare at Bechtel Site ------------------------------------------------------------------ Mara Pattison-Sowden, writing for Gladstone Observer, reported that Workplace Health and Safety Queensland is currently investigating a case of asbestos found on Bechtel's Australia Pacific LNG site, while unions claim that Bechtel refused to let workers water the area for safety. But a Bechtel spokesperson said there was no need to water down the area as all materials were bonded in cement, therefore no friable materials were released. WHSQ representatives deemed the site safe for works to continue over the weekend, although the specific area remains restricted under state procedures. It is not the first asbestos scare on the Curtis Island LNG projects. Almost 100 electrical workers were exposed to white asbestos contained in prefabricated buildings brought in from overseas, in August last year. But this time the asbestos is said to have been found in mulch from the Rockhampton tip. With the use of asbestos banned on site on any Bechtel or ConocoPhillips projects, investigations are also underway internally. A Bechtel spokesperson said a subcontractor on the APLNG project notified Bechtel that small pieces of "bonded cement sheeting" had been found inside a product used as part of sediment control, on the periphery of the site. One worker, speaking anonymously to avoid repercussions, said the green recycled mulch came from the Rockhampton tip, and it was workers who were putting the mulch into bags used for water run- off who discovered the white fibro cement sheet. "When they found out about it (the workers) were a bit unhappy because they believe they should have been told earlier and they requested the area be hosed down to eliminate any airborne particles," he said. "Apparently Bechtel said no, it was all okay." Bechtel Gladstone general manager Kevin Berg said Bechtel made it clear the use of asbestos on site was not allowed on Bechtel projects, "and we make that very clear in our purchasing and subcontract documents". "We want a safe and healthy work environment for all our people and together, we work relentlessly every day to achieve that," he said. "How the sheeting became part of the recycled material, and where it came from is something we are working to determine." ASBESTOS UPDATE: RFPC Dismissed From Suit, Claims Preempted by LIA ------------------------------------------------------------------ Jon Campisi, writing for The Pennsylvania Record, reported that a federal judge in Philadelphia has dismissed Railroad Friction Products Corp. from an asbestos suit brought by a deceased laborer's widow, ruling that the defendant was correct to assert that the plaintiff's claims are preempted by the Locomotive Inspection Act. Alice Perry had argued in court papers that the LIA does not preempt her claims because the brake shoes that her late husband, George Perry, was exposed to were not found on a locomotive. The woman alleges that her late spouse had developed asbestos- related injuries while installing and removing Railroad Friction Products Corp. manufactured brake shoes that were located on various types of railcars. The sole issue in the case, according to U.S. District Judge Eduardo C. Robreno, was whether the Locomotive Inspection Act preempted Perry's state law claims, especially in light of the U.S. Supreme Court's decision in Kurns v. Railroad Friction Products Corp., which Robreno said affirmed the "breadth of the long-standing field preemption of the LIA." In Perry's case, Robreno wrote, the issue was whether the LIA's broad preemptive scope covered the woman's claims relating to her late husband's exposure to brake shoes located on railcars, and not on locomotives. Robreno determined that the LIA preempts the plaintiff's claims because the railcar brake shoes are a "part or appurtenance" of the locomotive. In Kurns, the jurist wrote, the high court reaffirmed the 85-year- old decision of Napier v. Atlantic Coast Line, which held that state requirements of certain safety equipment on railroads were preempted by the LIA. In the Kurns litigation, the plaintiff brought state law claims of defective design and failure to warn, alleging that his exposure to asbestos-containing products led to him developing mesothelioma, the record shows. The man's wife in that case pursued the litigation following her husband's passing. In Kurns, the plaintiffs had argued that the LIA didn't preempt their state law claims since the Federal Railroad Safety Act limited the scope of field preemption as defined by Napier. The courts, however, determined that while there is a preemption provision in FRSA that says a state may "adopt or continue in force" a rule or regulation related to railroad safety until the secretary of transportation issues a rule or order covering the subject matter of the state requirement, the provision does not limit the field preemption prescribed in Napier. The FRSA, the courts ruled, is a "gap-filler" statute, which "leaves existing statutes intact ? and authorizes the Secretary to fill interstitial areas of railroad safety with supplemental regulation," Robreno's memorandum notes. The FRSA, therefore, had no effect on the scope of preemption as defined by Napier, Robreno noted. Robreno also pointed out that in Kurns, the court rejected each argument by the plaintiffs in support of their contention that their state law claims were outside of the field that Napier found to be preempted by federal law. One example given was the plaintiffs' argument that sought to draw a distinction between the use of locomotives and locomotive equipment on the railroad line versus the repair and maintenance of such equipment off the line. The plaintiffs in that case had argued that LIA preemption extended only to the use of locomotives and equipment while trains were in use, but didn't extend to the repair and maintenance of locomotives in facilities dedicated to such repair and maintenance. "The Court rejected this 'attempt to redefine the pre-empted field,'" Robreno wrote. "The petitioners' state law claims were 'aimed at the equipment of locomotives[,]' and thus were 'directed to the same subject' as the LIA, and therefore 'Napier dictates they fall within the pre-empted field.'" In the Perry case, the plaintiff argued that the asbestos containing brake shoes located on railcars don't fall into the category of a locomotive part or appurtenance, while the defendant asserted that the purported "railcar distinction" that Perry asserted was without merit. "What is a 'part or appurtenance' under the LIA has been judicially defined by several courts," Robreno wrote. "The Supreme Court defined the scope of 'every part of the locomotive and tender and of all appurtenances' as 'whatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order' of the Secretary." Robreno also noted that the Third Circuit U.S. Court of Appeals found that asbestos insulation on locomotive boilers and brakes "undoubtedly" fell into the category of parts and appurtenances. In the present case, Robreno wrote that there is no doubt Perry's claims are preempted by the LIA. "Even though the asbestos-containing products to which Plaintiff alleges Decedent was exposed were on railcars rather than on locomotives, such products are covered by the broad scope of LIA preemption," Robreno wrote. The judge went on to write that it would lead to an "absurd result" if state law claims pertaining to locomotive brake shoes were preempted by federal law, but claims relating to the same exact parts that were connected to the railcars were not. "Uniformity is a primary goal of federal railroad regulation," Robreno wrote. "And, just as it would be difficult to ensure that a self- propelled locomotive could meet each state's laws, it also would be difficult to ensure that a railcar that is not self-propelled but that travels across state lines as frequently as the locomotive pulling it could meet each state's restrictions." ASBESTOS UPDATE: Family Faces Eviction From Fibro-Infested Home --------------------------------------------------------------- Bianca Castro, writing for Harlow Star, reported that a family forced to leave their home because of asbestos are facing eviction after falling into arrears. The Fry family were moved out of their Harlow Council, United Kingdom home and into temporary accomodation in April after asbestos was found in the property. Since October Steven, 37, Cindy, 34, and their three children have been relying on the goodwill of their family after the council removed them from their temporary accommodation. Mr Fry has now fallen into rent arrears and could face eviction from his home after his housing and council tax benefits were stopped. "I wasn't aware but by not living in the property, those benefits were stopped which helped me pay what I needed to," Mr Fry said. "As a result we've fallen into rent arrears and are now being told we face eviction. I only found out because I had to go back to see if we had any post." The property was environmentally cleaned but Mr Fry claimed it was still in a "bad condition". The family were offered another property by Harlow Council which Mr Fry said was "just as bad." He added: "We have lost all our possessions because they could have been contaminated by the asbestos, we have nowhere safe or clean to live and it seems to be a really vicious situation. "We thought we'd be home by now but it looks like we won't have a home for Christmas." Cllr Rod Truan, portfolio holder for housing, said the home was cleaned "in accordance with normal procedures" before specialist companies carried out independent asbestos checks. He said: "Both companies found no trace of asbestos dust and deemed the property safe to live in. "We allowed the family extra time in temporary accommodation and made offers to them of suitable permanent accommodation which have now been successfully re-let to other families. We have done everything we can to meet the family's needs." ASBESTOS UPDATE: New Hope for Ill Workers After UK Gov't U-Turn --------------------------------------------------------------- Western Daily Press reported that people who were exposed to asbestos at work and succumbed to cancer as a result have received a major boost after a United Kingdom Government U-turn. Thousands of people have been left unable to claim much-needed compensation after developing the so-called 'Swindon Disease' of mesothelioma, because the firms that employed them many decades ago have long-since gone bust and no insurer could be traced to pay up. For years campaigners on the issue, including Wiltshire solicitor Brigitte Chandler, have called on the Government to order a funding pool by the insurance industry to make sure those left unable to claim can do so. The insurers fought back, and came up with their own proposals which Ms Chandler said would have made it more difficult for those stricken with the lung conditions to mount cases quickly and cheaply. The Government had previously sided with the insurance industry's proposals, but now ministers have backtracked, and signalled that the fund should be easy to access. Shailesh Vara, the under-secretary of state at the Ministry of Justice, announced the Government was rejecting the proposals from the Association of British Insurers. It will now mean thousands of workers, from building labourers and plumbers to farmworkers and welders, who were exposed to asbestos but whose employers have long since disappeared, can claim. The decision is a victory for campaigners -- including doctors, lawyers, charities and families -- who believed the proposals from the insurance industry would have been unfair, resulting in victims receiving less money and having to wait longer for it, said Ms Chandler, who has successfully won compensation for thousands of victims over the years, mainly from the old GWR or British Rail Works in Swindon, but also from further afield across the West. "Many claimants have a limited life expectancy. In cases where there are no dependents, it is vital we settle these cases as quickly as possible so they have the best possible care for what remains of their life or will at least know their families will face fewer financial worries." Under provisions within the Mesothelioma Bill which had its second reading in the House of Commons this week, the Government is to set up a fund for workers who develop asbestos-related diseases while working for companies that no longer exist and where there is no insurance. "The proposal is that they will receive 75 per cent of compensation which would have been awarded if their employer's insurers had been able to be identified. Until now, claimants in such cases had received nothing. "This is welcome news although there is a case for arguing that claimants should receive the full 100 per cent," said Ms Chandler. "There will be an opportunity to table amendments to the Bill." ASBESTOS UPDATE: Northern Sun Completes Timmins Site Remediation ---------------------------------------------------------------- Northern Sun Mining Corp. (formerly Liberty Mines Inc.) reported on Dec. 10, 2013, the successful completion of the asbestos remediation program at its Timmins properties, more specifically its Redstone Mill site and its McWatters Mine site. In particular, the order to suspend activities at site has been revoked by the Ministry of Labour. In addition, the Company announces its intention to officially close the McWatters nickel mine in Timmins and will begin site rehabilitation measures in 2014. Site rehabilitation at the McWatters mine will be fully funded by reclamation bonds currently on deposit with the Ministry of Natural Resources. About Northern Sun Mining Corp. Northern Sun owns two former producing nickel mines and a large prospective land package in the Shaw Dome area, a prospective nickel belt near Timmins, Ontario. Northern Sun owns the Redstone Mill which has operated as the only nickel concentrator in this Region. The Mill was designed with two processing circuits which is permitted to operate in tandem at 1,500 tonnes per day ("tpd"), but with the flexibility to operate independently processing two different ore types, each at 750 tpd. In 2014, the Company intends to re-open the mill to offer toll milling services to a variety of deposits in the Timmins Camp and general area. Contact Info: Northern Sun Mining Corp. David Rigg President & CEO +1 416-861-5889 david.rigg@northersunmining.ca Northern Sun Mining Corp. Mike McAllister Manager, Investor Relations +1 416-309-2134 info@northernsunmining.ca ASBESTOS UPDATE: Fibro Victim's "Second Wave" Fear -------------------------------------------------- Maria Galinovic, writing for St. George & Sutherland Shire, reported that about 18 months ago Pat Rogan was enjoying a winter holiday with his wife in the warmth of north Queensland, Australia when his usually robust health began to fail. He was taking antibiotics for a minor infection but that did not explain the sudden decline. Mr Rogan, of Alfords Point, cut short his holiday and returned to Sydney to discover his left lung had collapsed. More tests showed he had mesothelioma, the asbestos disease. Mr Rogan's mind immediately went back 50 years to that oil refinery at Silverwater where he worked as an electrician and technician for several years and where he was in daily contact with asbestos products. "That asbestos dust was in the back of my mind when mesothelioma became well-known," he said. "I knew I had been exposed to it but after 50 years I thought I had missed that bullet." In the five decades between exposure and diagnosis Mr Rogan, 77, became an engineer, followed by a political career as the Labor MP for East Hills until his retirement in 1999. After politics he went on to be chairman of ClubsNSW and president of Revesby Workers, but has had to put a stop to all his community work to focus on getting well. Chemotherapy has worked wonders, but the next six months will "make or break" Mr Rogan's health. "There is no cure at this stage -- half the people diagnosed in 2012 are no longer with us," he said. "I try to adopt a positive attitude because the cavalry could be over the next hill and riding closer." He expects that the cavalry carrying a cure will ride out of the Asbestos Diseases Research Institute (ADRI), whose mission is education, prevention, treatment and research of asbestos-related diseases. While waiting, Mr Rogan is keen to promote education and awareness. He is concerned for the "second wave" of mesothelioma sufferers -- the home renovators, who according to an ADRI campaign, are playing "renovation roulette" by inhaling dangerous asbestos fibres while renovating or maintaining homes. Australia has one of the highest rates of asbestos-related illness in the world, and unless homeowners start taking warnings seriously, numbers will continue to rise. Asbestos can be found under floor coverings such as carpets, linoleum and vinyl tiles, behind wall and floor tiles, in cement floors, internal and external walls, ceilings, eaves, garages, roofs, around hot water pipes, fences, extensions to homes, outdoor toilets, backyard and farm sheds, chook sheds and even dog kennels. The message is that it is essential people don't cut it, don't drill it, don't sand it, don't saw it, don't scrape it, don't scrub it, don't dismantle it, don't tip it, don't water blast it and don't dump it. ASBESTOS UPDATE: UK Teacher's Death Prompts Fibro Warning --------------------------------------------------------- Marion Potts, who died at the age of 63, claimed she worked in different schools across the country, including Hardley School in Holbury, and Romsey School, in the United Kingdom, until two years ago. As reported by the Southern Daily Echo, it is still unknown which school exposed Mrs Potts to asbestos. Education authorities have confirmed that both of the Hampshire schools were safe. According to the Southern Daily Echo, it is alleged that the only place Mrs Potts could have come in contact with asbestos was in the school walls. Southampton Coroner's Court said: "It's certainly the first case that I have dealt with but I understand it's turning into a matter of major concern. I hope all the necessary steps are taken in the future to ensure the elimination of this substance." Mr Wiseman added: "Mrs Potts particularly mentioned a variety of occasions such as basic matters like putting up a display with drawing pins where this material would come out of the walls or when they were damaged by pupils. "It looks as if Mrs Potts was very unlucky during her working life as this is the only possible asbestos exposure identified." As reported in the article, it is believed that Mrs Potts was the first teacher in the region to die of mesothelioma. However, the co-founder of Hampshire Asbestos Support and Awareness Group (HASAG), said: "This is not the first teacher in Hampshire to get mesothelioma through exposure at school. We've seen a handful of teachers that have been diagnosed with mesothelioma over the years. It is an ongoing problem, as around 90 per cent of schools still contain asbestos." Commenting on the news, Adriano D'Ambrosio, Executive at Asons Solicitors, said that: "Mesothelioma can lead to a slow, painful death, and it can take up to 50 years for the symptoms to show themselves." "According to the HSE statistics, 183 teachers and lecturers died from mesothelioma between 1980 and 2000. People tend to associate asbestos exposure with the construction industry exclusively, but this story shows that such health risk is not limited to those operating in the building trade." "If Mrs Potts had been exposed to asbestos, as a result of her employment, it is unjust that measures were not taken to protect her welfare and that of pupils, who may also have been exposed to asbestos dust." As reported by the Southern Daily Echo, Mrs Potts' husband Michael has said he is not considering legal action. He stated: "These buildings are 50 years old and asbestos will come out because kids are always running around, banging into things and people stick things into the wall. "She was never made aware of these dangers. That annoys me beyond belief and I intend to make a nuisance of myself as there has been a lot of complacency." 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 compensation and asbestosis compensation. 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.ukor 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. For further information contact: Email: info@asons.co.uk Website: http://www.asons.co.uk ASBESTOS UPDATE: Lead Paint, Fibro Found in Dawson City Bank ------------------------------------------------------------ CBC News reported that renovations to the historic CIBC bank in Dawson City, Canada, are on hold until its lead paint and asbestos can be dealt with. The town recently received a hazardous materials report prepared by Energy North Construction. Jeff Renaud, Dawson City's Chief Administrative Officer, says the report reveals a significant amount of asbestos and lead paint in the building. "We originally investigated the total removal of the hazardous materials," he said. "That was proven to be beyond the financial capabilities of the project at this time, so the project team has moved their focus toward encapsulation, the sealing off of the material." Renaud says once the material is sealed off, the restoration work can get underway. The town bought the building from former owner Mike Palma for $170,000 earlier this year. The branch opened in 1898 during the gold rush. Poet Robert Service worked at the bank in 1908 following a stint at the bank's Whitehorse branch. ASBESTOS UPDATE: Lawyers Hail UK Government Rejection of Reforms ---------------------------------------------------------------- Nottingham Post reported that a city law firm has welcomed an announcement from the British Government that the way claims over asbestos-related diseases are dealt with will not change. The insurance industry wanted alterations to how the claims were dealt with. Many personal injury claims are now processed via an online portal. Cases run under the portal protocols are subject to fixed legal costs giving claimant lawyers' limited scope for proper investigation, sparking concerns that the reforms are limiting access to justice for the injured. At present this system does not apply to mesothelioma claims. However, the Association of British Insurers has made proposals that it should be extended. But the plans have been rejected by Government. Chris Stansfield, a partner at Nelsons Solicitors, specialising in industrial disease cases, said: "In view of these changes it is even more important to ensure that a specialist lawyer with experience of handling mesothelioma claims is instructed. "They will be able to minimise legal costs, avoid incurring unnecessary delays, and can carry out a thorough risk assessment at the outset to avoid unnecessarily taking out insurance." ASBESTOS UPDATE: Mernda Cleanup Begins After Fibro Contamination ---------------------------------------------------------------- Cheryl Balfour, writing for Whittlesea Leader, reported that asbestos-contaminated topsoil will take days to be cleared from a development site in Mernda, Victoria, Australia. The soil was brought to the Stockland development as fill to level out the site near the intersection of Masons and Pearson roads, with the contamination first suspected on November 29. Stockland spokesman Greg Spears said the site was isolated and tests confirmed the presence of asbestos on December 4. Certified contractors were hired to remove and dispose of the hazardous material and conduct a thorough site inspection after the clean-up. Mr Spears said nearby residents were advised of the issue on December 9, the day before the clean-up began. "The material was used as topsoil to cover an area that is approximately 100 metres long and 30 metres wide and 100 millimetres deep," Mr Spears said. "All of the asbestos-containing material will be carefully and safely removed from site over the next four to five days, and will be replaced by new, clean topsoil. "All necessary precautions are being taken to ensure the safe and expedient removal of the material and the site has been fenced off to prevent public access. "The recent rain has acted as a natural suppressant to prevent the release of any airborne particles, a water truck with sprinkler system is on site, and air quality is being constantly monitored. "The health and safety of our residents, contractors and staff is our highest priority and Stockland will take all necessary safety measures to rectify the situation." Alarmed residents phoned the Leader to report they could see men in full-bodied protective suits and masks inspecting the area. Yellow tape and warning signs enclose the contaminated area. WorkSafe and the Environmental Protection Authority are involved. For information about the dangers of asbestos and how it should be handled, go to asbestos.vic.gov.au ASBESTOS UPDATE: Advocacy Group Calling on Pay for N.L. Miners -------------------------------------------------------------- Occupational Safety reported that the Newfoundland and Labrador government must take immediate action to ensure fair compensation for the health problems suffered by former asbestos miners and their families, a new advocacy group says. If necessary, the government should pass emergency legislation to ensure justice for former miners and their families, according to the Baie Verte Asbestos Miners Campaign, which includes former asbestos miners, workplace health and safety researchers and labour activists. "The Baie Verte Miners Registry must not be put on the shelf. It must be used as an instrument to help deliver justice to former miners, their families and communities," the advocacy group states in a letter delivered to Premier Kathy Dunderdale, Dan Crummell, the minister responsible for the Workplace Health, Safety and Compensation Commission and to Leslie Galway, the commission's chief executive officer. The Baie Verte Miners Registry, completed and released earlier in 2013, "confirms that most Baie Verte miners received more exposure to asbestos fibres in a matter of months than the law permits for a lifetime," the advocacy group states in its letter. "Yet only 36 per cent of registrants with medically verified asbestos-related diseases who made claims for compensation were successful," the letter states. Paul Demers, a leading authority on occupational cancers and a member of the Baie Verte Registry's scientific team, advised the Workplace Health, Safety and Compensation Commission in September that such extremely high levels of exposure should lead it to a "presumption of acceptance" for compensation claims. These include claims for all asbestos-related diseases, including gastro- intestinal cancers and chronic obstructive pulmonary diseases. The Baie Verte Asbestos Miners Campaign is now calling on the commission to take steps to implement key findings of the registry project, including: * immediately exempt all former employees of the Baie Verte asbestos operations from restrictions on the recognition of a claim for asbestos-related diseases * publicize this exemption * provide resources for former miners who are not registered to register their medical and employment records and receive the appropriate exposure assessment * accept applications to reconsider previous claims from Baie Verte miners, based on the new exemption * ensure adequate resources for the Office of the Workers' Advisor to assist Baie Verte miners * support a screening program for former workers and their families, to reduce the risk and the consequences of further incidence of asbestos-related diseases. "In the event that these changes to commission policy and practice cannot be made expeditiously, we call upon the Legislature to pass emergency legislation to make it happen," the Baie Verte Asbestos Miners Campaign letter states. ASBESTOS UPDATE: Demolition Work Agreed for Ilfracombe Bus Station ------------------------------------------------------------------ Tony Gussin, writing for North Devon Gazette, reported that contracts to demolish the former bus station in Ilfracombe, North Devon and clear asbestos from the site have been approved by Ilfracombe Town Council. The council bought the site for GBP750,000 last month after borrowing GBP1 million from the Public Works Loan Board for the acquisition, to allow for demolition and site development. Councillors agreed to award a 'phase one' contract to LA Moore at a cost of GBP27,981 plus VAT, to remove all asbestos on site, including in the ticket office building, together with the removal of the roof of the workshop buildings. A 'phase two' contract costing GBP24,850 plus VAT will be awarded in due course to Notts Contractors, for demolition of the ticket office, removal of certain wastes inside the workshop, and the reduction or removal of the workshop walls. It is also planned to remove the pavement sections near the former bus parking bays and certain other preparatory works, ready for final surfacing. The council plans to use the site for car parking for now, with further plans expected following consultation in the town. In his report to the council, Councillor Paul Crabb said it was anticipated to award the phase one contract immediately, with a start date of later this month or early January. He said phase two needed to be awarded 'at a moment's notice' and it was agreed to delegate that decision to the bus station working group, which include the Mayor. ASBESTOS UPDATE: Deadly Dust Found Outside Blackpool School ----------------------------------------------------------- Katie Upton, writing for The Blackpool Gazette, reported that asbestos was dumped outside a Blackpool, United Kingdom primary school. Children from Langdale Free School in North Shore were kept inside as a precautionary measure after bags of the fibres, which can cause serious illness, were discovered. The white asbestos was found in the back ginnel behind the school on Warbreck Drive by a neighbour, who immediately notified school staff. Environmental Health teams from Blackpool Council were called in and children were kept inside the school's two buildings, either side of Knowle Avenue, as a safety precaution. The substance was removed by Blackpool Council teams the day after it was found. School principal Carol Stallard said: "A neighbour came to tell us somebody had dumped something like asbestos. "We rang Environmental Health and followed their advice as regards safety of children. "We've been told it's not a danger, we are assured it's not a problem. But safety always comes first. "It is disappointing that people are so irresponsible that they would do this." The incident meant an infant nativity due to be staged at the school has been postponed. ASBESTOS UPDATE: GTAC Says Toxic Dust Merely Issues in Media ------------------------------------------------------------ Mary Annette Pember, writing for Indian County Today, reported that Gogebic Taconite, the company that is seeking to dig the world's biggest open pit iron ore mine near the Bad River Ojibwe Reservation in Wisconsin continues its battle with the tribe and the state Department of Natural Resources. The DNR recently released public information regarding GTAC's plan to conduct bulk sampling of the area in the Penokee Mountains in Northern Wisconsin. Despite repeated requests from the DNR, the Florida based mining company still has not addressed concerns about how they will contain asbestiform minerals or the presence of sulfuric acid from pyrite infused rock. Indian Country Today Media Network called attention to the Wisconsin Geological Survey documented presence of grunerite in minerals contained in the proposed mining site. The National Academy of Sciences cites grunerite as one of the most toxic forms of asbestos. GTAC leaders continue to deny the presence of grunerite in the area. GTAC mining engineer Tim Myers is quoted in the Progressive Magazine dismissing the presence of asbestos. "Asbestos and acid mine drainage are merely issues in the media," and not elsewhere" he said. In the same article, GTAC CEO Bill Williams maintains that there are no scientific studies confirming the presence of asbestos. In August of 2013, ICTMN quoted geochemist Joseph Skulan about the issue. "They (GTAC) claim there is no asbestos," said Wisconsin resident Joseph Skulan, Ph.D., a geochemist until last May with UW-Geology Museum and now a research professor at the University of Arizona. "Their response is a lie or it indicates scientific incompetence. This should kill the mine." Earlier this year, Wisconsin's Republican-led legislature passed a controversial change in mining laws that permit open pit iron ore mining in the state. GTAC lobbyists were deeply involved in rewriting the law. ICTMN reported on the deregulation bill that has been widely opposed by tribes, environmentalists, scientists and local governments. Despite the relaxed regulations of the new bill, however, GTAC is continuing to struggle with getting approval from the DNR. Once the company provides complete information to the DNR, the agency will have 60 days to approve the plan before further work goes forward. ASBESTOS UPDATE: UK Court to Rule on NHS Treatment Cost Recovery ---------------------------------------------------------------- BBC News reported that a legal dispute over an attempt to force companies to pay the medical costs of staff made ill by asbestos has been referred to the U.K. Supreme Court. A bill passed by AMs would make firms reimburse the NHS for workers needing treatment due to exposure to asbestos. The Welsh government's law officer has asked the Supreme Court to decide whether the assembly has the power to pass the legislation. The insurance industry says the bill goes beyond its law-making powers. It is the first time Counsel General Theodore Huckle QC -- who gives the Welsh government advice on legislative matters -- has made such a referral to the Supreme Court, although similar cases have been brought by the UK government. The court upheld a bill passed by the assembly to reform local government bylaws in November after it was challenged by the Attorney General Dominic Grieve. The attorney general is also challenging an attempt by Welsh ministers to set the wages of farm workers. The Supreme Court is due to hear the case in February. The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was introduced by Labour backbencher Mick Antoniw. ASBESTOS UPDATE: Residents Say They Were Not Told About Removal --------------------------------------------------------------- Clarissa Thorpe, writing for ABC News, reported that residents living near the Campbell section 5 development in Canberra, Australia's north are angry they have been given no warnings about the removal of asbestos from the site. Contractors wearing protection suits have been helping to move piles of dirt from the fenced-off area near the corner of Constitution Avenue and Creswell Street. Local resident Fiona Cotton says the only warning was a few small signs along the fence. "There's a lot of publicity about Mesothelioma and airborne (asbestos) particles," she said. "Now these workers are accredited asbestos removalists but I just think the main issue is that we've got no assurances about what is going on. "We should have been informed so we could drive the other way to avoid the area." The asbestos contamination is thought to have been caused by builders rubble dumped during the 1950s. Another neighbour Mark Anderson says few details have been released by the Land Development Agency (LDA) which is overseeing the project on ACT Government land. "We knew that this material was going to be removed from the site at some stage," he said. "What we didn't expect was that it would start without any advice to the people who live around. "There's been a lot of high wind days for the past few weeks and I can't see much evidence of dust suppression although I did see a water truck there this morning." 'Extensive consultation' However the LDA says extensive public consultation has taken place including letters and seven newsletters sent to residents. LDA Chief Executive David Dawes says site is being managed in accordance with strict environmental controls. "The LDA is working with the Environmental Protection Agency and ACT WorkSafe to ensure that these measures are being rigorously adhered to by the contractor," he said. "A strict stockpile management protocol is being undertaken and an environmental consultant is on site overseeing all stockpile movements of asbestos contaminated material. "The environmental consultant is also ensuring that appropriate dust suppression methods are being undertaken." He says air quality monitoring for asbestos contamination is continuing and to date the monitoring has been clear. The LDA has also announced it will post on its website the weekly program of works to be undertaken on the site. The master plan for the Campbell 5 site includes buildings for residential, retail and commercial uses plus parkland and walking paths. Once completed the site is expected to have about 520 dwelling units. ASBESTOS UPDATE: Warning Issued to Schools After Safety Errors -------------------------------------------------------------- Andrew Robinson, writing for Yorkshire Post, reported that headteachers across Calderdale, in Yorkshire, UK, have been warned about the dangers of uncovering asbestos in school buildings following a council probe which discovered health and safety failings. Recent health and safety inspections of asbestos management systems highlighted deficiencies in procedures relating to council buildings and schools in Calderdale. The council has stated that no employees, children or members of public have been put at any risk. But the authority has introduced measures to ensure managers, governors and headteachers are aware of the dangers and their responsibilities. A premises asbestos management plan was introduced earlier this year in schools and academies. But a council report has warned that procedures have not been followed in some schools. It says: "A number of near miss incidents and two involving asbestos management have occurred in schools during the summer periods which have been investigated by the health and safety manager. "No one was put at risk, however some procedures and council policies were clearly not followed." As a result of the mistakes, schools were recently warned about the dangers of employing contractors who are not trained to deal with asbestos. In a recent memo sent to schools, David Whalley, head of learning in the council's children and young people's service, said: "Given the complexities of health and safety when procuring construction and maintenance work, some schools are still at risk of non- compliance. "This has been highlighted by a number of near misses since the end of term. "Schools are reminded that when procuring and authorising construction work it is essential and also a statutory duty on the school that those contractors delegated to deliver this work are competent and adequately trained on the health and safety aspects of this procurement." The report contains an extensive checklist which schools must follow when managing construction work. Schools are recommended to use asbestos-licensed removal contractors. The advice adds: "It is also eminently sensible to only organise asbestos removal works outside normal school hours." In a separate report, the council warns that thousands of people die every year as result of previous exposure to asbestos fibres. The council's director of communities, Robin Tuddenham, said: "Parents should not be concerned about asbestos exposure in Calderdale schools. "Calderdale Council has a very proactive approach to asbestos management in line with the regulations. We work closely with schools, and have an ongoing training programme for school staff -- who would contact us about any concerns, however minor. "When refurbishments take place in schools, the opportunity is taken to remove any asbestos. There are strict guidelines to follow for contractors removing the material, and our system is audited by the Health and Safety Executive. "We want to prevent accidents from occurring all across the council. A 'near miss' report gives the health and safety team, managers and supervisors the opportunity to investigate any issues and if necessary take prompt action. "A 'near miss' is an event or situation that could have resulted in injury, damage or loss but did not do so due to circumstances, corrective action and/or timely intervention. In all recent 'near miss' reports involving asbestos, no asbestos fibres were released in the workplace, no asbestos regulations were breached, and no further action was required. "The near miss was down to a breakdown of internal procedures and best practice; no one was put at any actual risk. The council endeavours to achieve the very highest standards in this area." ASBESTOS UPDATE: Kent Cigarettes Contributed to Man's Mesothelioma ------------------------------------------------------------------ Laywers and Settlements reported that it is hard to think of anything that could make cigarettes more dangerous, but back in the 1950s, certain cigarettes actually contained asbestos in their filters. Those asbestos-containing cigarettes have led to lawsuits alleging mesothelioma and asbestosis disease, either on the part of people who smoked the cigarettes or those who worked in the factory that supplied the filters. Other lawsuits alleging exposure to asbestos fibers resulting in asbestosis lung disease are still pending. According to Daily Business Review, Richard Delisle was diagnosed with mesothelioma, a fatal condition linked to asbestos exposure, in 2012. He alleges that his smoking of Kent cigarettes, which reportedly used a filter that contained asbestos, contributed to his developing mesothelioma. Also included as defendants in the trial were a paper mill company where Delisle was employed and the manufacturer of the filters used in the Kent cigarettes. A jury found the cigarette maker, Lorillard, and the maker of the filters each 22 percent responsible for Delisle's condition, with another 16 percent fault given to the paper company. The final 40 percent was against other defendants. In all, the jury awarded Delisle $8 million, with Lorillard paying $3.52 million as a result of an indemnity agreement between Lorillard and the maker of the filter manufacturer. ASBESTOS UPDATE: Pa. Man Receives $2.3MM Award in Mass Tort Case ---------------------------------------------------------------- Lawyers and Settlements reported that a $2.3 million award in an asbestos mass tort case has been upheld by a trial court judge in Philadelphia. Common Pleas Court Judge Mark I. Bernstein refused to throw out the multi-million dollar verdict against Crane Co., DAP Inc., Duro Dyne Corp., The Goodyear Tire & Rubber Co. and Goodyear Canada Inc., which had been reached following a jury trial in late February, the Pennsylvania record reportss. Charlotte Vinciguerra filed her asbestos lawsuit on behalf of her late husband, Frank Vinciguerra, who died from malignant mesothelioma on November 3, 2010. Mrs. Vinciguerra filed suit in June 2012, citing numerous companies as defendants, many of whom were dismissed pre-trial. The lawsuit alleged that Mr. Vinciguerra developed mesothelioma as a result of his exposure to asbestos at work as a sheet metal helper and sheet metal mechanic for E.I. DuPont De Nemours & Co. from 1951 to 1985. Frank Vinciguerra was diagnosed with malignant mesothelioma in the summer of 2010, according to court records. Mrs. Vinciguerra alleged that E.I. DuPont failed to exercise reasonable care to protect her husband and others from the hazardous, dangerous and harmful conditions that existed at the property, according to the lawsuit. The defendants claimed, in their attempt to get a new trial, that the trial judge allowed the plaintiff's expert witness to testify that "each and every breath" and "every exposure" to asbestos- containing fiber was causative of Frank Vinciguerra's injuries, in violation of precedence set by the Pennsylvania Supreme Court in the case of Betz v. Pneumo Abex LLC. However, Judge Bernstein wrote that none of the plaintiff's expert witnesses ever offered this opinion during the course of the litigation. During the trial, Dr. Steven Markowitz, an occupational and environmental medicine expert, testified that it was his opinion that Frank Vinciguerra's exposure to asbestos likely caused the man's disease. According to court records, Markowitz explained that there is a dose-response relationship in asbestos disease, and concepts of cumulative exposure to asbestos. Markowitz's testimony was based upon his individual analysis of the specific factors in Vinciguerra's condition, was offered to a reasonable degree of medical certainty, and was "fully subject to cross-examination," Judge Bernstein wrote. The Judge also noted that Markowitz's testimony clearly explained "that it is the cumulative effect which causes the disease." The total verdict for the plaintiff is $2,286,376.44. ASBESTOS UPDATE: Derelict Fibro Shacks to Come Down --------------------------------------------------- Adam Wright, writing for South Coast Register, reported that demolition of three derelict asbestos houses in Murdoch Street, Huskisson, in New South Wales, should be complete before Christmas. After years of community campaigning and numerous court cases brought by Shoalhaven City Council to force the owners to remove the buildings, action is under way. The owners of the building live overseas and had been difficult to contact. Council took the issue to the Land and Environment Court, however the owners and their legal representation did not appear. And they had not complied with court orders to remove the buildings. After all avenues to force the owners to remove the buildings were exhausted, council contracted Shoalhaven Excavations to demolish the structures. Council will pass on the cost of the demolition to the owners. Owner of Shoalhaven Excavations Daniel Jones said the community could be assured the demolition would be completed before Christmas. Chairman of the Huskisson Woollamia Community Voice Garry Kelson had previously said he would not be surprised if Shoalhaven ratepayers ended up footing the bill to demolish the cottages. However he said he would rather see the derelict buildings removed now and let the courts chase the owners for the money later. "We have been lobbying to have these buildings removed on the grounds of safety for three years," he said. "We are heading into prime holiday time. We also have the Hobie World Championships coming up and these houses are right next to Moona Moona Creek which is a very popular picnic area, particularly with families." ASBESTOS UPDATE: Petition Aims to Build Mesothelioma Program ------------------------------------------------------------ Tim Povtak, writing for Asbestos.com, reported that as the youngest person to become chief of Naval Operations, Admiral Elmo Zumwalt played a major role in U.S. military history -- a war hero whose service spanned World War II, Korea and Vietnam. It's only appropriate that the Mesothelioma Center for Excellence at the VA West Los Angeles Medical Center is adopting his name. Zumwalt died from pleural mesothelioma cancer almost 14 years ago, an ending that far too many veterans have suffered, stemming from the once-extensive use of asbestos in the armed forces. His life was dedicated to those who bravely served their country. Now his memory will be, too. If the efforts to become the first federally funded mesothelioma program are successful, the Elmo Zumwalt Treatment & Research Center in Los Angeles is expected to blossom and become a premier destination for veterans battling this disease. "These (veterans) are our heroes. They've given so much of themselves. They deserve the best care we can give them, particularly with this disease," said Clare Cameron, executive director of the nearby Pacific Heart, Lung and Blood Institute. "I think it is so important to take care of them now. They have earned that right." Help With Petition Signatures Cameron has been gathering petition signatures supporting efforts by the West Los Angeles VA and the Zumwalt family. She will present the petition early in 2014 to Robert Petzel, M.D., Under Secretary for Health for the U.S. Department of Veterans Affairs, in Washington, D.C. She encourages everyone to sign the online petition. "A big part of the funding effort is getting the word out," she said. "This could be the place where all the VAs throughout the country can send their mesothelioma patients for the very best care. It's like backing the best horse in the race." Mesothelioma is a rare and aggressive cancer that is diagnosed in an estimated 3,000 Americans each year, including almost 1,000 veterans who likely were exposed during their military service. Most of the VA centers around the country are not equipped to treat it. To get the best possible treatment, it is imperative to see a specialist. The VA system allows its patients to receive treatment wherever is necessary. "The key for patients now is hearing about, and finding the program," Cameron said. "Too many veterans, where they are now, are just being told that mesothelioma is not treatable, and they give up. But that's just not the case. If they get the funding here, and it's up and running, people will know about it." Surgeon Robert Cameron is the Key The West Los Angeles Medical Center, which is part of the VA Greater Los Angeles Healthcare System, is a likely choice for a specialty center because Robert Cameron (no relation to Clare Camron) is its chief of Thoracic Surgery. He is a mesothelioma specialist, pioneer and innovator, dedicating his career to treating this disease. Dr. Cameron also is the driving force behind the Pacific Meso Center and the UCLA Comprehensive Mesothelioma Program, and the leading authority on the lung-sparing pleurectomy/decortication surgery used for mesothelioma patients. His Pacific Meso Center (PMC) also sparked the Southern California Mesothelioma Consortium, a multidisciplinary treatment and research program that will benefit all patients and their families. The PMC has been a leader in cryoablation, an innovative freezing technology for the treatment of mesothelioma, and a unique screening and prevention program. "We owe it to all the veterans to give them the best possible care," Clare Cameron said. "Getting this program up and running would be a good step in that direction." ASBESTOS UPDATE: Calif. Court Rejects BorgWarner's Motions ---------------------------------------------------------- HarrisMartin Publishing reported that a California trial court has denied an asbestos defendant's motions for a new trial and for judgment notwithstanding the verdict, allowing to stand a nearly $39 million asbestos verdict and the 35 percent liability assessment against BorgWarner. In separate orders issued Nov. 25, the California Superior Court for Los Angeles County opined that the punitive damage award of $32.5 million was not excessive, as the plaintiffs presented sufficient evidence that BorgWarner "needlessly infect[ed] thousands of innocents." ASBESTOS UPDATE: Air Pollution Permit Not Needed for Mine --------------------------------------------------------- Steven Verburg, writing for Wisconsin State Journal, reported that a company that wants to dig a massive iron mine in northern Wisconsin probably won't need an air pollution permit for the bulk sampling operation that is to take place before actual mining starts, the state Department of Natural Resources said. The question of whether mining could produce deadly airborne asbestos-like fibers remains unsettled, but data provided by the company on Nov. 25 indicates that general dust problems are unlikely during the bulk sampling phase, said Larry Lynch, agency project manager. The mining company, Gogebic Taconite, helped take the asbestos debate out of the equation for now by scaling back its bulk sampling plan and promising that during sampling it will look for the grunerite rock that sometimes contains hazardous fibers. Before mining begins, deep core samples will be examined by independent labs to determine whether the fibrous minerals are present. "For mining, we would expect a comprehensive and extensive evaluation of the presence and distribution of asbestiform minerals throughout the ore body and waste rock," Lynch said. In bulk sampling, the company will collect tons of rock from the surface and test it to determine what types of equipment it will need for processing when it begins mining. Lynch said the DNR is still asking questions about the company's plan. In October, the state disclosed that a rock containing asbestiform grunerite was found at one proposed bulk sampling site. The company has since removed that site from its plan. Grunerite occurs in iron deposits from Minnesota to Michigan. It isn't always in the form that is problematic, but geological surveys describe fibrous bundles of "needles" that match the description of asbestiform grunerite as early as the 1920s near the Tyler Forks River not far from the east edge of the mine site. ASBESTOS UPDATE: Solon's Suit Makes Second Wave of Fibro Claims --------------------------------------------------------------- Law360 reported that a recent lawsuit by Rep. Carolyn McCarthy, D-N.Y., renewed the controversy surrounding allegations by longtime smokers that their lung cancer was caused by asbestos exposure, but experts say the claims are only likely to grow more popular, considering the prevalence of lung cancer in comparison to mesothelioma. According to the report, after McCarthy sued General Electric Co., Georgia Pacific LLC, Pfizer Inc. and dozens of other companies in October, she was criticized by several media columnists, most notably New York Times business writer Joe Nocera. ASBESTOS UPDATE: Toxic Dust Troubles Binghamton Schools ------------------------------------------------------- Asbestos was found in several schools in Binghamton, New York. And knowing how dangerous it could be to people's health, Florida asbestos testing company, AGC Environmental, shared a way how others could avoid its health risks. In a report from wicz.com, which was posted on December 6, 2013, it was said that three Binghamton schools were particularly discovered to contain asbestos, AGC Environmental shared. Nonetheless, it relayed that the crawl spaces where it was found were already sealed and the classrooms were cleaned. Specifically, the report related that the dangerous and fibrous mineral was found in the crawl spaces of West Middle School and Woodrow Wilson. It added that it was also found in a windowsill of a Theodore Roosevelt classroom, which was scheduled to reopen once test result turns clean. Below is a part of the said report: "The Binghamton School District has responded to the asbestos found in three of the city schools after letters were sent home to parents. Assistant Superintendent Karry Mullins said the asbestos found in West Middle School and Woodrow Wilson were in crawl spaces which have since been sealed. " AGC Environmental said that exposure to asbestos fibers could cause serious illnesses as lung cancer. And so, it highly advised asbestos testing to buildings suspected to have it, especially to those constructed in the 70s. If a structure is to be renovated, before the work, it also suggested that an asbestos inspection must be implemented on the place. That, it said, would help ensure the health of the workers and of the people who would be staying in it. Nonetheless, for the best Florida asbestos testing, AGC Environmental asserted that its service is the one to get. And as it cited, that's because its techniques follow the Florida state guidelines. Moreover, the company added that it is had been known to work with lawyers to assess and offer expert opinions about asbestos exposure and asbestos health effects. To learn more about AGC Environmental's Florida asbestos training and other environmental services, readers could check its website at agcenvironmental.com. ASBESTOS UPDATE: Fibro-Tainted Donated Soil Is Headache for Parish ------------------------------------------------------------------ Adriane Quinlan, writing for The Times-Picayune, reported that a cheaper solution to fill land on the West Bank in Jefferson Parish, Louisiana, resulted in a $576,985, year-long headache when asbestos was found in soil donated by the Army Corps of Engineers and spread by contractors on the outskirts of Churchill Technology & Business Park in Avondale, run by the Jefferson Economic Development Commission. The asbestos was spotted and contained immediately, but the clean- up is ongoing. On Dec. 11, the Jefferson Parish Council awarded a $163,500 contract to remediate the estimated 6,000 tons of contaminated soil on the site. Parish public works director Kazem Alikhani said he expects remediation to be complete sometime in the next few months. The parish is responsible for the disposal of excess material from job corps sites. The parish found what it thought was a nifty solution for placing the excess soil dug up from work at the Justice Canal and Oil Co. Canal project: the fill could be used to raise the elevation on the 90-acre Churchill Technology & Business Park. The free soil, transported by the Corps at no cost to the parish, was the only way JEDCO could afford to complete the elevation project, said JEDCO executive director Jerry Bologna. Bologna said that another, potentially safer source of soil would not have been an option. "We would not have been able to carry out this project if we had to pay for the source of the fill," Bologna said. "Really, it was a creative agreement." But on Mar. 10, 2012, a JEDCO contractor spotted asbestos in the donated soil that was already being spread and halted the dumping immediately, Bologna said. Rachel Calico, Corps program manager for the Justice Canal and Oil Co. Canal project, said an environmental test had not revealed asbestos. "That didn't turn up anything. We don't know how it got there," she said. Calico said that at first, the contractor did not suspect it to be asbestos. "At first it looked like pebbles. He thought nothing of it and then he brought it to the site," Calico said. "No, it was not pebbles. It was asbestos." According to its agreement with the corps, the parish is always responsible for remediating asbestos found at corps projects and does not pay for excavated material to be hauled, public works director Kazem Alikhani said. In consideration of those two factors, the parish will not spend much above and beyond what it might have spent to remediate the asbestos if it had been found initially at the Corps of Engineers project site, Alikhani said. "Once it was discovered at the project site, we are responsible to remove it," said Alikhani. "We had to do it either way." However, statement from the parish said that the problem was "exacerbated ... by mixing the contaminated material with uncontaminated material at the site," because "the total quantity of contaminated material increased." Calico said that when the asbestos was spotted, it was immediately watered and contained, following a regular procedure. "We attacked it, and got it done," Calico said. "We followed protocol in place, to make sure everything was done properly." Calico said that she was not concerned with changing protocol on soil testing at other corps sites, as the finding of the asbestos at the JEDCO site was extremely rare. Remediation will not hold up development of the 90-acre site significantly, Alikhani said. Ongoing work is relying on excess fill from the Harahan "Pump to the River" project. Bologna said the nearly one-year remediation effort also did not significantly hold up JEDCO's plans for site, because there are no definitive plans to build anything on the land that is being filled. "We're constantly fielding prospective candidates," Bologna said, "but we don't have anybody signed." ASBESTOS UPDATE: Special Electric Disregarded End Users, Doc Says ----------------------------------------------------------------- HarrisMartin Publishing reported that asbestos plaintiffs involved in a sophisticated intermediary dispute before California's highest court have filed their appellate brief, arguing that the jury's decision to enforce liability on Special Electric for its sale of asbestos was correct and supported by the evidence presented at trial. In the brief, filed Dec. 9 in the California Supreme Court, asbestos plaintiffs William and Jacqueline Webb urge the high court to reject Special Electric's contentions that it "bears no responsibility" for selling crocidolite asbestos. ASBESTOS UPDATE: Used Drilling Mud Dumped in Calif. Central Valley ------------------------------------------------------------------ Gordon Gibb, writing for Lawyers and Settlements, reported that toxic drilling mud has the potential to harm more people than the mud engineer who comes into direct contact with the substance. And while the drilling rig employee carries the most risk of inhaling floating asbestos fibers when drilling mud is mixed from its original powdered form, it's what happens after the drilling mud is spent that has many residents of the Central Valley area of California concerned. That's because for years, asbestos drilling mud operators have had the capacity and permission to dump spent drilling mud into open pits in the Central Valley as regulators turned a blind eye. To that end, the Central Valley Regional Water Quality Board had, for some time, granted a waiver to oil drilling mud companies, exempting them from reporting or even regulation regarding the dumping of asbestos drilling mud into open pits. That all changed when various environmental and consumer groups advocated to have the waiver struck down. And according to a news release issued by The Center for Biological Diversity (12/5/13), this has now occurred, with the agency voting 4-1 to allow the waiver to expire. The suggestion, as a result, is that oil and drilling companies will now have to adhere to the same regulations and reporting protocols that apply to other types of waste discharge, according to the report. But it does not suggest an end to the dumping. And thus, will a drilling mud problem that has affected many a mud engineer having come into close contact with asbestos drilling mud be seen as transferring to a wider segment of the population through groundwater? Many a drilling mud lawsuit has been filed by a mud engineer grappling with asbestos-related disease such as asbestosis or asbestos mesothelioma decades after actively handling asbestos or inhaling asbestos fibers without knowing the inherent dangers. Asbestos-related disease can lie dormant for decades before manifesting. However, according to the report, drilling mud properties can include heavy metals such as aluminum, mercury, cadmium, arsenic, chromium, copper, lead, nickel and zinc, as well as radioactive materials like radium. What's more, according to the report, exposure to these drilling mud additives has the potential to damage the skin, eyes and other sensory organs, liver, kidney and brain, as well as the respiratory, cardiovascular, gastrointestinal, immune and nervous systems. The concern now is that these chemicals, all part of drilling mud composition, have been slowly leaching into groundwater in the California Central Valley. Advocates seeking to end the regulatory waiver over dumping of used oil drilling mud include the Association of Irritated Residents; the Center for Biological Diversity; the Center on Race, Poverty & the Environment; the Central California Environmental Justice Network; Physicians for Social Responsibility - Los Angeles; Communities for a Better Environment; Greenaction for Health and Environmental Justice; the San Joaquin Valley Latino Environmental Advancement Policy Project; and the Sierra Club. The water authority agreed it needed to end the waiver, together with its previous hands-off approach to the dumping of toxic drilling mud, and to study the potential for environmental damage that can result from the discharge of drilling mud chemicals. ASBESTOS UPDATE: Senate Receives Bankruptcy Trust Legislation ------------------------------------------------------------- HarrisMartin Publishing reported that one day after the U.S. House of Representatives passed the Furthering Asbestos Claim Transparency (FACT) Act of 2013, the Senate received the legislation and referred it to the Committee on the Judiciary. The legislation was read twice in the U.S. Senate before being referred to the Committee, according to online records tracking the legislation. As of this writing, the Senate Committee on the Judiciary has not added the legislation to the agenda for any of its current or future executive business meetings or hearings. ASBESTOS UPDATE: Calif. Court Awards Judgment to Pneumo Abex ------------------------------------------------------------ HarrisMartin Publishing reported that a California federal court has awarded summary judgment to asbestos defendant Pneumo Abex LLC, finding that the plaintiff had failed to present enough competent and admissible evidence to support his claims against the brake defendant. In a Dec. 10 order, The U.S. District Court for the Central District of California wrote that plaintiff Paul Olds had failed to provide evidence that his injury was caused by asbestos- containing products put into the stream of commerce by Pneumo Abex. ASBESTOS UPDATE: Daughter Launches Appeal for Dad's Colleagues -------------------------------------------------------------- Laura Maltby, writing for Redditch Standard, reported that the daughther of a former carpenter who died from an asbestos-related cancer is appealing to his former colleagues for help in her battle for justice. Robert Hartwell -- known as Archie or Bob -- passed away in 2011 following a nine month battle with mesothelioma -- a cancer on the lining of the lungs caused by inhaling asbestos dust. The grandfather-of-three had worked for C.E Dyer, near Alcester, in England, between 1955 and 1961 and for Bryant Homes - now part of the Taylor Wimpey group - in Redditch during the mid to late 1960s. But in November 2010, he began suffering from chest pains and breathlessness and despite undergoing chemotherapy, died the following year at Myton Hospice in Warwick. Devastated by the family's loss, daughter Lynn contacted law firm Irwin Mitchell to see whether asbestos could have played a role in Robert's death. The 72-year-old had been involved in cutting asbestos sheets during his career working on new build houses and lawyers believe former colleagues could hold vital information about the presence of asbestos and working conditions at both companies. Mark Lennon from Irwin Mitchell, said: "Employers have been aware of the dangers of exposing workers to asbestos dust since the 1950s and 60s. "According to research published on the Health and Safety Executive website, one in 17 British carpenters born in the 1940s will die from mesothelioma. "We would like to speak to anyone who worked at either C.E. Dyer or Bryant Homes in the 1950s and 60s as we believe they could help Archie's family in their battle for justice." Lynn added: "We were all shocked when we received the news about Dad's diagnosis. He was always an active man who loved to spend time with his family and to see him deteriorate so rapidly was hard. "We urge anyone who worked with my dad during that time to come forward as it could allow us to finally lay him to rest." Taylor Wimpey declined to comment on the story, at the time of going to press the Standard was unable to contact C.E. Dyer. Anyone who may be able to help can email mark.lennon@irwinmitchell.com or call 0121 214 5407. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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