/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140207.mbx C L A S S A C T I O N R E P O R T E R Friday, February 7, 2014, Vol. 16, No. 27 Headlines AGILYSYS INC: Gets Initial Approval of "Jones" Suit Settlement BANK OF AMERICA: Removed "Pereira" Class Suit to S.D. Florida BANK OF AMERICA: Sued for Charging Separate Attorney's Fees BERNDT & ASSOCIATES: Accused of Systemic Violations of FDCPA CENTERPOINT ENERGY: Seeks Dismissal of CES From Antitrust Suit CHILD DEVELOPMENT: Court Certifies Class in Ex-Workers' Suit CONVERGYS CUSTOMER: Hyundai Seeks Indemnity From "Wheelock" Suit CORINTHIAN COLLEGES: Dismissal of Securities Suit Appealed CORINTHIAN COLLEGES: Continues to Face "Erickson" Suit in Calif. CORINTHIAN COLLEGES: Award in Suit by HVAC Students Confirmed CORINTHIAN COLLEGES: "Montgomery" Suit in Individual Arbitrations CORINTHIAN COLLEGES: Continues to Face Suits by Former Students CORINTHIAN COLLEGES: Still Faces Cal. Suit by Former Employees CORINTHIAN COLLEGES: Faces Suit by Former Instructors in Calif. CYNTHIA DENUNZIO: "Hill" Suit Removed to Middle District of Fla. DEEPWATER HORIZON: 5th Cir. Affirms Property Damage Suit Deal EQC: More People Need to Join Class Action Over Repair Standard GALLUP INC: "Marr" Suit Removed to Southern District of Florida GLAXOSMITHKLINE: N.J. Court Dismisses Antitrust Class Action GULF RESOURCES: Obtains Final Court Okay of "Lewy" Suit Settlement HALLIBURTON CO: U.S. Chamber Comments on Class Action Challenge HK JIN INC: Refused to Pay Overtime Wages, Texas Suit Claims HSBC BANK: "Wilkins" Suit in Illinois Alleges TCPA Violations IMMERSION CORP: Still Faces Consolidated Securities Suit in Cal. IMPERIAL TOBACCO: Tobacco Class Action Under Way in Quebec Court JAK AND ASSOCIATES: Improperly Paid Leads/Specialists, Suit Says LOUISIANA: Amends Children's Choice Waiver for Chisolm Class MF GLOBAL: Settles Class Action Over Accruance for $14.5 Million MICHAELS STORES: Faces Class Action Over Data Breach MONEY MART: Loses Bid to Derail Class Action Over Payday Loans NOVARTIS CONSUMER: Removed "Cortina" Suit to S.D. California POOL COVER: Fails to Pay for Overtime Work, "Graham" Suit Claims QUALITY FINISHING: Fails to Properly Pay Overtime Wage, Suit Says SABRE INC: Judge Tosses Text-Spamming Class Action in California SASKTEL: Alberta Suit Over Cell Service Access Fees Can Proceed SHAPIRO FISHMAN: Suit Alleges Fair Debt Collection Act Violations SHELTER MUTUAL: Removed "Cherry" Class Suit to W.D. Arkansas SHELTER MUTUAL: Removed "Goodner" Class Suit to W.D. Arkansas SOUTH DAKOTA: Tribes' Suit Can Proceed as Class Action SOUTHERN COMPANY: Suit Over Hurricane Katrina Damage Now Closed TARGET CORP: Commercial Bancshares Sues Over Security Breach TARGET CORP: Shapiro Talks About Data Breach Cases TATA CONSULTANCY: Class Seeks to Recover Unpaid Overtime Wages TRAVELERS HOME: "Tommey" Class Suit Removed to W.D. Arkansas UMPQUA HOLDINGS: Uncertain on Effect of Antitrust Suit Settlement UMPQUA HOLDINGS: Claims Remain in Overdraft Fees Litigation UMPQUA HOLDINGS: Suit Over Merger Remains Pending in Wash. Court UNIDINE CORP: Class Seeks to Recover Unpaid Wages and Damages VOLKSWAGEN GROUP: "Speier-Roche" Suit Transferred to S.D. Florida WHITNEY BANK: Cy Pres Distribution of Funds Has Court Approval WORDEN LAW: "Seyerle" Suit Accuses FDCPA Violations * Overtime Class Actions Move Forward in Canada in 2013 Asbestos Litigation ASBESTOS UPDATE: Ramsey Excavating Faces Fine Over Fibro Materials ASBESTOS UPDATE: Lung Cancer Cases Rise in Fibro Litigation ASBESTOS UPDATE: General Cable Has 29,112 PI Cases Pending ASBESTOS UPDATE: Columbus McKinnon Estimates $9.2-Mil Liability ASBESTOS UPDATE: H.B. Fuller Settled PI Suits for $6-Mil. ASBESTOS UPDATE: H.B. Fuller Recognized $3.2MM Fibro-related ARO ASBESTOS UPDATE: Cleanup Set to Begin at Former Citadel Plaza Site ASBESTOS UPDATE: Fibro Delays Rebuilding of S. Coffman St Complex ASBESTOS UPDATE: Suspected Fibro Left Behind After Telstra Cleanup ASBESTOS UPDATE: Large Amount of Fibro Found After Fire in Petone ASBESTOS UPDATE: Upholsterers Exposed to Deadly Dust For 5 Years ASBESTOS UPDATE: Scientists Nearing Magic Bullet v. Fibro Cancer ASBESTOS UPDATE: Summary Judgment Bid in Fibro Case Denied ASBESTOS UPDATE: Fibro Claims Help Hospices ASBESTOS UPDATE: WA High Court Set Feb. 13 Hearing in Boeing Case ASBESTOS UPDATE: Beaumont Fibro Law Firms Donate $45K to Judge ASBESTOS UPDATE: Insurers Unprepared for 'Third Wave' of Exposure ASBESTOS UPDATE: Fibro Discovered in Charleston Airport Renovation ASBESTOS UPDATE: Professor Explains Fibro Cases by Smokers ASBESTOS UPDATE: Sunderland Electrician Launches Action Over Meso ASBESTOS UPDATE: Prior Fibro Problems in Jacksonville, Fla. ASBESTOS UPDATE: Fibro Discovery Closes Rooms at Halesowen School ASBESTOS UPDATE: Fibro Removal at City Hall Nearly Completed ASBESTOS UPDATE: Ohio Jury Awards $27MM Verdict to Cancer Victim ASBESTOS UPDATE: Selah Grocery Closes Due to Fibro Concerns ASBESTOS UPDATE: Deadly Dust Find Sparks OHS Probe ASBESTOS UPDATE: Enhanced Regulations for Fibro Work Introduced ASBESTOS UPDATE: W.Va. Court Remands "Davis" Suit to State Court ASBESTOS UPDATE: Time to Perfect Appeal in "Porta" Suit Enlarged ASBESTOS UPDATE: Time to Perfect Appeal in "D'Andrade" Suit Moved ASBESTOS UPDATE: Discovery Requests in Mich. Criminal Suit Denied ASBESTOS UPDATE: Court Finds Company's Insurance Claim Time-Barred ASBESTOS UPDATE: NY Court Denies SLM's Bid to Dismiss "Engle" Suit ********* AGILYSYS INC: Gets Initial Approval of "Jones" Suit Settlement -------------------------------------------------------------- District Judge Saundra Brown Armstrong granted preliminary approval of a class action settlement in TERRELL JONES, a California resident; MICHAEL JOHNSON, a Florida resident; DERRICK PAIGE, a Texas resident; WILFREDO BETANCOURT, a Nevada Resident; YOLANDA McBRAYER, a former Colorado resident; and MICHAEL PIERSON, a North Carolina resident, individually, and on behalf of all others similarly situated, Plaintiffs, v. AGILYSYS, INC., an Ohio corporation; AGILYSYS NV, LLC, a Delaware limited liability company; and DOES 1 through 100, inclusive, Defendants, CASE NO: C 12-03516 SBA, (N.D. Cal.). The Court appointed six named Plaintiffs as Class Representatives; Bisnar Chase as Class Counsel; and Rust Consulting as the claims administrator. The parties' proposed settlement includes a single, nationwide class holding claims under the Fair Labor Standards Act. The terms of the settlement call for Defendants to pay a Gross Settlement Amount (GSA) of $1,478,819, which sum includes: (a) attorneys' fees in an amount not to exceed 25% of the GSA; (b) litigation costs estimated at $25,000; (c) Class Representative Payments of up to $5,000 for each of the six named Plaintiffs; and (d) claims administration expenses to Rust Consulting, Inc., estimated at $16,500. The Plaintiffs estimate that each member should receive $79.98 (before taxes) for each week worked during the Class Period. An employee who worked during the entire Class Period is thus anticipated to receive a gross amount of approximately $15,287.61. The Final Approval hearing will be held on May 20, 2014, at 1:00 p.m. A copy of the District Court's January 10, 2014 Order is available at http://is.gd/wBLfUgfrom Leagle.com. BANK OF AMERICA: Removed "Pereira" Class Suit to S.D. Florida ------------------------------------------------------------- The putative class action lawsuit styled Pereira v. Bank of America, N.A., et al., Case No. 13-35525-CA-01, was removed from the 11th Judicial Circuit Court to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:14-cv-20112-JEM to the proceeding. The case alleges violations of the Truth-In-Lending Act. The Plaintiff is represented by: Carlos Alberto Mesa, Esq. MESA & PEREIRA PA 11780 SW 89th Street, Suite 201 Miami, FL 33186 Telephone: (305) 569-3005 Facsimile: (305) 403-2998 E-mail: carlos@siudefense.com - and - Jose Alfredo De Armas, Esq. ALVAREZ ARMAS & BORRON 901 Ponce De Leon Boulevard, Suite #304 Coral Gables, FL 33134 Telephone: (305) 461-5100 Facsimile: (305) 461-8642 E-mail: alfred@aablawfirm.com The Defendants are represented by: Brendan I. Herbert, Esq. Christopher Stephen Carver, Esq. AKERMAN SENTERFITT Suntrust International Center One Southeast Third Avenue, 25th Floor Miami, FL 33131 Telephone: (305) 374-5600 Facsimile: (305) 374-5095 E-mail: brendan.herbert@akerman.com christopher.carver@akerman.com - and - Erika Roxanne Shuminer, Esq. AKERMAN SENTERFITT 11071 Redhawk Street Plantation, FL 33324 Telephone: (954) 629-4630 E-mail: erika.shuminer@akerman.com - and - David B. Esau, Esq. CARLTON FIELDS PA CityPlace Tower, Suite 1200 525 Okeechobee Boulevard West Palm Beach, FL 33401 Telephone: (561) 659-7070 Facsimile: (561) 659-7368 E-mail: desau@CFJBLaw.com BANK OF AMERICA: Sued for Charging Separate Attorney's Fees ----------------------------------------------------------- Markeela Daniels v. Bank of America Corporation and Bank of America, N.A., Case No. 5:14-cv-00014-WLS (M.D. Ga., January 10, 2014) is a civil action seeking class certification, monetary damages, and declaratory relief from the Defendants arising from their alleged breach of contract with their customers, where the Bank charges separate attorney's fees in addition to a Legal Process Fee to account holders, who have been subjects of garnishment actions. Bank of America Corporation, a Delaware Corporation headquartered in Charlotte, North Carolina, is a multinational banking and financial services company, operating in more than 150 countries. Bank of America Corporation provides commercial, consumer, and mortgage banking services, as well as trust and financial planning services to its customers via its 5,600 branches and 16,200 ATM locations worldwide. Bank of America N.A. is a wholly owned subsidiary of Bank of America Corporation, and is a nationally chartered banking association also headquartered in Charlotte, North Carolina. The Plaintiff is represented by: C. Andrew Childers, Esq. CHILDERS SCHLUETER & SMITH, LLC 1932 North Druid Hills Road, Suite 100 Atlanta, GA 30319 Telephone: (404) 419-9500 Facsimile: (404) 419-9501 E-mail: achilders@cssfirm.com - and - Joseph H. "Hank" Bates, III, Esq. Randall K. Pulliam, Esq. David Slade, Esq. CARNEY BATES & PULLIAM, PLLC 11311 Arcade Drive, Suite 200 Little Rock, AR 72212 Telephone: (501) 312-8500 Facsimile: (501) 312-8505 E-mail: hbates@cbplaw.com rpulliam@cbplaw.com dslade@cbplaw.com BERNDT & ASSOCIATES: Accused of Systemic Violations of FDCPA ------------------------------------------------------------ Kathryn Campbell, for herself and class members v. Berndt & Associates, P.C., Karol A. Berndt, Robert E. Zielinski and LVNV Funding LLC, Case No. 1:14-cv-00034-GJQ (W.D. Mich., January 12, 2014) is brought against the Debt Collector Defendants seeking damages and equitable relief and to redress their systemic violations of the Fair Debt Collection Practices Act and the Michigan Collection Practices Act. Berndt & Associates, P.C. is a Michigan professional corporation, doing business in Warren, Michigan. Berndt is a law firm whose primary business is debt collection. The Individual Defendants are residents of Michigan and are employees of Berndt & Associates. They are licensed to practice law in Michigan. They helped create, approved, and ratified the practices of Berndt that are described in the complaint. The Defendants regularly collect or attempt to collect debts owed or due or asserted to be owed or due another. LVNV Funding LLC is a Delaware limited liability company. LVNV is engaged in the business of purchasing and collecting defaulted and charged off consumer debts. The Plaintiff is represented by: Phillip C. Rogers, Esq. 40 Pearl Street, N.W., Suite 336 Grand Rapids, MI 49503-3026 Telephone: (616) 776-1176 E-mail: ConsumerLawyer@aol.com - and - Michael O. Nelson, Esq. MICHAEL NELSON LAW 1104 Fuller N.E. Grand Rapids, MI 49503 Telephone: (616) 559-2665 Facsimile: (616) 776-0037 E-mail: mike@mnelsonlaw.com CENTERPOINT ENERGY: Seeks Dismissal of CES From Antitrust Suit -------------------------------------------------------------- CenterPoint Energy Inc. is continuing to pursue to have CenterPoint Energy Services, Inc. (CES) dismissed from a suit in connection with the operation of the natural gas markets in 2000- 2002, according to the parent company's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. A large number of lawsuits were filed against numerous gas market participants in a number of federal and western state courts in connection with the operation of the natural gas markets in 2000- 2002. CenterPoint Energy's former affiliate, Reliant Resources, Inc., was a participant in gas trading in the California and Western markets. These lawsuits, many of which were filed as class actions, allege violations of state and federal antitrust laws. Plaintiffs in these lawsuits are seeking a variety of forms of relief, including, among others, recovery of compensatory damages (in some cases in excess of $1 billion), a trebling of compensatory damages, full consideration damages and attorneys' fees. CenterPoint Energy and/or Reliant Energy were named in approximately 30 of these lawsuits, which were instituted between 2003 and 2009. CenterPoint Energy and its affiliates have since been released or dismissed from all but one such case. CenterPoint Energy Services, Inc. (CES), a subsidiary of CERC Corp., is a defendant in a case now pending in federal court in Nevada alleging a conspiracy to inflate Wisconsin natural gas prices in 2000-2002. In July 2011, the court issued an order dismissing the plaintiffs' claims against other defendants in the case, each of whom had demonstrated FERC jurisdictional sales for resale during the relevant period, based on federal preemption. The plaintiffs appealed this ruling to the United States Court of Appeals for the Ninth Circuit, which reversed the trial court's dismissal of the plaintiffs' claims. In August 2013, the other defendants filed a petition for review with the U.S. Supreme Court. CenterPoint Energy believes that CES is not a proper defendant in this case and will continue to pursue a dismissal. CenterPoint Energy does not expect the ultimate outcome of this matter to have a material impact on its financial condition, results of operations or cash flows. CHILD DEVELOPMENT: Court Certifies Class in Ex-Workers' Suit ------------------------------------------------------------ District Judge Kristine G. Baker granted a motion for conditional collective action certification and a motion for class certification pursuant to Fed. R. Civ. P. 23 in the case captioned SADIE PASCHAL, PENNY CLARK, BECCA COLEMAN DEBRA FRAZIER, EVANGELA JACKSON, HENRIETTA JAMES, AMANDA KENNEY, VALERIE LEWIS, ANSHEKA NELSON, ALICIA PETERSON, ASHLEY REED, JUANITA RELEFORD, ANNA RENFRO, PATRICIA SHAVERS, TRACIE SMITH, ANDREA TONEY, and VIRGINIA ZERMENO, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Plaintiffs, v. CHILD DEVELOPMENT, INC., Defendant, CASE NO. 4:12- CV-0184 KGB, (E.D. Ark.) The Plaintiffs are former employees of defendant Child Development, Inc. Child Development, as a grantee, operated Head Start programs in twelve counties in Arkansas prior to relinquishing its grant due to an inability to meet its financial obligations. The Plaintiffs contend that Child Development did not pay any employees between January 9, 2012, and February 10, 2012; that, between November 15, 2011, and January 9, 2012, Child Development withheld for its own use money from plaintiffs' compensation that Child Development claimed to be for plaintiffs' 403(b) retirement accounts and insurance premiums; and that Child Development deprived plaintiffs and all other employees of Child Development of earned leave time upon discharging plaintiffs and all other similarly situated employees on February 3, 2012. The Plaintiffs sought conditional certification of a collective action "on behalf of all non-exempt employees who worked for defendants at their facilities in Arkansas within three (3) years preceding March 26, 2012," the date plaintiffs filed their first complaint in this case. As to all other claims, plaintiffs sought certification under Fed. R. Civ. P. 23 of a class consisting of "[a]ll persons who were employees of Child Development at any time between November 1, 2011 and February 10, 2012 who were not properly paid and/or had money withheld from their paychecks for employee benefits that was converted to Child Development's use." According to Judge Baker, no party responded to either of the motion and the time for responding has passed. The Court found that plaintiffs have carried their lenient burden of establishing that they are similar situated to other employees who worked at Child Development's facilities. They have submitted some evidence of a common decision, policy, or plan designed to deny employees pay for all hours worked. "The Court is further satisfied that Rule 23(b)(1)(A) is met in so far as each of plaintiffs' other claims is based on the same alleged misconduct by Child Development," she said. Accordingly, the plaintiffs' motion for conditional collective action certification and Court-authorized notice pursuant to the FLSA, 29 U.S.C. Section 216(b), is granted. The Court approved notice for all employees who worked for Child Development between March 26, 2009, and March 26, 2012, and who timely file or have already filed a written consent to be a party to this action pursuant to 29 U.S.C. Section 216(b). Plaintiffs' motion for class certification pursuant to Fed. R. Civ. P. 23 is also granted. As to plaintiffs' non-FLSA claims, the Court certifies under Fed. R. Civ. P. 23(b)(1) a class consisting off all persons who were employees of Child Development at any time between November 1, 2011, and February 10, 2012, who were not properly paid and/or had money withheld from their paychecks for employee benefits that was converted to Child Development's use. Plaintiffs' counsel, Holleman & Associates, P.A. and Bryce Brewer, LLC, are appointed as class counsel for this action. A copy of the District Court's January 10, 2014 Opinion and Order is available at http://is.gd/f9tnmyfrom Leagle.com. CONVERGYS CUSTOMER: Hyundai Seeks Indemnity From "Wheelock" Suit ---------------------------------------------------------------- Convergys Customer Management Group, Inc. continues to face a contractual indemnity claim from Hyundai Motor America ("Hyundai"), a call center client, according to Convergys' Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In November 2011, one of the Company's call center clients, Hyundai Motor America ("Hyundai"), tendered a contractual indemnity claim to Convergys Customer Management Group, Inc., a subsidiary of the Company, relating to a putative class action captioned Brandon Wheelock, individually and on behalf of a class and subclass of similarly situated individuals, v. Hyundai Motor America, Orange County Superior Court, California, Case No. 30- 2011-00522293-CU-BT-CJC. The lawsuit alleges that Hyundai violated California's telephone recording laws by recording telephone calls with customer service representatives without providing a disclosure that the calls might be recorded. Plaintiff is seeking, among other things, an order certifying the suit as a California class action, statutory damages, payment of attorneys' fees and pre- and post-judgment interest. Convergys Customer Management Group, Inc. is not named as a defendant in the lawsuit. On March 5, 2012, the court sustained a demurrer filed by Hyundai to one of the Plaintiff's causes of action, but overruled the demurrer as the Plaintiff's other cause of action. On March 15, 2012, Plaintiff filed an amended complaint. Hyundai answered the amended complaint on April 16, 2012, by generally denying the allegations and asserting certain affirmative defenses. On May 7, 2012, Hyundai filed a motion for summary judgment based on Hyundai's claim that an exemption under the California recording laws was intended to exempt the type of recording done by Hyundai's call centers. On February 5, 2013, the court denied the motion. On July 2, 2013, the California Court of Appeal, Fourth Appellate District, denied Hyundai's appeal of the court's ruling, and on September 18, 2013 the Supreme Court of the State of California denied Hyundai's petition to grant review. Discovery had been stayed while the court's ruling was under appellate review. At a status hearing on October 22, 2013 the court lifted the stay on discovery. Convergys Customer Management Group, Inc. is not named as a defendant in the lawsuit, and there has been no determination as to whether Convergys Customer Management Group, Inc. will be required to indemnify Hyundai. The Company believes Convergys Customer Management Group, Inc. has meritorious defenses to Hyundai's demand for indemnification and also believes there are meritorious defenses to Plaintiff's claims in the lawsuit. The likelihood of losses that may become payable under such claims, the amount of reasonably possible losses associated with such claims, and whether such losses may be material cannot be determined or estimated at this time. For these reasons, the Company has not established a reserve with respect to this matter. CORINTHIAN COLLEGES: Dismissal of Securities Suit Appealed ---------------------------------------------------------- The plaintiffs in a securities suit filed against Corinthian Colleges, Inc. have appealed the dismissal of the suit to the U.S. Ninth Circuit Court of Appeals, according to the college's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On August 31, 2010, a putative class action complaint captioned Jimmy Elias Karam v. Corinthian Colleges, Inc., et al. was filed in the U.S. District Court for the Central District of California. The complaint is purportedly brought on behalf of all persons who acquired shares of the Company's common stock from October 30, 2007 through August 19, 2010, against the Company and Jack Massimino, Peter Waller, Matthew Ouimet and Kenneth Ord, all of whom are current or former officers of the Company. The complaint alleges that, in violation of Section 10(b) of the Securities Exchange Act of 1934 (the "Act") and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission, the defendants made certain material misrepresentations and failed to disclose certain material facts about the condition of the Company's business and prospects during the putative class period, causing the Company's common stock to trade at artificially inflated prices at the time when plaintiffs purchased their stock. The plaintiffs further claim that Messrs. Massimino, Waller, Ouimet and Ord are liable under Section 20(a) of the Act. The plaintiffs seek unspecified amounts in damages, interest, attorneys' fees and costs, as well as other relief. On October 29, 2010, another putative class action complaint captioned Neal J. Totten v. Corinthian Colleges, Inc., et al. was filed by the same law firm that filed the Karam matter in the U.S. District Court for the Central District of California. The Totten complaint is substantively identical to the Karam complaint. Several other plaintiffs intervened in the lawsuit and petitioned the Court to appoint them to be the lead plaintiffs. On March 30, 2011, the Court appointed the Wyoming Retirement System and Stichting Pensioenfonds Metaal en Technieklead as lead plaintiffs, and Robbins Geller Rudman & Dowd LLP as counsel for lead plaintiffs, in the consolidated action. Lead plaintiffs thereafter filed a second amended consolidated complaint, and the Company moved to dismiss the second amended consolidated complaint. On January 30, 2012, the U.S. District Court granted the Company's motion to dismiss, with leave to amend. On February 29, 2012, the plaintiffs filed a third amended complaint in U.S. District Court, and, on March 30, 2012 the Company and the individual defendants filed a motion to dismiss. On August 20, 2012, the U.S. District Court granted the Company's and the individual defendants' motion to dismiss, with prejudice. The plaintiffs have appealed that dismissal to the U.S. Ninth Circuit Court of Appeals, and the Company will continue to defend itself and its current and former officers vigorously. CORINTHIAN COLLEGES: Continues to Face "Erickson" Suit in Calif. ---------------------------------------------------------------- Corinthian Colleges, Inc. continues to face a suit originally filed in the U.S. District Court for the Southern District of New York but transferred to the Central District of California, according to the college's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On June 20, 2013, a putative class action complaint captioned Frank Erickson, Individually and On Behalf of All Others Similarly Situated v. Corinthian Colleges, Inc., et al. was filed in the U.S. District Court for the Southern District of New York. The complaint is purportedly brought on behalf of all persons who acquired shares of the Company's common stock from August 23, 2011 through June 10, 2013, against the Company and Jack Massimino, Robert Owen and Kenneth Ord, all of whom are officers of the Company. The complaint alleges that, in violation of Section 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Act"), and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission, the defendants made certain material misrepresentations and failed to disclose certain material facts about the condition of the Company's business and prospects during the putative class period, causing the Company's common stock to trade at artificially inflated prices at the time when plaintiff purchased his stock. The plaintiff seeks unspecified amounts in damages, interest, attorneys' fees and costs, as well as other relief on behalf of a class of similarly situated persons. In October 2013, the court granted the Company's and the individual defendants' motion to transfer the case to the Central District of California. The Company believes the complaint is without merit and intends to vigorously defend itself and its officers and directors against these allegations. CORINTHIAN COLLEGES: Award in Suit by HVAC Students Confirmed ------------------------------------------------------------- The California Court of Appeal vacated a trial court's order in a suit filed by current or former HVAC students against Corinthian Colleges, Inc. and remanded the matter to the trial court with orders to enter judgment confirming the arbitration award, according to the college's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On May 28, 2008, a putative class action demand in arbitration captioned Rivera v. Sequoia Education, Inc. and Corinthian Colleges, Inc. was filed with the American Arbitration Association. The plaintiffs are nine current or former HVAC students from the Company's WyoTech Fremont campus. The arbitration demand alleges violations of California's Business and Professions Code Sections 17200 and 17500, fraud and intentional deceit, negligent misrepresentation, breach of contract and unjust enrichment/restitution, all related to alleged deficiencies and misrepresentations regarding the HVAC program at these campuses. The plaintiffs seek to certify a class composed of all HVAC students in the Company's WyoTech Fremont and WyoTech Oakland campuses over the prior four years, and seek recovery of compensatory and punitive damages, interest, restitution and attorneys' fees and costs. The Company never operated any HVAC programs at the Company's WyoTech Oakland campus during its ownership of that campus. The arbitrator ruled that the arbitration provision in the former students' enrollment agreement is not susceptible to class-wide resolution. On November 22, 2011, a California state court judge refused to confirm the arbitrator's clause construction decision and remanded the matter to the arbitrator for further consideration. The Company appealed the state court order, and, in October 2013, the California Court of Appeal vacated the trial court's order and remanded the matter to the trial court with orders to enter judgment confirming the arbitration award. The Company believes the matter is without merit and intends to vigorously defend itself against these allegations. CORINTHIAN COLLEGES: "Montgomery" Suit in Individual Arbitrations ----------------------------------------------------------------- A lawsuit alleging deficiencies and misrepresentations regarding the medical assisting program at the Merrionette Park campus of Corinthian Colleges, Inc. is now scheduled for individual arbitrations, according to the college's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On November 23, 2010, a putative class action complaint captioned Alisha Montgomery, et al., on behalf of themselves and all others similarly situated, v. Corinthian Colleges, Inc. and Corinthian Schools, Inc. d/b/a Everest College and Olympia College, was filed in the Circuit Court of Cook County, Illinois. Corinthian Schools, Inc. is a wholly-owned subsidiary of the Company. Plaintiffs were thirty-three individuals who purport to be current and/or former students of the Company's Medical Assistant Program at the Everest College campus in Merrionette Park, Illinois. The complaint alleged breach of contract, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act and unjust enrichment, all related to alleged deficiencies and misrepresentations regarding the Company's medical assisting program at the Merrionette Park campus. The plaintiffs sought to certify a class composed of all persons who enrolled in the Company's Medical Assisting program at the Everest College Merrionette Park campus during the four years preceding the filing of the lawsuit, and sought actual and compensatory damages on behalf of such persons, costs and attorneys' fees, punitive damages, disgorgement and restitution of wrongful profits, revenue and benefits to the extent deemed appropriate by the court, and such other relief as the court deemed proper. The Company removed the case to federal court and moved to compel individual arbitrations, which the court granted. Thirty-two plaintiffs filed individual demands in arbitration, and individual arbitration hearings commenced during the quarter ended June 30, 2012. The Company and the plaintiffs agreed to hold the hearings in abeyance to engage in settlement discussions, which were unsuccessful. These matters are now again being scheduled for individual arbitrations, although the Company and plaintiffs are still discussing potential settlement agreements in amounts that would not be material to the Company's results of operations and financial condition. The Company continues to believe these matters are without merit and, if reasonable settlements cannot be reached, will continue to defend itself vigorously. CORINTHIAN COLLEGES: Continues to Face Suits by Former Students --------------------------------------------------------------- Corinthian Colleges, Inc. provides updates on two remaining purported class actions filed by former students, according to the college's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. During fiscal 2011, the Company experienced an unprecedented increase in putative class action lawsuits by former students. In many of these cases, the plaintiffs and their counsel sought to represent a class of "similarly situated" people as defined in the complaint. The Company believes these lawsuits are largely the result of negative publicity and aggressive lawyer recruitment of potential clients surrounding the Department of Education's ("ED's") rulemaking efforts, the Senate HELP Committee hearings, the Government Accountability Office ("GAO") report, and other related matters that occurred during that time period. Most of the cases filed during that time have since been dismissed. In virtually all of the following remaining cases, the plaintiffs cite testimony from the HELP Committee hearings, the GAO report, public statements by elected officials and/or other negative media coverage in their complaints, although the locations of the students, the specific allegations, and the nature of their claims differ. The Company believes all of the following complaints are contractually required to be resolved in individual arbitrations between the named students and the Company, and the Company has moved to compel these cases to arbitration. The following is a brief summary of such matters: (A) Named Plaintiff(s) and Campus: Kevin Ferguson; Everest Institute in Miami, Florida; and Sandra Muniz; Heald College campuses in Rancho Cordova and Roseville, California (initially filed as separate actions, but now consolidated) Dated Filed: January 24, 2011 and February 17, 2011 Venue: U.S. District Court, Central District of California Nature and Basis of Alleged Claims; Relief Sought: Alleged misrepresentations by specific admissions representative at a specific campus regarding accreditation, transferability of credits, cost of attendance, eligibility for certifications, and career placement opportunities; Causes of action alleging breach of implied contract, breach of implied covenant of good faith and fair dealing, violation of California's Business and Professions Code, violation of California's Consumer Legal Description of Putative Class: All persons who attended any Everest institution in the United States or Canada from January 2005 to the present; all persons who attended any Heald institution from January 2009 to the present Status Update: District court compelled all non-injunctive claims to arbitration and permitted all injunctive claims to remain before the court; the Company appealed the order as it relates to the injunctive claims, and the court of appeal stayed the district court action pending the appeal. In October 2013, the U.S. Ninth Circuit Court of Appeal reversed and remanded the case to the U.S. District Court with instructions to direct all of the plaintiffs' claims to arbitration and stay the action pending arbitration. (B) Named Plaintiff(s) and Campus: Noravel Arevalo and fourteen former students at the Company's Everest College location in Alhambra, California Date Filed: March 11, 2011 Venue: American Arbitration Association Nature and Basis of Alleged Claims; Relief Sought: Alleged misrepresentations by specific admissions representatives at a specific campus and unlawful business practices in the licensed vocational nursing program in Alhambra, CA; Causes of action alleging violation of the California Consumer Legal Remedies Act, fraud, breach of contract, violation of California's former Private Postsecondary and Vocational Education Reform Act, violation of the Racketeer Influenced and Corrupt Organizations Act, Description of Putative Class: All persons who enrolled in the Everest College, Alhambra, CA Vocational Nursing classes of 2007- 08 and 2008-09; putative class action has since been dismissed and refiled on behalf of fifteen individuals Status Update: Individual arbitration demands have been filed, and arbitration hearings began during the quarter ended March 31, 2013. The Company obtained complete defense verdicts in the first two hearings and resolved seven others for a non-material amount. The other hearings are proceeding as currently scheduled. The Company intends to defend itself and its subsidiaries vigorously in all of these matters. CORINTHIAN COLLEGES: Still Faces Cal. Suit by Former Employees -------------------------------------------------------------- Corinthian Schools, Inc. continues to face a remaining Orange County action that seeks to seek certification of a class of current and former admissions representatives over the last four years at the Company's California campuses, according to the college's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On September 13, 2011, an action captioned Michael Harrington, individually and on behalf of all persons similarly situated, v. Corinthian Schools, Inc., et al., was filed in California's Alameda Superior Court. A virtually identical action with the same caption was filed by different plaintiff's counsel on September 15, 2011, in California's Orange County Superior Court. The plaintiff is a former admissions representative at the Company's Fremont and Hayward campuses and the two actions allege violations of California's Business and Professions Code Section 17200 and the California Labor Code for alleged failure to pay for all hours worked, purported denial of meal periods, and alleged failure to pay wages upon termination. The Alameda complaint has since been voluntarily dismissed. While the scope of the putative class is not clear, the remaining Orange County action appears to seek certification of a class of current and former admissions representatives over the last four years at the Company's California campuses. The Company believes the allegations are without merit and intends to vigorously defend itself. CORINTHIAN COLLEGES: Faces Suit by Former Instructors in Calif. --------------------------------------------------------------- Corinthian Schools, Inc. faces a suit that seek certification of a class of current and former instructors who have worked at the Company's California campuses, according to the college's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In October 2013, an action captioned David Ratto, on behalf of himself and all others similarly situated, v. Corinthian Schools, Inc., et al., was filed in California's Alameda Superior Court. The plaintiff is a former instructor at the Company's Fremont campus. The action alleges violations of California's Business and Professions Code Section, Labor Code and Industrial Welfare Commission Wage Orders for alleged failure to pay straight time, minimum and/or overtime wages for all hours worked, failure to provide all meal periods, failure to authorize and permit all paid rest periods, failure to timely furnish accurate itemized wage statements, violation of Labor Code Section 203, incurrence of penalties pursuant to Labor Code Section Section 2698, et seq., and unfair business practices. While the scope of the putative class is not clear, the matter appears to seek certification of a class of current and former instructors who have worked at the Company's California campuses over the relevant statute of limitations period. The Company believes the allegations are without merit and intends to vigorously defend itself. CYNTHIA DENUNZIO: "Hill" Suit Removed to Middle District of Fla. ---------------------------------------------------------------- The purported class action lawsuit titled Hill, et al. v. Denunzio, et al., Case No. 13-011393-CI, was removed from the 6th Judicial Circuit, in and for Pinellas County, Florida, to the U.S. District Court for the Middle District of Florida (Tampa). The District Court Clerk assigned Case No. 8:14-cv-00063-VMC-AEP to the proceeding. The lawsuit asserts employment discrimination claims. The Plaintiffs are Cedric Hill and Mary Hill. The Defendants are Cynthia L. Denunzio and Peter V. Denunzio. The Plaintiffs are represented by: Gregory A. Owens, Esq. Wolfgang M. Florin, Esq. FLORIN ROEBIG, PA 777 Alderman Rd. Palm Harbor, FL 34683 Telephone: (727) 786-5000 Facsimile: (727) 772-9833 E-mail: greg@florinroebig.com fgo@florinroebig.com The Defendants are represented by: Gregory Alan Hearing, Esq. Jeffery L. Patenaude, Esq. THOMPSON, SIZEMORE, GONZALEZ & HEARING, PA 201 N Franklin St., Suite 1600 PO Box 639 Tampa, FL 33601-0639 Telephone: (813) 273-0050 Facsimile: (813) 273-0072 E-mail: ghearing@tsghlaw.com jpatenaude@tsghlaw.com DEEPWATER HORIZON: 5th Cir. Affirms Property Damage Suit Deal ------------------------------------------------------------- The United States Court of Appeals for the Fifth Circuit affirmed a district court ruling in IN RE: DEEPWATER HORIZON -- APPEALS OF THE ECONOMIC AND PROPERTY DAMAGE CLASS ACTION SETTLEMENT, NO. 13- 30095. The appeal is an interlocutory appeal from the district court's order certifying a class action and approving a settlement under Rule 23 of the Federal Rules of Civil Procedure. The ongoing litigation before the district court encompasses claims against British Petroleum Exploration & Production, Inc. (BP) and numerous other entities. All these claims are related to the 2010 explosion aboard the Deepwater Horizon, an offshore drilling rig, and the consequent discharge of oil into the Gulf of Mexico. Several of the original appellants in this case have moved to dismiss their appeals voluntarily, and the Circuit Court has granted those motions. Accordingly, the arguments unique to those appellants were not considered. The three groups of appellants that were remaining before the Circuit Court -- the "Allpar Objectors," the "Cobb Objectors," and the "BCA Objectors" -- all filed objections with the district court opposing class certification and settlement approval based on various provisions of Rule 23. The Objectors' arguments were each addressed and rejected by the district court in its order of December 21, 2012. The Objectors appealed the district court's order and asked the Circuit Court to remand with instructions to decertify the class and withdraw approval from the Settlement Agreement. BP also asked the Circuit Court to vacate the district court's order, although BP is not formally an appellant and, in fact, BP originally supported both class certification and settlement approval before the district court. In addition to its own set of new arguments under Rule 23, BP also raised additional arguments regarding the Article III of the U.S. Constitution standing of certain class members to make claims under the Settlement Agreement. Unlike the Objectors, however, BP argued that the Settlement Agreement can be salvaged if "properly construed and implemented." In BP's view, all of the problems that invalidate the class settlement under Article III and Rule 23 result from two Policy Announcements issued by the Claims Administrator, Patrick Juneau, who was appointed under the Settlement Agreement by the district court. "[W]e cannot agree with the arguments raised by the Objectors or BP," ruled Circuit Judge W. Eugene Davis. "The district court was correct to conclude that the applicable requirements of Rule 23 are satisfied in this case. Additionally, whether or not BP's arguments regarding Exhibits 4B and 4C are correct as a matter of contract interpretation, neither class certification nor settlement approval are contrary to Article III in this case," he added. A copy of the Circuit Court's January 10, 2014 Opinion is available at http://is.gd/RerW3jfrom Leagle.com. EQC: More People Need to Join Class Action Over Repair Standard --------------------------------------------------------------- Newstalk ZB reports that it's unlikely a class action against EQC will attract the 120 people needed to fund the project and organizers are reviewing their options. Around 80 people have signed up to Christchurch Law firm Anthony Harper's group lawsuit that aims to change the standard of repair offered by EQC. Solicitor Simon Munro says the group is deciding between waiting for others to join up or paying more themselves. "Extend the time that we're giving people to join up another month or so or rather than the maximum contributions of $2000 we can possibly increase that to two and a half or three." Mr. Munro was expected to have a decision by Feb. 3. GALLUP INC: "Marr" Suit Removed to Southern District of Florida --------------------------------------------------------------- The class action lawsuit captioned Marr v. Gallup, Inc., Case No. 3:13-cv-02465, was transferred from the U.S. District Court for the Southern District Court of California to the U.S. District Court Southern District of Florida (Miami). The Florida District Court Clerk assigned Case No. 1:14-cv-20116-RSR to the proceeding. The Plaintiff is represented by: Douglas J. Campion, Esq. LAW OFFICES OF DOUGLAS J. CAMPION 409 Camino Del Rio South, Suite 303 San Diego, CA 92108-3507 Telephone: (619) 299-2091 E-mail: doug@djcampion.com - and - E. Elliot Adler, Esq. ADLER LAW GROUP, APLC 402 W. Broadway, Suite 860 San Diego, CA 92101 Telephone: (619) 531-8700 Facsimile: (619) 342-9600 E-mail: eadler@theadlerfirm.com The Defendant is represented by: Felicia Yu, Esq. REED SMITH LLP 55 South Grand Avenue, Suite 2900 Los Angeles, CA 90071 Telephone: (213) 457-8000 E-mail: fyu@reedsmith.com GLAXOSMITHKLINE: N.J. Court Dismisses Antitrust Class Action ------------------------------------------------------------ David Tait and Ryann Atkins at McCarthy Tetrault LLP report that on January 24, 2014, the District Court released its reconsideration opinion again dismissing a previously-dismissed proposed antitrust class action against GSK and Teva under the "rule of reason" test set down in the 2012 U.S. Supreme Court's Actavis decision. In doing so, the Court made some important statements about Actavis: It does not allow scrutiny of all patent settlements with anticompetitive potential. It requires scrutiny only of patent settlements that contain "reverse payments". A "reverse payment" must include the exchange of money. GSK and Teva had settled patent litigation over LAMICTAL (lamotrigine) tablets, which are used to treat epilepsy and bipolar disorder. The patent in issue expired in 2008. According to the patent settlement, Teva was permitted to sell generic tablets prior to patent expiry. GSK also agreed not to launch its own authorized generic version of LAMICTAL during a certain period of exclusivity. The plaintiff alleged the settlement violates antitrust law. There was, however, no transfer of money under the settlement. The Court previously dismissed the proposed class action under the plaintiff-friendly K-Dur analysis because there was no transfer of money. In reconsidering, the Court found that Actavis did not change the outcome. The Court thereby gave a narrow interpretation of "reverse payment" as requiring the exchange of money, despite two other decisions supposedly reading Actavis as applying to non-monetary patent settlements (In re Lipitor and In re Nexium). GULF RESOURCES: Obtains Final Court Okay of "Lewy" Suit Settlement ------------------------------------------------------------------ District Judge Otis D. Wright, II, granted final approval of a settlement resolving the case captioned ZACHARY LEWY, SAMPSON DARUVALLA, WILLIAM SPEIGELBERG, and IOANNIS ZOUMAS, individually and on behalf of all others similarly situated, Plaintiffs, v. GULF RESOURCES, INC., XIAOBIN LIU, MIN LI, and MING YANG, Defendants, CASE NO. 11-CV-3722 ODW (MRWX), (C.D. Cal.). The Court certifies this action as a class action for settlement purposes only, and certifies as the Settlement Class all persons or entities who purchased the publicly-traded common stock of Gulf from March 16, 2009 through April 26, 2011, and who were damaged thereby. Excluded from the Settlement Class are: a. Defendants, and the members of their immediate families and Defendants' heirs, successors and assigns, any entity in which any Defendant has or had a controlling interest, and Gulf's predecessors; b. Present officers and/or directors of Gulf; c. Those persons who excluded themselves by filing timely and valid requests for exclusion in accordance with the Preliminary Approval Order (to date, no such requests have been filed). The Settlement is approved as fair, reasonable and adequate, and in the best interests of the Settlement Class. Lead Plaintiffs and Gulf are directed to consummate the Settlement in accordance with the terms and provisions of the parties' stipulation. The Litigation and the Amended Complaint are dismissed with prejudice and without costs. A copy of the District Court's January 8, 2014 Order and Final Judgment is available at http://is.gd/wgyYHkfrom Leagle.com. HALLIBURTON CO: U.S. Chamber Comments on Class Action Challenge --------------------------------------------------------------- The following is a statement by Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform (ILR), on the Halliburton v. Erica P. John Fund U.S. Supreme Court case in response to the Jan. 29 filing of the respondent's brief: "The value of securities class action lawsuits is often questionable since the costs they impose on investors are much greater than any benefit they provide. Instead, that burden falls on the companies' current shareholders and insurance paid for by those shareholders. Studies also show that such lawsuits do not deter fraud. "The securities class action system is broken and the beneficiaries are lawyers -- those who file the lawsuits and those who are paid to defend them." ILR seeks to promote civil justice reform through legislative, political, judicial, and educational activities at the national, state, and local levels. The U.S. Chamber of Commerce is the world's largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations. HK JIN INC: Refused to Pay Overtime Wages, Texas Suit Claims ------------------------------------------------------------ Lila Bakhshi-Dezfouli and all others similarly situated under 29 U.S.C. 216(B) v. H.K. Jin, Inc. d/b/a Dry Clean Super Center on Main d/b/a Ritz Cleaners and Gina Ky Pang, Case No. 3:14-cv-00076- B (N.D. Tex., January 10, 2014) alleges that the Defendants willfully and intentionally refused to pay the Plaintiff's overtime wages as required by the Fair Labor Standards Act. H.K. Jin, Inc., doing business as Dry Clean Super Center on Main, doing business as Ritz Cleaners, is a company that regularly transacts business within Dallas County, Texas. Gina Ky Pang is a corporate officer, owner or manager of the Company. The Plaintiff is represented by: J.H. Zidell, Esq. Robert Lee Manteuffel, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Suite 112 Dallas, TX 75240 Telephone: (972) 233-2264 Facsimile: (972) 386-7610 E-mail: zabogado@aol.com rlmanteuffel@sbcglobal.net HSBC BANK: "Wilkins" Suit in Illinois Alleges TCPA Violations ------------------------------------------------------------- Michael Wilkins, on behalf of himself and others similarly situated v. HSBC Bank Nevada, N.A. and HSBC Card Services, Inc., Case No. 1:14-cv-00190 (N.D. Ill., January 10, 2014) is brought for damages, and other legal and equitable remedies, resulting from the illegal actions of the Defendants in negligently, knowingly and willfully contacting the Plaintiff and Class members on their cellular telephones without their prior express consent within the meaning of the Telephone Consumer Protection Act. HSBC Bank Nevada, N.A., is a national bank and a wholly owned subsidiary of HSBC Finance Corporation. HSBC Bank Nevada, N.A., is a Nevada company with principal places of business in Las Vegas, Nevada and New York City, New York. HSBC Card Services, Inc. is the U.S. consumer credit card segment of HSBC Bank Nevada, N.A. HSBC Card Services, Inc., is a Maryland company with a principal place of business in Illinois. HSBC markets itself as one of the industry's most valuable brands, and one of the world's largest banking and financial services organizations. The Plaintiff is represented by: Alexander H. Burke, Esq. BURKE LAW OFFICES, LLC 155 North Michigan Avenue, Suite 9020 Chicago, IL 60601 Telephone: (312) 729-5288 Facsimile: (312) 729-5289 E-mail: aburke@burkelawllc.com - and - Beth E. Terrell, Esq. TERRELL MARSHALL DAUDT & WILLIE PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 350-3528 E-mail: bterrell@tmdwlaw.com IMMERSION CORP: Still Faces Consolidated Securities Suit in Cal. ---------------------------------------------------------------- In Re Immersion Corporation Securities Litigation continues in the United States District Court for the Northern District of California, according to the company's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In September and October 2009, various putative shareholder class action and derivative complaints were filed in federal and state court against the Company and certain current and former Immersion directors and officers. On September 2, 2009, a securities class action complaint was filed in the United States District Court for the Northern District of California against the Company and certain of its current and former directors and officers. Over the following five weeks, four additional class action complaints were filed. (One of these four actions was later voluntarily dismissed.) The securities class action complaints name the Company and certain current and former Immersion directors and officers as defendants and allege violations of federal securities laws based on the Company's issuance of allegedly misleading financial statements. The various complaints assert claims covering the period from May 2007 through July 2009 and seek compensatory damages allegedly sustained by the purported class members. On December 21, 2009, these class actions were consolidated by the court as In Re Immersion Corporation Securities Litigation. On the same day, the court appointed a lead plaintiff and lead plaintiff's counsel. Following the Company's restatement of its financial statements, lead plaintiff filed a consolidated complaint on April 9, 2010. Defendants moved to dismiss the action on June 15, 2010 and that motion was granted with leave to amend on March 11, 2011. Lead plaintiff filed an amended complaint on April 29, 2011. Defendants moved to dismiss the amended complaint on July 1, 2011. On December 16, 2011, the motion to dismiss was granted with prejudice and on December 19, 2011, judgment was entered in favor of defendants. On January 13, 2012, the plaintiffs filed a notice of appeal to the Ninth Circuit Court of Appeals. In May 2012, plaintiff filed his opening appeals brief. On July 13, 2012, the Company filed its response brief. On September 4, 2012, plaintiff filed his reply. IMPERIAL TOBACCO: Tobacco Class Action Under Way in Quebec Court ---------------------------------------------------------------- Sally Satel, writing for The Globe and Mail, reports that the biggest class action suit in Canadian legal history is under way at the Quebec Superior Court in Montreal. At stake are billions in damages and penalties sought from three tobacco companies -- Imperial Tobacco Canada Ltd., Rothmans, Benson & Hedges; and JTI- Macdonald. Justice Brian Riordan is hearing cases representing almost two million victims of lung, larynx and throat cancer, and emphysema caused by smoking cigarettes. In an unusual act, the Non-Smokers' Rights Association has filed a complaint with the College des medecins du Quebec against a key expert who recently testified in court. The complaint accuses Dominique Bourget, a forensic psychiatrist at the Royal Ottawa Mental Health Centre, of breaching the college's ethics code by "minimizing the gravity of, if not denying the existence of, tobacco dependence." What did Dr. Bourget say to provoke such a charge? According to Fran‡ois Damphousse, the Quebec director of the Non-Smokers' Rights Association, Dr. Bourget just "brushe[d] aside all the science on nicotine addiction and the neurophysiological effects of nicotine on the brain." In the same interview with the Montreal Gazette last week, he said that Dr. Bourget played down tobacco's addictive potential: She "reject[ed] current scientific knowledge about addiction and she is not allowed to do that as a member of the College." JAK AND ASSOCIATES: Improperly Paid Leads/Specialists, Suit Says ---------------------------------------------------------------- David Viramontes, Ricardo Viramontes, and Christian Antillon, on behalf of themselves, and all other plaintiffs similarly situated, known and unknown, v. JAK and Associates, LLC, d/b/a NTP Wireless, BGG and Associates, LLC, and Jonathan D. Haley, Individually, Case No. 1:14-cv-00192 (N.D. Ill., January 12, 2014) is brought under the Fair Labor Standards Act, the Portal-to-Portal Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. The Plaintiffs are the Defendants' present employees, who have performed upgrade and installation labor in positions deemed by the Defendants as "solution leads" and "solution specialists." The Plaintiffs contend that they were improperly paid for a 40-hour workweek on a salary basis from the beginning of their employment until December 16, 2013, regardless of the number of hours actually worked in a given week. JAK and Associates, LLC, doing business as NTP Wireless, provides wireless networking services and system upgrades to wireless customers. NTP Wireless is the business entity under which the company advertises its services. BGG and Associates, LLC, is the business entity from which the Plaintiffs received their paychecks. Jonathan D. Haley is the president of BGG. The Plaintiffs are represented by: John W. Billhorn, Esq. Meghan A. VanLeuwen, Esq. BILLHORN LAW FIRM 120 S. State Street, Suite 400 Chicago, IL 60603 Telephone: (312) 853-1450 E-mail: jbillhorn@billhornlaw.com mvanleuwen@billhornlaw.com LOUISIANA: Amends Children's Choice Waiver for Chisolm Class ------------------------------------------------------------ The Department of Health and Hospitals, Bureau of Health Services Financing adopts LAC 50:XV.Chapters 1-7 in the Medical Assistance Program as authorized by R.S. 36:254 and pursuant to Title XIX of the Social Security Act. This Emergency Rule is promulgated in accordance with the provisions of the Administrative Procedure Act, R.S. 49:953(B)(1) et seq., and shall be in effect for the maximum period allowed under the Act or until adoption of the final Rule, whichever occurs first. The Department of Health and Hospitals, Bureau of Health Services Financing and the Office for Citizens with Developmental Disabilities promulgated an Emergency Rule which amended the provisions of the Children's Choice Waiver in order to provide for the allocation of waiver opportunities to Medicaid eligible children identified in the Melanie Chisholm, et al vs. Kathy Kliebert class action litigation (hereafter referred to as Chisholm class members) who have a diagnosis of Pervasive Developmental Disorder or Autism Spectrum Disorder, and are in need of applied behavioral analysis-based (ABA) therapy services. (Louisiana Register, Volume 39, Number 10). This action was taken as a temporary measure to ensure Chisholm class members would have access to ABA therapy services as soon as possible. To ensure continued, long-lasting access to ABA-based therapy services for Chisholm class members and other children under the age of 21, the department has now determined that it is necessary to adopt provisions to establish coverage and reimbursement for ABA-based therapy services under the Medicaid State Plan. This action is being taken to avoid imminent peril to the public health and welfare of children who are in immediate need of ABA-based therapy services, and to comply with the judge's order that these services be provided to Chisholm class members. It is estimated that implementation of this Emergency Rule will increase expenditures in the Medicaid Program by approximately $9,523,396 for state fiscal year 2013-2014. Effective February 1, 2014, the Department of Health and Hospitals, Bureau of Health Services Financing adopts provisions to establish coverage and reimbursement for applied behavioral analysis-based therapy services under the Medicaid State Plan. Title 50 PUBLIC HEALTH-MEDICAL ASSISTANCE Part XV. Services for Special Populations Subpart 1. Applied Behavioral Analysis-Based Therapy Services Chapter 1. General Provisions Sec. 101. Program Description and Purpose A. Applied Behavior Analysis-based (ABA) therapy is the design, implementation, and evaluation of environmental modification using behavioral stimuli and consequences to produce socially significant improvement in human behavior, including the direct observation, measurement, and functional analysis of the relations between environment and behavior. ABA-based therapies teach skills through the use of behavioral observation and reinforcement or prompting to teach each step of targeted behavior. ABA-based therapies are based on reliable evidence and are not experimental. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 40: Sec, 103. Recipient Criteria A. In order to qualify for ABA-based therapy services, a Medicaid recipient must meet the following criteria. The recipient must: 1. be from birth up to 21 years of age; 2. exhibit the presence of excesses and/or deficits of behaviors that significantly interfere with home or community activities (examples include, but are not limited to aggression, self-injury, elopement, etc.); 3. be medically stable and does not require 24-hour medical/ nursing monitoring or procedures provided in a hospital or intermediate care facility for persons with intellectual disabilities (ICF/ID); 4. be diagnosed by a qualified health care professional with a condition for which ABA-based therapy services are recognized as therapeutically appropriate, including autism spectrum disorder; 5. have a comprehensive diagnostic evaluation by a qualified health care professional; and 6. have a prescription for ABA-based therapy services ordered by a qualified health care professional. B. All of the criteria in Sec. 103.A must be met to receive services. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 40: Chapter 3. Services Sec. 301. Covered Services and Limitations A. Medicaid covered ABA-based therapy services must be: 1. medically necessary; 2. prior authorized by the Medicaid Program or its designee; and 3. delivered in accordance with the recipient's treatment plan. B. Services must be provided directly or billed by behavior analysts licensed by the Louisiana Behavior Analyst Board. C. Medical necessity for ABA-based therapy services shall be determined according to the provisions of the Louisiana Administrative Code (LAC), Title 50, Part I, Chapter 11 (Louisiana Register, Volume 37, Number 1). D. ABA-based therapy services may be prior authorized for a time period not to exceed 180 days. Services provided without prior authorization shall not be considered for reimbursement, except in the case of retroactive Medicaid eligibility. E. Service Limitations 1. Services shall be based upon the individual needs of the child, and must give consideration to the child's age, school attendance requirements, and other daily activities as documented in the treatment plan. 2. Services must be delivered in a natural setting (e.g., home and community-based settings, including clinics). 3. Any services delivered by direct line staff must be under the supervision of a lead behavior therapist who is a Louisiana licensed behavior analyst. F. Not Medically Necessary/Non-Covered Services. The following services do not meet medical necessity criteria, nor qualify as Medicaid covered ABA-based therapy services: 1. therapy services rendered when measureable functional improvement is not expected or progress has plateaued; 2. services that are primarily educational in nature; 3. services that are duplicative services under an Individualized Family Service Plan (IFSP) or an Individualized Educational Program (IEP), as required under the Federal Individuals with Disabilities Education Act (IDEA); 4. treatment whose purpose is vocationally-or recreationally-based; 5. custodial care; a. for purposes of these provisions, custodial care: i. shall be defined as care that is provided primarily to assist in the activities of daily living (ADLs), such as bathing, dressing, eating, and maintaining personal hygiene and safety; ii. is provided primarily for maintaining the recipient's or anyone else's safety; and iii. could be provided by persons without professional skills or training; and 6. services, supplies, or procedures performed in a non-conventional setting including, but not limited: a. resorts; b. spas; c. therapeutic programs; and d. camps. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 40: Sec. 303. Treatment Plan A. ABA-based therapy services shall be rendered in accordance with the individual's treatment plan. The treatment plan shall: 1. be person-centered and based upon individualized goals; 2. be developed by a licensed behavior analyst; 3. delineate both the frequency of baseline behaviors and the treatment development plan to address the behaviors; 4. identify long, intermediate, and short-term goals and objectives that are behaviorally defined; 5. identify the criteria that will be used to measure achievement of behavior objectives; 6. clearly identify the schedule of services planned and the individual providers responsible for delivering the services; 7. include care coordination involving the parents or caregiver(s), school, state disability programs, and others as applicable; 8. include parent/ caregiver training, support, and participation; 9. have objectives that are specific, measureable, based upon clinical observations, include outcome measurement assessment, and tailored to the individual; and 10. ensure that interventions are consistent with ABA techniques. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 40: Chapter 5. Provider Participation Sec. 501. General Provisions A. Licensed behavior analysts that render ABA-based therapy services shall meet the following provider qualifications: 1. be licensed by the Louisiana Behavior Analyst Board; 2. be covered by professional liability insurance to limits of $1,000,000 per occurrence, $1,000,000 aggregate; 3. have no sanctions or disciplinary actions on their Board Certified Behavior Analyst (BCBA(R)) or Board Certified Behavior Analyst-Doctoral (BCBA-D) certification and/or state licensure; 4. not have Medicare/ Medicaid sanctions, or be excluded from participation in federally funded programs (i.e., Office of Inspector General's List of Excluded Individuals/ Entities (OIG-LEIE), System for Award Management (SAM) listing and state Medicaid sanctions listings); and 5. have a completed criminal background check to include federal criminal, state criminal, parish criminal and sex offender reports for the state and parish in which the behavior analyst is currently working and residing. a. Criminal background checks must be performed at the time of hire and at least five years thereafter. b. Background checks must be current, within a year prior to the initial Medicaid enrollment application. Background checks must be performed at least every five years thereafter. B. Certified assistant behavior analyst that render ABA-based therapy services shall meet the following provider qualifications: 1. must be certified by the Louisiana Behavior Analyst Board; 2. must work under the supervision of a licensed behavior analyst; a. the supervisory relationship must be documented in writing; 3. must have no sanctions or disciplinary actions, if state-certified or board-certified by the BACB(R); 4. may not have Medicaid or Medicare sanctions or be excluded from participation in federally funded programs (OIG-LEIE listing, SAM listing and state Medicaid sanctions listings); and 5. have a completed criminal background check to include federal criminal, state criminal, parish criminal and sex offender reports for the state and parish in which the certified assistant behavior analyst is currently working and residing. a. Evidence of this background check must be provided by the employer. b. Criminal background checks must be performed at the time of hire and an update performed at least every five years thereafter. C. Registered line technicians that render ABA-based therapy services shall meet the following provider qualifications: 1. must be registered by the Louisiana Behavior Analyst Board; 2. must work under the supervision of a licensed behavior analyst; a. the supervisory relationship must be documented in writing; 3. may not have Medicaid or Medicare sanctions or be excluded from participation in federally funded programs (OIG-LEIE listing, SAM listing and state Medicaid sanctions listings); and 4. have a completed criminal background check to include federal criminal, state criminal, parish criminal and sex offender reports for the state and parish in which the certified assistant behavior analyst is currently working and residing. a. Evidence of this background check must be provided by the employer. b. Criminal background checks must be performed at the time of hire and an update performed at least every five years thereafter. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 40: Chapter 7. Reimbursements Sec. 701. General Provisions A. The Medicaid Program shall provide reimbursement for ABA-based therapy services to enrolled behavior analysts who are currently licensed and in good standing with the Louisiana Behavior Analyst Board. B. Reimbursement for ABA services shall not be made to, or on behalf of services rendered by, a parent, a legal guardian or legally responsible person. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 40: Sec. 703. Reimbursement Methodology A. Reimbursement for ABA-based therapy services shall be based upon a percentage of the commercial rates for ABA-based therapy services in the state of Louisiana. The rates are based upon 15 minute units of service, with the exception of mental health services plan which shall be reimbursed at an hourly fee rate. B. Reimbursement shall only be made for services authorized by the Medicaid Program or its designee. AUTHORITY NOTE: Promulgated in accordance with R.S. 36:254 and Title XIX of the Social Security Act. HISTORICAL NOTE: Promulgated by the Department of Health and Hospitals, Bureau of Health Services Financing, LR 40: Implementation of the provisions of this Rule may be contingent upon the approval of the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), if it is determined that submission to CMS for review and approval is required. Interested persons may submit written comments to J. Ruth Kennedy, Bureau of Health Services Financing, P.O. Box 91030, Baton Rouge, LA 70821-9030. She is responsible for responding to inquiries regarding this Emergency Rule. A copy of this Emergency Rule is available for review by interested parties at parish Medicaid offices. Kathy H. Kliebert Secretary MF GLOBAL: Settles Class Action Over Accruance for $14.5 Million ---------------------------------------------------------------- Dan Ivers and Stephanie Russell-Kraft, writing for Law360, report that a former self-regulatory agency for MF Global Inc. has agreed to a $14.5 million settlement that will allow it to exit a proposed class action alleging it played a role in the brokerage's descent into bankruptcy and accruance of a $1.6 billion shortfall in customer funds. Chicago-based futures and options exchange CME Group Inc. will seek an order to establish superpriority on a previously approved $29 million claim in MF Global's ongoing Chapter 11 case, with the condition that half of any proceeds recovered will go to the plaintiffs, according to a memorandum filed Wednesday in New York federal court. The two parties had been engaged in arm's-length negotiations for nearly a year, according to the memorandum. The settlement will allow CME to exit the suit against MF Global, its CEO and former New Jersey Gov. Jon Corzine, as well as other company officials, affiliated companies and financial institutions. The putative class, comprised of former MF Global commodity customers, will still be allowed to pursue its claims against all remaining defendants should the agreement be approved. CME, which had served as MF Global's self-regulatory agency prior to its bankruptcy filing, was drawn into the case when it was named as a defendant in a number of class actions filed by MF Global investors, alleging that it failed to provide proper oversight that might have prevented the company's downfall. The plaintiffs in the ongoing class action allege that MF Global issued a financial statement in May 2011 saying the firm had established a "global, robust risk-management environment" to manage all aspects of its risks. In reality, however, MF Global was suffering from serious liquidity pressures based on its exposure to the European debt crisis. After initially denying that any money was missing, the firm on Oct. 31, 2011, informed regulators of a $1.6 billion shortfall in its customer funds. On the same day, it filed Chapter 11 protection in New York bankruptcy court, prompting the New York Stock Exchange to suspend trading in MF Global shares. The first class action against the company was filed by investor Joseph DeAngelis in November 2011, and was followed by a total of 11 others. Those suits have since been consolidated into multidistrict litigation, which is still in pretrial in New York federal court. Andrew J. Entwistle and Joshua K. Porter of Entwistle & Cappucci LLP and Merrill G. Davidoff -- davidoff@bm.net -- and Michael Dell'Angelo -- mdellangelo@bm.net -- of Bergen & Montague PC are serving as co-lead counsel in the case. CME is represented by Gregory M. Boyle -- gboyle@jenner.com -- Jeffrey S. Eberhard -- jeberhard@jenner.com -- Brian Jason Fischer -- bfischer@jenner.com -- and Charles B. Sklarsky -- csklarsky@jenner.com -- of Jenner & Block LLP. An executive committee for the litigation is composed of William C. Carmody, Charles Eskridge, Marc Seltzer and Jacob W. Buchdahl of Susman Godfrey LLP, Michael H. Moirano -- mmoirano@nisen.com -- Claire E. Gorman -- cgormankenny@nisen.com -- and Brittany E. Kirk of Nisen & Elliot LLC, Jay W. Eisenhofer, Linda P. Nussbaum, Matthew P. Morris and Shelly L. Friedland of Grant & Eisenhofer PA and Keith M. Fleischman and Francis Karam of Fleischman Law Firm PLLC. The case is DeAngelis v. Corzine et al., case number 1:11-cv- 07866, and MF Global Holdings Ltd. Investment Litigation, case number 1:12-md-02338, in the U.S. District Court for the Southern District of New York. MICHAELS STORES: Faces Class Action Over Data Breach ---------------------------------------------------- NBC Chicago reports that an Illinois couple on Jan. 29 filed a class action lawsuit against the Michaels craft store chain, alleging the retailer should have stepped up security measures following a security breach nearly three years ago. Michael C. Gouwens and his wife, Jessica E. Gouwens, say a security breach earlier this month may have compromised the credit and debit card information of the company's customers, and that breach is a violation of an implied contract with customers to safeguard their credit information. Further, the suit claims the chain violated the Illinois Consumer Fraud Act by failing to implement proper security measures, warn shoppers that their data was at risk or notify affected customers of the nature and extent of the breach. Michaels issued a statement Jan. 25 stating that the company had learned about a possible data security attack and warning customers to look out for fraudulent purchases. The suit notes that Michaels experienced a similar breach in 2011 which should have alerted the company of the need for additional security measures. The two-count lawsuit is seeking an undisclosed amount in compensatory and punitive damages. MONEY MART: Loses Bid to Derail Class Action Over Payday Loans -------------------------------------------------------------- The Canadian Press reports that the Supreme Court of Canada won't hear an appeal in a case where Money Mart sought to derail a class-action suit over payday loans. Two Calgary men, Gareth Young and H. Craig Day, are representative plaintiffs in the class action, which argues that the lender's fees for short-term loans are unlawful. The lender argued that the two men had signed an agreement that they would use arbitration in the event of a dispute and that they would not take part in a class action. The Alberta courts ruled that provincial law allows the men to sue. The lower courts said the arbitration clauses are only effective if they are formally approved by the provincial government. Money Mart applied for that approval twice, but was turned down. NOVARTIS CONSUMER: Removed "Cortina" Suit to S.D. California ------------------------------------------------------------ The putative class action lawsuit styled Cortina v. Novartis Consumer Health, Inc., Case No. 37-02013-00078571-CU-BT-CTL, was removed from the California Superior Court for the County of San Diego, California, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:14-cv-00069-MMA-KSC to the proceeding. The case is an alleged consumer class action lawsuit purporting to assert claims for violations of the California Business & Professions Code, as well as the California Civil Code. The lawsuit arises out of the sale of NCH's over-the-counter pharmaceutical product Excedrin(R) Migraine. Novartis Consumer Health, Inc., sells Excedrin(R) Migraine principally to distributors or wholesalers, who distribute the products to retailers. The Plaintiff is represented by: Annick Marie Persinger, Esq. Lawrence Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: apersinger@bursor.com ltfisher@bursor.com The Defendant is represented by: Aton Arbisser, Esq. Daniel Paluch, Esq. KAYE SCHOLER LLP 1999 Avenue of the Stars, Suite 1600 Los Angeles, CA 90067-6048 Telephone: (310) 788-1000 Facsimile: (310) 788-1207 E-mail: aarbisser@kayescholer.com daniel.paluch@kayescholer.com POOL COVER: Fails to Pay for Overtime Work, "Graham" Suit Claims ---------------------------------------------------------------- Michael E. Graham v. Pool Cover Solutions of the Southeast, LLC, Jonathon Windmueller, and Kris Windmueller, individually, Case No. 2:14-cv-00085-DCN (D.S.C., January 10, 2014) is brought against the Defendants for their alleged violation of the Fair Labor Standards Act. The Plaintiff says that he regularly worked over 40 hours a week for the Defendants and was a non-exempt employee. Hence, he asserts, he was entitled to overtime pay when he worked more than 40 hours a week. Pool Cover Solutions of the Southeast, LLC, is a South Carolina for-profit corporation. Jonathon Windmueller and Kris Windmueller are coowners and operators of Pool Cover. The Defendants sell, install, repair and service safety products for residential and commercial pools throughout the southeast. The Plaintiff is represented by: Marybeth Mullaney, Esq. MULLANEY LAW, LLC 321 Wingo Way, Suite 201 Mount Pleasant, SC 29464 Telephone: (800) 385-8160 E-mail: marybeth@mullaneylaw.net QUALITY FINISHING: Fails to Properly Pay Overtime Wage, Suit Says ----------------------------------------------------------------- Vidal Maldonado, on behalf of himself and all other similarly situated persons, known and unknown v. Quality Finishing Service, Inc. and Jose Rincon, individually, Case No. 1:14-cv-00188 (N.D. Ill., January 10, 2014) arises under the Fair Labor Standards Act for the Defendants' alleged failure to pay overtime wages due to the Plaintiff during his employment. Specifically, the Plaintiff argues, the Defendants have violated the FLSA by failing to pay him and other similarly situated persons at a rate equal to one and one-half times their regular rate of pay for all hours worked in excess of 40 per workweek. QFS is an Illinois corporation headquartered in Elk Grove Village, Illinois. The Company is engaged in the business of furniture refinishing and cabinetry. Jose Rincon is the owner of QFS. The Plaintiff is represented by: Alejandro Caffarelli, Esq. Madeline K. Engel, Esq. CAFFARELLI & SIEGEL LTD. Two Prudential Plaza 180 North Stetson, Suite 3150 Chicago, IL 60601 Telephone: (312) 540-1230 Facsimile: (312) 540-1231 E-mail: acaffarelli@cslaw.com mengel@cslaw.com SABRE INC: Judge Tosses Text-Spamming Class Action in California ---------------------------------------------------------------- Andrew Scurria, writing for Law360, reports that a California federal judge on Jan. 28 axed a text-spamming class action against travel technology contractor Sabre Inc., ruling that by providing an airline with her cellphone number when booking a flight, the plaintiff gave permission to be contacted. U.S. District Judge Stephen V. Wilson determined that under Federal Communications Commission rulemakings implementing the Telephone Consumer Protection Act, plaintiff Shaya Baird gave express consent to be contacted about her flight when she entered her cellphone number as part of Hawaii Airlines' online reservation process. Ms. Baird mounted her complaint based on a single unsolicited text message she later received from Sabre, which was under contract with the airline, offering flight notification services. The suit brought TCPA claims on amendment and argued that she did not consent to any messaging, having been compelled to provide a number to book her flight. Judge Wilson, though, cited a 1992 FCC order that held that a consumer who knowingly releases a phone number has "in effect" given invitation or permission to be contacted via an automated system in connection with related business transactions. The judge acknowledged that applying the rulemaking appeared to dilute the TCPA's requirement that message senders have a recipient's "express" consent, but nonetheless found its definition of consent dispositive of Baird's claims. Consent in her case can be inferred from the act of providing the number, according to the opinion. Having tossed the TCPA claims, the judge also dismissed Baird's derivative claims under California's Unfair Competition Law. Judge Wilson was unmoved by Ms. Baird's claim that she did not consent because she was required to provide at least one phone number to book her flight, saying that the act of providing the number was voluntary because no one forced her to choose Hawaiian Airlines. The judge also noted that Ms. Sabre's text did not originate from a third party unaffiliated with the entity to whom the number was provided, saying that no reasonable consumer could believe that all communications about a scheduled flight must only come from the airline itself. Ms. Baird had previously failed on claims under both the UCL and the Telecommunications Privacy Act, with Judge Wilson ruling in July that she had failed to show she suffered an economic injury as a result of the text. In so doing, the judge said that Ms. Baird lacked standing since she never alleged that the bill for her cellphone service plan was affected in any way. The text in question came from a number listed only as "72273" that read "Reply yes for flight notification services. Standard rates may apply." The message also included the address for a website that Sabre owns and operates to promote its products. In siding with Sabre on the consent issue on Jan. 28, Judge Wilson sidestepped the company's assertion that the technology used to send the messages did not qualify as an automated dialing system covered by the TCPA, an argument that has recently gained traction in increasingly frequent class actions over unwanted calls and texts. Counsel for Ms. Baird said they were reviewing the opinion and considering their options. Counsel for Sabre did not immediately respond to a request for comment. Ms. Baird is represented by Ronald A. Hartmann, Kurt E. Kananen and Kenneth King of Hartmann & Kananen. Sabre is represented by Joshua Briones -- joshua.briones@dlapiper.com -- Ana Tagvoryan -- ana.tagvoryan@dlapiper.com -- and Esteban Morales -- esteban.morales@dlapiper.com -- of DLA Piper LLP (US). The case is Shaya Baird v. Sabre Inc. et al., case number 2:13-cv- 00999, in the U.S. District Court for the Central District of California. SASKTEL: Alberta Suit Over Cell Service Access Fees Can Proceed --------------------------------------------------------------- CBC News reports that an Alberta judge has ruled that people in that province can sue SaskTel over cellphone service access fees. These are the fees -- between $6 and $7 a month -- that cellphone companies started tacking on to customers bills in the late 1980s. A number of companies have dropped or changed the fees in recent years, but several class action lawsuits that call the fees "unlawful" have been launched across Canada. One class action in Alberta names SaskTel as a defendant (along with a number of other Canadian phone companies) and a Calgary woman as plaintiff. It claims more than 4,000 SaskTel customers who have billing addresses in Alberta were paying the fees starting in 1987. Lawyers with the Regina-based telecommunications company say it doesn't do business in Alberta, doesn't have offices there and only 1.47 per cent of its customers have Alberta billing addresses. Furthermore, if people in Alberta want to get involved in the action, they can always join a related class action that was launched in Saskatchewan, the company said. However, an Alberta Court of Queen's Bench judge ruled Jan. 24 that Alberta courts do indeed have jurisdiction. "I conclude that a real and substantial connection between the claim against SaskTel and Alberta [does] exist," Justice Donald Lee wrote in his 28-page decision. "I accept that potentially 4,035 Albertans may have been unlawfully charged system access fees by SaskTel, as alleged in the plaintiff's statement of claim." The Alberta suit, as well as the one in Saskatchewan, was initiated by the Merchant Law Group, a Regina law firm that has been involved in numerous class actions concerning everything from rail accidents to the cost of chocolate bars. SHAPIRO FISHMAN: Suit Alleges Fair Debt Collection Act Violations ----------------------------------------------------------------- Linda Susan Karp, individually and on behalf of all others similarly situated v. Shapiro, Fishman & Gache, LLP, a Florida General Partnership, Case No. 6:14-cv-00046-JA-TBS (M.D. Fla., January 10, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: N. James Turner, Esq. N. JAMES TURNER, LLC 37 N Orange Ave., Suite 500 Orlando, FL 32801 Telephone: (888) 877-5103 E-mail: njtlaw@gmail.com SHELTER MUTUAL: Removed "Cherry" Class Suit to W.D. Arkansas ------------------------------------------------------------ The class action lawsuit captioned Cherry, et al. v. Shelter Mutual Insurance Company, Case No. 46CV-13-00296-2, was removed from the Miller County Circuit Court to the U. S. District Court for the Western District of Arkansas (Texarkana). The District Court Clerk assigned Case No. 4:14-cv-04014-SOH to the proceeding. The case asserts claims related to insurance contract. The Plaintiffs are represented by: D. Matt Keil, Esq. John C. Goodson, Esq. KEIL & GOODSON P.O. Box 618 406 Walnut Street Texarkana, AR 75504-0618 Telephone: (870) 772-4113 Facsimile: (870) 773-2967 E-mail: mkeil@kglawfirm.com jcgoodson@kglawfirm.com - and - George L. McWilliams, Esq. LAW OFFICE OF GEORGE L. MCWILLIAMS, P.C. 406 Walnut Texarkana, AR 71854 Telephone: (870) 772-2055 Facsimile: (870) 773-2967 E-mail: glmlawoffice@gmail.com - and - Jason Earnest Roselius, Esq. THE ROSELIUS LAW FIRM 13190 N. MacArthur Blvd. Oklahoma City, OK 73142 Telephone: (405) 603-2222 Facsimile: (405) 603-2250 E-mail: roselius@roseliuslaw.com - and - Stevan Earl Vowell, Esq. Timothy J. Myers, Esq. W.H. Taylor, Esq. TAYLOR LAW FIRM 303 East Millsap Road P.O. Box 8310 Fayetteville, AR 72703 Telephone: (479) 443-5222 Facsimile: (479) 443-7842 E-mail: svowell@taylorlawpartners.com tmyers@taylorlawpartners.com whtaylor@taylorlawpartners.com - and - William B. Putman, Esq. TAYLOR LAW PARTNERS 303 E. Millsap Road P.O. Box 8310 Fayetteville, AR 72703 Telephone: (479) 443-5222 E-mail: wbputman@taylorlawpartners.com - and - A.F. (Tom) Thompson, III, Esq. Kenneth (Casey) Castleberry, Esq. MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY P. O. Box 2595 1141 East Main Street, Suite 300 Batesville, AR 72503 Telephone: (870) 793-3821 Facsimile: (870) 793-3815 E-mail: aftomt2001@yahoo.com caseycastleberry2003@yahoo.com - and - Stephen C. Engstrom, Esq. WILSON, ENGSTROM, CORUM & COULTER 200 South Commerce, Suite 600 P.O. Box 71 Little Rock, AR 72203 Telephone: (501) 375-6453 E-mail: stephen@wecc-law.com The Defendant is represented by: John E. Moore, Esq. Beverly A. Rowlett, Esq. Sarah E. Cullen, Esq. MUNSON, ROWLETT, MOORE & BOONE, P.A. 1900 Regions Center 400 W. Capitol, Suite 1900 Little Rock, AR 72201 Telephone: (501) 374-6535 Facsimile: (501) 374-5906 E-mail: john.moore@mrmblaw.com beverly.rowlett@mrmblaw.com sarah.cullen@mrmblaw.com SHELTER MUTUAL: Removed "Goodner" Class Suit to W.D. Arkansas ------------------------------------------------------------- Shelter Mutual Insurance Company removed the purported class action lawsuit titled Goodner, et al. v. Shelter Mutual Insurance Company, Case No. 46CV13-278-1, from the Circuit Court of Miller County, Arkansas, to the U. S. District Court for the Western District of Arkansas (Texarkana). The District Court Clerk assigned Case No. 4:14-cv-04013-SOH to the proceeding. The lawsuit alleges contract dispute relating to insurance. The Plaintiffs are represented by: D. Matt Keil, Esq. John C. Goodson, Esq. KEIL & GOODSON P.O. Box 618 406 Walnut Street Texarkana, AR 75504-0618 Telephone: (870) 772-4113 Facsimile: (870) 773-2967 E-mail: mkeil@kglawfirm.com jcgoodson@kglawfirm.com - and - George L. McWilliams, Esq. LAW OFFICE OF GEORGE L. MCWILLIAMS, P.C. 406 Walnut Texarkana, AR 71854 Telephone: (870) 772-2055 Facsimile: (870) 773-2967 E-mail: glmlawoffice@gmail.com - and - Jason Earnest Roselius, Esq. THE ROSELIUS LAW FIRM 13190 N. MacArthur Blvd. Oklahoma, OK 73142 Telephone: (405) 603-2222 Facsimile: (405) 603-2250 E-mail: roselius@roseliuslaw.com - and - Stevan Earl Vowell, Esq. Timothy J. Myers, Esq. W.H. Taylor, Esq. William B. Putman, Esq. TAYLOR LAW FIRM 303 East Millsap Road P.O. Box 8310 Fayetteville, AR 72703 Telephone: (479) 443-5222 Facsimile: (479) 443-7842 E-mail: svowell@taylorlawpartners.com tmyers@taylorlawpartners.com whtaylor@taylorlawpartners.com wbputman@taylorlawpartners.com - and - A.F. (Tom) Thompson, III, Esq. Kenneth (Casey) Castleberry, Esq. MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY P. O. Box 2595 1141 East Main Street, Suite 300 Batesville, AR 72503 Telephone: (870) 793-3821 Facsimile: (870) 793-3815 E-mail: aftomt2001@yahoo.com caseycastleberry2003@yahoo.com - and - Stephen C. Engstrom, Esq. WILSON, ENGSTROM, CORUM & COULTER 200 South Commerce, Suite 600 P.O. Box 71 Little Rock, AR 72203 Telephone: (501) 375-6453 E-mail: stephen@wecc-law.com The Defendant is represented by: John E. Moore, Esq. Beverly A. Rowlett, Esq. Sarah E. Cullen, Esq. MUNSON, ROWLETT, MOORE & BOONE, P.A. 1900 Regions Center 400 W. Capitol, Suite 1900 Little Rock, AR 72201 Telephone: (501) 374-6535 Facsimile: (501) 374-5906 E-mail: john.moore@mrmblaw.com beverly.rowlett@mrmblaw.com sarah.cullen@mrmblaw.com SOUTH DAKOTA: Tribes' Suit Can Proceed as Class Action ------------------------------------------------------ Kyla Asbury, writing for Legal Newsline, reports that a lawsuit from two Native American tribes accusing state officials of violating federal law can proceed as a class action lawsuit. LuAnn Van Hunnik, the person in charge of Child Protective Services in South Dakota; Mark Vargo, the State's Attorney for Pennington County, S.D.; the Hon. Jeff Davis, the presiding judge of the Seventh Judicial Circuit Court of South Dakota; and Kim Malsam-Rysdon, the secretary of the South Dakota Department of Social Services were all named as defendants in the suit. District Judge Jeffrey L. Viken refused to dismiss the lawsuit on Jan. 28, and ruled that parts of it can proceed at an expedited pace as a class-action case, according to court documents. Congress passed the Indian Child Welfare Act in 1978 because of the once high number of Indian children being removed from their homes by public and private agencies. Oglala Sioux Tribe, Rosebud Sioux Tribe, Rochelle Walking Eagle, Madonna Pappan and Lisa Young all claimed the defendants violated the Indian Child Welfare Act by holding improper hearings after children were removed from homes, according to a complaint filed March 21 in the U.S. District Court for the U.S. District Court for the District of South Dakota-Western Division. The plaintiffs are seeking preliminary and permanent injunctive relief. They are being represented by Rachel E. Goodman and Stephen L. Pevar of the American Civil Liberties Union; and Dana Hanna of Hanna Law Office PC. Ms. Van Hunnik and Ms. Malsam-Rysdon are being represented by Robert L. Morris of Day Morris Law Firm LLP. Mr. Vargo is being represented by Sara Frankenstein -- sfrankenstein@gpnalaw.com -- and J. Crisman Palmer -- cpalmer@gpnalaw.com -- of Gunderson, Palmer, Nelson & Ashmore LLP. Mr. Davis is being represented by Roxanne Giedd and Ann F. Mines of the South Dakota Attorney General's Office; and Nathan R. Oviatt -- nate@goodsellquinn.com -- of Goodsell Quinn LLP. U.S. District Court for the District of South Dakota-Western Division case number: 5:13-cv-05020 SOUTHERN COMPANY: Suit Over Hurricane Katrina Damage Now Closed --------------------------------------------------------------- The case against The Southern Company on behalf of Mississippi residents seeking recovery for property damage and personal injuries caused by Hurricane Katrina is now concluded, according to the company's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In 2005, immediately following Hurricane Katrina, a lawsuit was filed in the U.S. District Court for the Southern District of Mississippi by Ned Comer on behalf of Mississippi residents seeking recovery for property damage and personal injuries caused by Hurricane Katrina. In 2006, the plaintiffs amended the complaint to include Southern Company and many other electric utilities, oil companies, chemical companies, and coal producers. The plaintiffs allege that the defendants contributed to climate change, which contributed to the intensity of Hurricane Katrina. In 2007, the U.S. District Court for the Southern District of Mississippi dismissed the case. On appeal to the U.S. Court of Appeals for the Fifth Circuit, a three-judge panel reversed the U.S. District Court for the Southern District of Mississippi, holding that the case could proceed, but, on rehearing, the full U.S. Court of Appeals for the Fifth Circuit dismissed the plaintiffs' appeal, resulting in reinstatement of the decision of the U.S. District Court for the Southern District of Mississippi in favor of the defendants. In 2011, the plaintiffs filed an amended version of their class action complaint, arguing that the earlier dismissal was on procedural grounds and under Mississippi law the plaintiffs have a right to re-file. The amended complaint was also filed against numerous chemical, coal, oil, and utility companies, including Alabama Power, Georgia Power, Gulf Power, and Southern Power. On May 14, 2013, the U.S. Court of Appeals for the Fifth Circuit upheld the U.S. District Court for the Southern District of Mississippi's March 2012 dismissal of the case. The case is now concluded. TARGET CORP: Commercial Bancshares Sues Over Security Breach ------------------------------------------------------------ Commercial Bancshares, Inc., Individually and On Behalf of All Others Similarly Situated v. Target Corporation, Case No. 4:14-cv- 04012-SOH (W.D. Ark., January 10, 2014) is a class action on behalf of all banks, credit unions, and other financial institutions that were forced to communicate with customers, close out and open new customer accounts, reissue credit and debit cards, and absorb unauthorized charges to customers' accounts in the wake of the security breach compromising Target store customers' names, card numbers, card expiration dates, personal identification numbers, and card verification values during a period between approximately November 27, 2013, and December 15, 2013. Incorporated in Minnesota and headquartered in Minneapolis, Target Corporation operates a chain of retail stores that sell merchandise including home goods, electronics, and clothing. The Company owns approximately 1,797 stores and 37 distribution centers in 49 states and the District of Columbia. The Plaintiff is represented by: John C. Goodson, Esq. D. Matt Keil, Esq. KEIL & GOODSON P.A. 406 Walnut Street Texarkana, AR 71854 Telephone: (870) 772-4113 Facsimile: (870) 773-2967 E-mail: jcgoodson@kglawfirm.com mkeil@kglawfirm.com - and - Joseph H. Meltzer, Esq. Sean M. Handler, Esq. Naumon A. Amjed, Esq. Ryan T. Degnan, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: jmeltzer@ktmc.com shandler@ktmc.com namjed@ktmc.com rdegnan@ktmc.com - and - Brad E. Seidel, Esq. Christopher R. Johnson, Esq. Andrew G. Pate, Esq. NIX, PATTERSON & ROACH, LLP 3600 N. Capital of Texas Highway Building B, Suite 350 Austin, TX 78746 Telephone: (512) 328-5333 Facsimile: (512) 328-5335 E-mail: cjohnson@npraustin.com TARGET CORP: Shapiro Talks About Data Breach Cases -------------------------------------------------- Brenda Craig at LawyersandSettlements.com reports that data thieves are constantly on the prowl -- slipping in through unlocked doors and then helping themselves to untold bytes of valuable information that they can profit from. Over the last 10 years, the numbers of cyber theft reports have skyrocketed, and barely a day goes by now without hackers busting though a data security system. Organizations and companies are often embarrassed to have to admit that their security system was inadequate or unable to protect private information from computer robbers. Typically, it is months before they even know the data has been burgled. According to a 2012 report by Verizon, a data breach costs companies an average of $7 million. What the cost is to consumers or the people whose data was carted off to unknown spaces and places is not very well understood. "We have some information, but not a lot," says Fred Cate, professor of law at the University of Indiana's Mauer School of Law, and also Research Director for the Center for Applied Cybersecurity. "Here's what I think we know. The vast majority of people suffer no loss at all. A significant number suffer inconvenience and a few people suffer an intensive loss. "It's not that those people who suffer intensively lose money, it's that they have to keep trying to get things fixed," says Cate. "Their credit report is linked to a wrongdoer's credit report and they have to keep filing police reports, or calling the credit agency and so on. These people describe months and months of never knowing when it will pop up again. It's very unpleasant and I would not want it to happen to me." Thirty years ago, Congress passed a law limiting credit card liability to $50. Most companies, in the wake of a data breach, wave that and quickly deactivate cards to mitigate losses. One of the largest and most recent data breaches involves Target and the theft of 40 million credit and debit card records, plus names and addresses of 70 million customers. The latest numbers now put that count at nearly 100 million. Information like this is often sold in large lots on black market Internet sites. Attorney Thomas Shapiro, from the Boston firm of Shapiro, Haber and Urmy, which specializes in complex litigation, is among the legal firms currently involved in a class-action suit against the retailer. "When it comes to a large data breach like the Target case, even a smaller percentage of people being harmed significantly means thousands of people," says Shapiro "I think the law is still a little unsettled and it is true that the courts in some states have been very restrictive in terms of the damages they recognize," says Shapiro. While it's correct to say that consumer liability is limited when it comes to the fraudulent use of credit cards, Shapiro argues that there are other significant costs for individuals caught up in a data breach. "Target is offering to pay for one year of credit monitoring, but we've had other cases where retailers have paid for up to three years of credit monitoring. This is an expensive service." There are other costs related to re-issuing driver's licenses, other government identification, and there is, of course, the time lost. "A big element of the damages involved is related to the inconvenience and effort it takes to replace credit cards and figure out what automatic payments are charged to them every month. Some people have more than one credit card," argues Shapiro. There is also a certain fear and trepidation about these kinds of data breaches says Shapiro. Although the courts have so far been slow to see this, he believes that not all states have had an opportunity to deal with these kinds of cases and the law is evolving. TATA CONSULTANCY: Class Seeks to Recover Unpaid Overtime Wages -------------------------------------------------------------- Luis Rosa, on his own behalf and on behalf of others similarly situated v. Tata Consultancy Services Limited and The Depository Trust & Clearing Corporation, Case No. 1:14-cv-00196-AT (S.D.N.Y., January 10, 2014) is brought to recover unpaid overtime wages, and related relief, under the Fair Labor Standards Act. Tata Consultancy Services Limited is an Indian corporation authorized to do business in New York. Tata's business consists of information technology consulting, services and business solutions. The Depository Trust & Clearing Corporation is a New York corporation. DTCC's business consists of providing financial and related services to institutional clients. Services provided by DTCC include the clearing and settlement of securities transactions, the processing of mutual fund transactions, and related information services. The Plaintiff is represented by: Daniel R. Bright, Esq. SCHWARTZ, LICHTEN & BRIGHT, P.C., 475 Park Avenue South, 17th Floor New York, NY 10016 Telephone: (212) 358-1500 Facsimile: (212) 358-0207 E-mail: dbright@lichtenandbright.com TRAVELERS HOME: "Tommey" Class Suit Removed to W.D. Arkansas ------------------------------------------------------------ The purported class action lawsuit titled Tommey, et al. v. Travelers Home and Marine Insurance Company, et al., Case No. 46CV13-279-1, was removed from the Circuit Court of Miller County, Arkansas, to the U. S. District Court for the Western District of Arkansas (Texarkana). The District Court Clerk assigned Case No. 4:14-cv-04015-SOH to the proceeding. The case asserts insurance-related claims. The Plaintiffs are represented by: D. Matt Keil, Esq. John C. Goodson, Esq. KEIL & GOODSON 406 Walnut Street P.O. Box 618 Texarkana, AR 75504-0618 Telephone: (870) 772-4113 Facsimile: (870) 773-2967 E-mail: mkeil@kglawfirm.com jcgoodson@kglawfirm.com - and - George L. McWilliams, Esq. LAW OFFICE OF GEORGE L. MCWILLIAMS, P.C. 406 Walnut Texarkana, AR 71854 Telephone: (870) 772-2055 Facsimile: (870) 773-2967 E-mail: glmlawoffice@gmail.com - and - R. Martin Weber, Jr., Esq. Richard E. Norman, Esq. CROWLEY NORMAN LLP Three Riverway, Suite 1775 Houston, TX 77056 Telephone: (713) 651-1771 Facsimile: (713) 651-1775 E-mail: mweber@crowleynorman.com rnorman@crowleynorman.com - and - Stevan Earl Vowell, Esq. Timothy J. Myers, Esq. W.H. Taylor, Esq. TAYLOR LAW FIRM 303 East Millsap Road P.O. Box 8310 Fayetteville, AR 72703 Telephone: (479) 443-5222 Facsimile: (479) 443-7842 E-mail: svowell@taylorlawpartners.com tmyers@taylorlawpartners.com whtaylor@taylorlawpartners.com - and - William B. Putman, Esq. TAYLOR LAW PARTNERS 303 E. Millsap Road P.O. Box 8310 Fayetteville, AR 72703 Telephone: (479) 443-5222 E-mail: wbputman@taylorlawpartners.com - and - A.F. (Tom) Thompson, III, Esq. Kenneth (Casey) Castleberry, Esq. MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY P. O. Box 2595 1141 East Main Street, Suite 300 Batesville, AR 72503 Telephone: (870) 793-3821 Facsimile: (870) 793-3815 E-mail: aftomt2001@yahoo.com caseycastleberry2003@yahoo.com - and - Stephen C. Engstrom, Esq. WILSON, ENGSTROM, CORUM & COULTER 200 South Commerce, Suite 600 P.O. Box 71 Little Rock, AR 72203 Telephone: (501) 375-6453 E-mail: stephen@wecc-law.com The Defendant is represented by: Lyn Peeples Pruitt, Esq. MITCHELL, WILLIAMS, SELIG, GATES & WOODYARD 425 West Capitol Ave., Suite 1800 Little Rock, AR 72201-3525 Telephone: (501) 688-8800 Facsimile: (501) 688-8807 E-mail: lpruitt@mwlaw.com UMPQUA HOLDINGS: Uncertain on Effect of Antitrust Suit Settlement ----------------------------------------------------------------- The effect of a proposed settlement to resolve In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation on the value of Umpqua Bank's Class B common stock is unknown at this time, according to Umpqua Holdings Corporation's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On July 13, 2012, Visa Inc. announced that it had entered into a memorandum of understanding obligating it to enter into a settlement agreement to resolve the multi-district interchange litigation brought by the class plaintiffs in the matter styled In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, Case No. 5-MD-1720 (JG) (JO) pending in the U.S. District Court for the Eastern District of New York. The claims originally were brought by a class of U.S. retailers in 2005. The proposed settlement is subject to court approval and Visa's share of the settlement to be paid is estimated to be approximately $4.4 billion. However, certain trade associations and merchants are actively opposing the proposed settlement and it is unknown when or if the proposed settlement will be approved. A fairness hearing was held on September 12, 2013 to determine if the settlement will be finally approved. It is not known when the Court will issue an order related to the motion for final approval of the settlement. The effect of this proposed settlement on the value of the Bank's Class B common stock is unknown at this time. UMPQUA HOLDINGS: Claims Remain in Overdraft Fees Litigation ----------------------------------------------------------- Umpqua Bank faces remaining claims in the action relating to overdraft fees and the posting order of point of sale and ACH items, according to Umpqua Holdings Corporation's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In the company's Form 10-K for the period ending December 31, 2011, the company initially reported on a class action lawsuit filed in the U.S. District Court for the Northern District of California against the Bank by Amber Hawthorne relating to overdraft fees and the posting order of point of sale and ACH items. On October 25, 2013, U.S. District Judge Jon S. Tigar issued an order dismissing with prejudice the plaintiff's claims for "unfair" prong of the California Unfair Competition Law (the UCL), breach of the implied covenant of good faith and fair dealing, breach of contract, and unjust enrichment. Accordingly, the only claims remaining in the action are for alleged violation of the "unlawful" and "fraudulent" prongs of the UCL and for conversion. UMPQUA HOLDINGS: Suit Over Merger Remains Pending in Wash. Court ---------------------------------------------------------------- Umpqua Holdings Corporation continues to face a consolidated suit filed in Spokane County, Washington, Superior Court arising from the proposed Sterling Financial Corporation merger, according to Umpqua Holdings Corporation's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. The Company has also been named as a defendant in two separate class action lawsuits filed in Spokane County, Washington, Superior Court arising from the proposed Sterling merger (Case Nos. 13-2-03848-4 and 13-2-03904-9). Specifically, the plaintiffs in the actions allege that Sterling and its directors breached their fiduciary shareholder duties by agreeing to the merger terms and that the Company aided and abetted such breach. The actions further seek to enjoin the proposed Sterling merger. The court has consolidated the cases before a single judge for further administration. No other material developments have occurred since entry of the court's consolidation order. UNIDINE CORP: Class Seeks to Recover Unpaid Wages and Damages ------------------------------------------------------------- Rosa Arias, on behalf of herself and all other persons similarly situated v. Unidine Corporation, Case No. 1:14-cv-00158-AKH (S.D.N.Y., January 10, 2014) alleges that pursuant to the Fair Labor Standards, the Plaintiff is entitled to: (a) unpaid wages from the Defendants, jointly and severally, for work performed for which they received no compensation at all; (b) unpaid wages from the Defendant, for overtime work for which they did not receive overtime premium pay as required by law, and (c) liquidated damages pursuant to the FLSA. Unidine is foreign business corporation authorized to conduct business in New York with its principal place of business in Boston, Massachusetts. Unidine is a food and dining management company servicing seniors, hospitals and certain businesses. Until approximately April 2012, Amsterdam Nursing Home operated its own food service operation. Thereafter, in April 2012, Amsterdam outsourced its food service to Unidine, which retained nearly all of Amsterdam's employees, including the Plaintiff. Unidine is successor in interest to Amsterdam. The Plaintiff is represented by: Alexander Granovsky, Esq. GRANOVSKY & SUNDARESH PLLC 48 Wall Street, 11th Floor New York, NY 10005 Telephone: (646) 524-6001 Facsimile: (646) 417-5500 E-mail: ag@g-s-law.com VOLKSWAGEN GROUP: "Speier-Roche" Suit Transferred to S.D. Florida ----------------------------------------------------------------- The class action lawsuit styled Speier-Roche v. Volkswagen Group of America, Inc., et al., Case No. 2:13-cv-05821, was transferred from the U.S. District Court for the District of New Jersey to the U.S. District Court for the Southern District of Florida (Miami). The Florida District Court Clerk assigned Case No. 1:14-cv-20107- FAM to the proceeding. According to the complaint, the braking system installed in the 2007 to present Audi Q7 vehicles ("Class Vehicles") suffer from a defect that causes, among other things, the Class Vehicles' brake pads to wear out prematurely, and require replacement approximately every 7,500 to 15,000 miles, far more frequently than in a properly functioning braking system ("Brake Defect"). The Plaintiff alleges that although defects in material, manufacturing and workmanship are covered by Audi's New Vehicle Limited Warranty, Audi has failed to repair the Brake Defect under warranty. The Plaintiff is represented by: Matthew Ross Mendelsohn, Esq. MAZIE SLATER KATX & FREEMAN, LLC 103 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 228-9898 E-mail: mmendelsohn@mskf.net - and - Michael Scott Olin, Esq. MICHAEL S. OLIN, P.A. 169 East Flagler Street, Suite 1224 Miami, FL 33131 Telephone: (305) 677-5088 Facsimile: (305) 677-5089 E-mail: igarcia@olinlawfirm.com The Defendants are represented by: Jeffrey L. Chase, Esq. HERZFELD & RUBIN, P.C. 125 Broad Street New York, NY 10004 Telephone: (212) 471-8500 E-mail: jchase@herzfeld-rubin.com - and - Larry Martin Roth, Esq. Michael Daniel Begey, Esq. RUMBERGER, KIRK & CALDWELL, P.A. Lincoln Plaza 300 South Orange Avenue, Suite 1400 P.O. Box 1873 (32802-1873) Orlando, FL 32801 Telephone: (407) 872-7300 Facsimile: (407) 841-2133 E-mail: lroth@rumberger.com mbegey@rumberger.com WHITNEY BANK: Cy Pres Distribution of Funds Has Court Approval -------------------------------------------------------------- District Judge Virginia M. Hernandez Covington granted a joint motion for approval of cy pres distribution of settlement funds in ANGELIQUE LACOUR, Plaintiff, v. WHITNEY BANK, Defendant, CASE NO. 8:11-CV-1896-T-33MAP, (M.D. Fla.). On October 23, 2012, the Court granted final approval of the settlement agreement in this case. The settlement included a common fund of $6,800,000 to be used to pay all distributions to settlement class members who did not opt out, as well as a service award to the named Plaintiff, and attorney fees and expenses to class counsel. The settlement agreement provided that if there are funds remaining after distributions have been made to settlement class members, the remainder may be distributed through a cy pres program. The settlement agreement further provides that "[t]he residual cy pres recipient shall be agreed upon by Whitney Bank and class counsel, and approved by the Court." The parties informed the Court that $799,370.26 remains in the settlement fund, and seek Court approval for distribution of the fund to these cy pres recipients: (1) United Way of Southeast Louisiana, allocation: $591,374.12; (2) United Way of Southwest Alabama, allocation: $70,344.58; (3) United Way of Okaloosa and Walton Counties, allocation: $70,104.77; (4) Mississippi Center for Justice, allocation: $41,327.44; and (5) United Way of Greater Houston, allocation: $26,219.35. Judge Covington granted the request and directed the parties to effect the cy pres distribution in the amounts and to the recipients identified within 30 days of the date of the Court's Order. A copy of the District Court's January 10, 2014 Order is available at http://is.gd/5hhkcCfrom Leagle.com. WORDEN LAW: "Seyerle" Suit Accuses FDCPA Violations --------------------------------------------------- Shirley Seyerle, on behalf of herself and all others similarly situated v. Worden Law Office, Case No. 1:14-cv-00082-WYD-MJW (D. Colo., January 10, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Michael Lewis Greenwald, Esq. GREENWALD DAVIDSON, PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431-7277 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 E-mail: mgreenwald@mgjdlaw.com * Overtime Class Actions Move Forward in Canada in 2013 ------------------------------------------------------- Dylan Snowdon, Esq. -- dsnowdon@mccarthy.ca -- at McCarthy Tetrault reports that Canadian employers continue to watch as class actions regarding employees' claims for "overtime" compensation move forward. Although overtime class actions are relatively new to Canada, 2013 saw developments in the area. Ontario's Court of Appeal allowed the certification in two cases in 2012 (Fulawka and Fresco); and on March 21, 2013 the Supreme Court of Canada denied leave to appeal those decisions; meaning those class action claims may now proceed towards trial. The Ontario Court of Appeal granted leave to appeal a Superior Court's decision to deny certification in the Brown v. CIBC overtime claim, which could lead to certification being granted in 2014. And in August 2013 the Ontario Superior Court granted certification in the Brown v. CIBC overtime claim; a decision that was confirmed when the Ontario Divisional Court denied leave to appeal that certification. On November 8, 2013 another overtime class action suit was filed; this one against Canada Cartage (a trucking company) and its related companies. Similar to the Fulawka and Fresco claims, the Plaintiff is claiming improperly compensated overtime in addition to other claims related to hours and pay. The Plaintiff in this action is expected to bring a certification application in the near future. While certification is a key step in any class proceeding, the actual merits of each claim have not yet been tested, nor has the value of any overtime claim been established. Asbestos Litigation ASBESTOS UPDATE: Ramsey Excavating Faces Fine Over Fibro Materials ------------------------------------------------------------------ Paul Walsh, writing for The Star Tribune, reports that a Minneapolis demolition company has paid a fine for sending clouds of dust into nearby businesses during the razing of a late-1800s Warehouse District commercial building that the excavators knew contained asbestos. The Minnesota Pollution Control Agency (MPCA) on Jan. 28 announced payment of a $10,000 penalty by Ramsey Excavating for using improper procedures in the spring of 2013 to remove and contain the asbestos-holding materials while tearing down the 119-year-old building at N. 643 5th St., down the street from Target Field. Al Ramsey, president of the 15-year-old company, pointed out on Jan. 29 that "it was not confirmed" that the dust actually contained asbestos. "The only thing that caused the fine was the visible emissions," Ramsey added. During an inspection on April 29 at the three-story site where Northern Auto Parts had operated until 2009, according to the MPCA, agency staff saw dust being generated during demolition coming from one area of the building and blowing into the adjoining street and neighboring businesses. Prior to demolition to make way for high-density housing, Ramsey Excavating told the MPCA that asbestos-containing materials -- such as pipe and boiler insulation -- were in that area of the building. Asbestos has long been known to be a carcinogen, in particular causing mesothelioma, a deadly cancer of the lung lining. The contractor was spraying water on to the debris with a single fire hose, but that was inadequate in preventing the dust from blowing away from the site, the MPCA said. Agency staff also saw that a pile of debris that included asbestos-containing materials was not being processed for disposal in a timely manner. That pile had lingered for four days, the agency said. In addition to paying the fine, Ramsey Excavating also agreed to use proper containment practices in the future and to manage asbestos-containing materials and debris in a timely manner. Ramsey Excavating counts among its projects assisting with construction of Target Field, which opened in 2010. ASBESTOS UPDATE: Lung Cancer Cases Rise in Fibro Litigation ----------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reports that lung cancer cases are on the rise in asbestos litigation, and one law professor says the incentive for plaintiffs attorneys is to obtain money from bankruptcy trusts set up to pay out claimants. Lester Brickman, professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University, said the 60-plus asbestos trusts, operating a system of more than $36 billion, will pay claimants who can get a doctor to prove they have asbestos damage to the linings of the lungs even if they had or have a smoking habit. "What's happened is the trusts are paying a claimant, a smoker, who can show occupational exposure to asbestos and can get a doctor to say the lungs indicate occupational exposure," Mr. Brickman said. Mr. Brickman said claimants don't just apply to one trust. They get money from 15 to 20 trusts, and their attorneys make money in the process. "They can get as much as $100,000 dollars in total from these trusts," Mr. Brickman said. "Even if you don't bring any lawsuits, you can get $100,000 for an unimpaired asbestos exposure," he said. With asbestos trusts paying out, claimants can also file a tort claim. Those lung cancer asbestos cases could always result in settlements, Mr. Brickman pointed out. "The number of lung cancer filings in the tort system based upon asbestos exposure has no relationship to medical science," Mr. Brickman said. "It's entirely a function of the economic incentive for asbestos lawyers to file suits. "So the trust payments are providing the seed money for the lawyers to gain recruitments." Mr. Brickman said lung cancer asbestos claims originated as part of litigation screenings during the 1980s and 1990s. Lawyers would sponsor these screenings by sending fully equipped medical vans to factory parking lots where unions would allow members to receive free x-ray screenings, he says. He added that most of the readings attributing lung damage to asbestos from those x-rays were bogus, though they generated about 500,000 claims of non- malignant disease. Somewhere between four and 12 percent of the screenings alleging asbestos-related injuries were true, he says. "Because the x-rays could show lung cancer," Mr. Brickman said, "that generated lung cancer cases." Those lung cancer cases dropped after the screenings ended in the early 2000s. However, Mr. Brickman said lung cancer lawsuits have increased significantly recently. One such lawsuit is Carolyn McCarthy's. A nine-term Congresswoman, Ms. McCarthy took a leave of absence from Congress while she fights her lung cancer. In her asbestos complaint, filed in October, she claims she was exposed to asbestos fibers through her father's and brother's work clothing when she was a child, also known as third-party exposure. She also claims to have visited the two at their various work sites over the years. Both worked as boiler makers. Third-party asbestos occurs after workers exposed to asbestos unwittingly wear their work clothing home and embed the toxic fibers into their cars. Their families are then exposed to the fibers through their clothing and their cars. While this type of exposure has been proven before in previous cases, Brickman said the basis of Ms. McCarthy's claim is that she has found a doctor to determine that she has medical evidence to asbestos exposure through scarring in the lungs. Mr. Brickman says that while it is possible to develop lung cancer from asbestos, approximately 90 percent of lung cancer is caused by smoking. Ms. McCarthy, represented by the Weitz and Luxenburg law firm, filed her lawsuit against roughly 75 defendants. Of those defendants, 25 have answered the lawsuit. The defendants allege that Ms. McCarthy may have "significant" pre-existing conditions factoring into her illness, specifically McCarthy's lung cancer is the result of "other substances, products, medications, and drugs, including by not limited to any tobacco products." The defendants also argued that Ms. McCarthy's injuries, if any, should be exclusively remedied with the Workers' Compensation laws in New York, and the lawsuit should not continue without involving the various bankruptcy trusts. They claim Ms. McCarthy did not work with the asbestos-containing products and was therefore not exposed to the hazards to incur damages. "Plaintiff never purchased, directly or indirectly, any asbestos- containing product or materials from Viking Pump, nor did Plaintiff ever receive or rely upon any representation allegedly made by Viking Pump.," one answer says. Defendant Edison Company of New York, Inc. moved for summary judgment. Justice Sherry Klein Heitler ordered on Nov. 12 that all claims and cross-claims against Edison be dismissed with prejudice. Requests for interviews or statements from Weitz & Luxenburg went unanswered. Third-party asbestos occurs after workers exposed to asbestos unwittingly wear their work clothing home and embed the toxic fibers into their cars. Their families are then exposed to the fibers through their clothing and their cars. While this type of exposure has been proven before in previous cases, Brickman said the basis of Ms. McCarthy's claim is that she has found a doctor to determine that she has medical evidence to asbestos exposure through scarring in the lungs. Mr. Brickman says that while it is possible to develop lung cancer from asbestos, approximately 90 percent of lung cancer is caused by smoking. Ms. McCarthy, represented by the Weitz and Luxenburg law firm, filed her lawsuit against roughly 75 defendants. Of those defendants, 25 have answered the lawsuit. The defendants allege that Ms. McCarthy may have "significant" pre-existing conditions factoring into her illness, specifically McCarthy's lung cancer is the result of "other substances, products, medications, and drugs, including by not limited to any tobacco products." The defendants also argued that Ms. McCarthy's injuries, if any, should be exclusively remedied with the Workers' Compensation laws in New York, and the lawsuit should not continue without involving the various bankruptcy trusts. They claim Ms. McCarthy did not work with the asbestos-containing products and was therefore not exposed to the hazards to incur damages. "Plaintiff never purchased, directly or indirectly, any asbestos- containing product or materials from Viking Pump, nor did Plaintiff ever receive or rely upon any representation allegedly made by Viking Pump.," one answer says. Defendant Edison Company of New York, Inc. moved for summary judgment. Justice Sherry Klein Heitler ordered on Nov. 12 that all claims and cross-claims against Edison be dismissed with prejudice. Requests for interviews or statements from Weitz & Luxenburg went unanswered. ASBESTOS UPDATE: General Cable Has 29,112 PI Cases Pending ---------------------------------------------------------- Approximately 29,112 asbestos-related cases remain pending against General Cable Corporation, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 28, 2013. General Cable Corporation subsidiaries have been named as defendants in lawsuits alleging exposure to asbestos in products manufactured by the Company. As of June 28, 2013, the Company was a defendant in approximately 29,112 cases brought in Federal District Courts throughout the United States. In the six months ended June 28, 2013, 64 asbestos cases were brought against the Company. In the calendar year 2012, 113 asbestos cases were brought against the Company. In the last 21 years, General Cable has had no cases proceed to verdict. In many of the cases, General Cable was dismissed as a defendant before trial for lack of product identification. As of June 28, 2013, 22,354 asbestos cases have been dismissed. In the six months ended June 28, 2013, 486 asbestos cases were dismissed. As of December 31, 2012, 21,868 cases were dismissed. With regards to the approximately 29,112 remaining pending cases, General Cable is aggressively defending these cases based upon either lack of product identification as to General Cable manufactured asbestos-containing product and/or lack of exposure to asbestos dust from the use of General Cable product. For cases outside the Multidistrict Litigation as of June 28, 2013, Plaintiffs have asserted monetary damages in 328 asbestos- related cases. In 187 of these cases, plaintiffs allege only damages in excess of some dollar amount (about $142 thousand per plaintiff); in these cases there are no claims for specific dollar amounts requested as to any defendant. In the 140 other cases pending in state and federal district courts (outside the MDL), plaintiffs seek approximately $418.0 million in damages from as many as 110 defendants. In one case, plaintiffs have asserted damages related to General Cable in the amount of $10.0 million. In addition, in relation to these 328 cases, there are claims of $249.0 million in punitive damages from all of the defendants. However, many of the plaintiffs in these cases allege non- malignant injuries. As of June 28, 2013 and December 31, 2012, the Company had accrued, on a gross basis, approximately $5.1 million and $5.2 million respectively, and as of June 28, 2013 and December 31, 2012, had recovered approximately $0.5 million of insurance recoveries for these lawsuits, respectively. The net amount of $4.6 million and $4.7 million, as of June 28, 2013 and December 31, 2012, respectively, represents the Company's best estimate in order to cover resolution of current and future asbestos-related claims. The components of the asbestos litigation reserve are current and future asbestos-related claims. The significant assumptions are: (1) the number of cases per state, (2) an estimate of the judgment per case per state, (3) an estimate of the percentage of cases per state that would make it to trial and (4) the estimated total liability percentage, excluding insurance recoveries, per case judgment. Management's estimates are based on the Company's historical experience with asbestos related claims. The Company's current history of asbestos claims does not provide sufficient and reasonable information to estimate a range of loss for potential future, unasserted asbestos claims because the number and the value of the alleged damages of such claims have not been consistent. As such, the Company does not believe a reasonably possible range can be estimated with respect to asbestos claims that may be filed in the future. Settlement payments are made, and the asbestos reserve is relieved, when the Company receives a fully executed settlement release from the Plaintiff's counsel. As of June 28, 2013 and June 29, 2012, aggregate settlement costs were $8.7 million and $8.2 million, respectively. For the three months ended June 28, 2013 and June 29, 2012, settlement costs totaled $0.1 million and $0.2 million, respectively. For the six months ended June 28, 2013 and June 29, 2012, settlement costs totaled $0.2 million and $0.3 million, respectively. As of June 28, 2013 and June 29, 2012, aggregate litigation costs were $22.0 million and $20.5 million, respectively. For the three months ended June 28, 2013 and June 29, 2012, litigation costs were $0.3 million and $0.5 million, respectively. For the six months ended June 28, 2013 and June 29, 2012, litigation costs were $0.6 million and $0.8 million, respectively. In January 1994, General Cable entered into a settlement agreement with certain principal primary insurers concerning liability for the costs of defense, judgments and settlements, if any, in all of the asbestos litigation. Subject to the terms and conditions of the settlement agreement, the insurers are responsible for a substantial portion of the costs and expenses incurred in the defense or resolution of this litigation. In recent years one of the insurers participating in the settlement that was responsible for a significant portion of the contribution under the settlement agreement entered into insurance liquidation proceedings. As a result, the contribution of the insurers has been reduced and the Company has had to bear a larger portion of the costs relating to these lawsuits. Moreover, certain of the other insurers may be financially unstable, and if one or more of these insurers enter into insurance liquidation proceedings, General Cable will be required to pay a larger portion of the costs incurred in connection with these cases. General Cable Corporation is a engaged in the development, design, manufacture, marketing and distribution of copper, aluminum and fiber optic wire and cable products for use in the energy, industrial, construction, specialty and communications markets. The Company additionally engages in the design, integration, and installation on a turn-key basis for products, such as high and extra-high voltage terrestrial and submarine systems. The Company operates in three segments: America, Europe and Mediterranean, and Rest of World (ROW). On December 3, 2012, the Company completed the acquisition of the Chinese business of Alcan Cable. On November 2, 2012, the Company acquired Prestolite Wire, LLC. On October 1, 2012, the Company acquired 60% of Productora de Cables Procables S.A.S. On September 4, 2012, the Company completed the acquisition of the North American business of Alcan Cable North America. ASBESTOS UPDATE: Columbus McKinnon Estimates $9.2-Mil Liability --------------------------------------------------------------- Columbus McKinnon Corporation reported an estimated $9,200,000 asbestos-related aggregate liability, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2013. Like many industrial manufacturers, the Company is involved in asbestos-related litigation. In continually evaluating costs relating to its estimated asbestos-related liability, the Company reviews, among other things, the incidence of past and recent claims, the historical case dismissal rate, the mix of the claimed illnesses and occupations of the plaintiffs, its recent and historical resolution of the cases, the number of cases pending against it, the status and results of broad-based settlement discussions, and the number of years such activity might continue. Based on this review, the Company has estimated its share of liability to defend and resolve probable asbestos-related personal injury claims. This estimate is highly uncertain due to the limitations of the available data and the difficulty of forecasting with any certainty the numerous variables that can affect the range of the liability. The Company will continue to study the variables in light of additional information in order to identify trends that may become evident and to assess their impact on the range of liability that is probable and estimable. Based on actuarial information, the Company has estimated its asbestos-related aggregate liability including related legal costs to range between $7,000,000 and $12,000,000 using actuarial parameters of continued claims for a period of 18 to 30 years from December 31, 2013. The Company's estimation of its asbestos- related aggregate liability that is probable and estimable, in accordance with U.S. generally accepted accounting principles approximates $9,200,000, which has been reflected as a liability in the consolidated financial statements as of December 31, 2013. The recorded liability does not consider the impact of any potential favorable federal legislation. This liability will fluctuate based on the uncertainty in the number of future claims that will be filed and the cost to resolve those claims, which may be influenced by a number of factors, including the outcome of the ongoing broad-based settlement negotiations, defensive strategies, and the cost to resolve claims outside the broad-based settlement program. Of this amount, management expects to incur asbestos liability payments of approximately $2,000,000 over the next 12 months. Because payment of the liability is likely to extend over many years, management believes that the potential additional costs for claims will not have a material effect on the financial condition of the Company or its liquidity, although the effect of any future liabilities recorded could be material to earnings in a future period. Columbus McKinnon Corporation is a global designer, manufacturer and marketer of hoists, rigging tools, cranes, actuators, and other material handling products serving a range of commercial and industrial end user markets. The products include a range of electric, lever, hand and air-powered hoists, hoist trolleys, winches, industrial crane systems such as bridge, gantry and jib cranes; alloy and carbon steel chain; closed-die forged attachments, such as hooks, shackles, textile slings, clamps, logging tools and load binders; industrial components, such as mechanical and electromechanical actuators and rotary unions; below-the-hook special purpose lifters; tire shredders; and light- rail systems. The Company is a manufacturer and marketer of hoists, alloy and high strength carbon steel chain and attachments, and actuators in North America. In August 2012, it sold its Gaffey division of Crane Equipment and Service Inc. ASBESTOS UPDATE: H.B. Fuller Settled PI Suits for $6-Mil. --------------------------------------------------------- H.B. Fuller Company has settled asbestos-related lawsuits and claims for $6 million, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended November 30, 2013. The Company states: "From time to time and in the ordinary course of business, we are a party to, or a target of, lawsuits, claims, investigations and proceedings, including product liability, personal injury, contract, patent and intellectual property, environmental, health and safety, tax and employment matters. While we are unable to predict the outcome of these matters, we have concluded, based upon currently available information, that the ultimate resolution of any pending matter, individually or in the aggregate, including the asbestos litigation described in the following paragraphs, will not have a material adverse effect on our results of operations, financial condition or cash flow. We have been named as a defendant in lawsuits in which plaintiffs have alleged injury due to products containing asbestos manufactured more than 30 years ago. The plaintiffs generally bring these lawsuits against multiple defendants and seek damages (both actual and punitive) in very large amounts. In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable injuries or that the injuries suffered were the result of exposure to products manufactured by us. We are typically dismissed as a defendant in such cases without payment. If the plaintiff presents evidence indicating that compensable injury occurred as a result of exposure to our products, the case is generally settled for an amount that reflects the seriousness of the injury, the length, intensity and character of exposure to products containing asbestos, the number and solvency of other defendants in the case, and the jurisdiction in which the case has been brought. A significant portion of the defense costs and settlements in asbestos-related litigation is paid by third parties, including indemnification pursuant to the provisions of a 1976 agreement under which we acquired a business from a third party. Currently, this third party is defending and paying settlement amounts, under a reservation of rights, in most of the asbestos cases tendered to the third party. In addition to the indemnification arrangements with third parties, we have insurance policies that generally provide coverage for asbestos liabilities (including defense costs). Historically, insurers have paid a significant portion of our defense costs and settlements in asbestos-related litigation. However, certain of our insurers are insolvent. We have entered into cost-sharing agreements with our insurers that provide for the allocation of defense costs and under certain circumstances, settlements and judgments, in asbestos-related lawsuits. Under these agreements, we are required under certain circumstances to fund a share of settlements and judgments allocable to years in which the responsible insurer is insolvent. In addition, to delineate our rights under certain insurance policies, in October 2009, we commenced a declaratory judgment action against one of our insurers in the United States District Court for the District of Minnesota. Additional insurers have been brought into the action to address issues related to the scope of their coverage. We recently entered into a settlement agreement with the defendant insurers in this case that provided for the allocation of defense costs and settlements in the future. The allocation under the settlement agreement depends on the outcome of an appeal of two issues to the United States Eighth Circuit Court of Appeals. A summary of the number of and settlement amounts for asbestos- related lawsuits and claims for the year ended November 30, 2013, is as follows: Lawsuits and claims settled: $6 million Settlement amounts: $0.4 million Insurance payments received or expected to be received: $0.3 million We do not believe that it would be meaningful to disclose the aggregate number of asbestos-related lawsuits filed against us because relatively few of these lawsuits are known to involve exposure to asbestos-containing products that we manufactured. Rather, we believe it is more meaningful to disclose the number of lawsuits that are settled and result in a payment to the plaintiff. To the extent we can reasonably estimate the amount of our probable liabilities for pending asbestos-related claims, we establish a financial provision and a corresponding receivable for insurance recoveries. Based on currently available information, we have concluded that the resolution of any pending matter, including asbestos-related litigation, individually or in the aggregate, will not have a material adverse effect on our results of operations, financial condition or cash flow. However, adverse developments and/or periodic settlements could negatively impact the results of operations or cash flows in one or more future periods." H.B. Fuller Company is formulator, manufacturer and marketer of adhesives, sealants and other specialty chemical products. The Company operates in five segments: North America Adhesives, Construction Products, Europe, India, Middle East and Africa (EIMEA), Latin America Adhesives and Asia Pacific. Sales operations span 40 countries in North America, Europe, Latin America, the Asia Pacific region, India, the Middle East and Africa. Industrial adhesives represent the Company's core product offering. The Company also provides its customers with technical support and solutions designed to address their specific needs. The Company has a variety of product offerings for residential construction markets, such as tile-setting adhesives, grouts, sealants and related products. These products are sold primarily in the Company's Construction Products operating segment. In June 2013, HB Fuller Co announced that it has finalized the purchase of Plexbond Quimica S/A. ASBESTOS UPDATE: H.B. Fuller Recognized $3.2MM Fibro-related ARO ---------------------------------------------------------------- H.B. Fuller Company recognized an asset retirement obligation liability of $3,236,000 at November 30, 2013, related to special handling of asbestos related materials in certain facilities, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended November 30, 2013. The Company states: "We recognize asset retirement obligations (AROs) in the period in which we have an existing legal obligation associated with the retirement of a tangible long-lived asset, and the amount can be reasonably estimated. The ARO is recognized at fair value when the liability is incurred. Upon initial recognition of a liability, that cost is capitalized as part of the related long-lived asset and depreciated on a straight-line basis over the remaining estimated useful life of the related asset. We have recognized a liability related to special handling of asbestos related materials in certain facilities for which we have plans or expectation of plans to undertake a major renovation or demolition project that would require the removal of asbestos or have plans or expectation of plans to exit a facility. In addition, we have determined that we have facilities with some level of asbestos that will require abatement action in the future. Once the probability and timeframe of an action are determined, we apply certain assumptions to determine the related liability and asset. These assumptions include the use of inflation rates, the use of credit adjusted risk-free discount rates and the estimation of costs to handle asbestos related materials. The recorded liability is required to be adjusted for changes resulting from the passage of time and/or revisions to the timing or the amount of the original estimate. The asset retirement obligation liability was $3,236,000 and $3,623,000 at November 30, 2013, and December 1, 2012, respectively." H.B. Fuller Company is formulator, manufacturer and marketer of adhesives, sealants and other specialty chemical products. The Company operates in five segments: North America Adhesives, Construction Products, Europe, India, Middle East and Africa (EIMEA), Latin America Adhesives and Asia Pacific. Sales operations span 40 countries in North America, Europe, Latin America, the Asia Pacific region, India, the Middle East and Africa. Industrial adhesives represent the Company's core product offering. The Company also provides its customers with technical support and solutions designed to address their specific needs. The Company has a variety of product offerings for residential construction markets, such as tile-setting adhesives, grouts, sealants and related products. These products are sold primarily in the Company's Construction Products operating segment. In June 2013, HB Fuller Co announced that it has finalized the purchase of Plexbond Quimica S/A. ASBESTOS UPDATE: Cleanup Set to Begin at Former Citadel Plaza Site ------------------------------------------------------------------ Lynn Horsley, writing for The Kansas City Star, reported that the long-awaited cleanup of the failed Citadel Plaza development site near 63rd Street and Prospect Avenue is finally set to begin, at least in a small way. Kansas City officials said test pit activity will begin and continue for two to three weeks. It will take place on four to six lots out of the 68 vacant lots identified for possible buried asbestos. If contamination is found, it will be properly disposed of, they said. Results of those tests will set the stage for a full environmental cleanup on the site later this year, said Andrew Bracker, the city's brownfields coordinator. A brownfield is an area contaminated by industrial or commercial use. "It is the start," Bracker said of the process to address any buried asbestos at the former development site -- encompassing seven blocks -- so the city can try to market the location for another developer. Citadel Plaza was envisioned as an $80 million, 35-acre shopping center with a grocery store, restaurants, other retailers and housing. But the developer, CDC-KC, failed to properly monitor asbestos removal before some homes were torn down in 2006, and the project collapsed in a mess of environmental and financial conflicts. In November 2011, the Kansas City Council approved a $15 million settlement to resolve lawsuits involving the development's creditors. That settlement, made final in January 2012, gave the city clear title to the land and freed the site for development. But first the city has to make sure there is no more asbestos contamination, and that process has taken much longer than expected. Consultants have taken samples from 154 properties and found only one parcel with detectible asbestos fibers in the soil surface. Subsoil contamination has been harder to determine. Bracker said considerable research on more than 200 lots ruled out contamination on all but 68 vacant lots. The city had hoped to issue a cleanup contract in 2013, but that level of continuing uncertainty about the 68 lots could lead to expensive bids, Bracker said. So the city decided to proceed more slowly and do the test pits. Even getting that contract in place took longer than expected. "We have not met our expectations with respect to the pace" of cleanup, Bracker acknowledged. The city has a $500,000 federal grant for cleanup and some bond funds available, but Bracker said the city wants to conserve as much money as possible for work needed before development begins. The test pits are in the 6100 blocks of Park Avenue and Olive Street. Bracker said the contractor will monitor air quality before and during the activity and will take necessary precautions to make sure no asbestos escapes into the air. Nearby residents will not be at risk and will have access to their homes. Bracker said it should take 45 days to get and interpret the test pit results, and that will pave the way for a more complete cleanup, which he hopes can occur by this summer. The city also commissioned a market study about potential development opportunities for the site, but the report released in May 2013 wasn't overly encouraging. It saw no potential for a convenience/neighborhood-oriented shopping center, noting there are other struggling shopping complexes nearby. The consultant's report recommended trying to attract four or five regional traffic generators such as a Menards, Ross Dress for Less, Target and Michaels. City officials have said they intend to market the site aggressively, but that won't until the cleanup is complete. ASBESTOS UPDATE: Fibro Delays Rebuilding of S. Coffman St Complex ----------------------------------------------------------------- Scott Rochat, writing for Longmont Times-Call, reported that the burned-out apartment complex at 1322 S. Coffman St., in Longmont, Colorado, will be rebuilt this year. But not quickly. Owner Jon Bopp of Boulder said it will likely be the end of August before the six-unit building is back in shape and ready to rent. The holdup? Asbestos. "The whole thing has to be taken down, abated and hauled off," said Bopp, who bought the building in 2002. The Nov. 21 fire started accidentally. According to investigators, the chimney chase -- the structure that a chimney pipe goes through -- had deteriorated in the 40-year-old building, so that it heated and combusted when residents lit their first fire of the winter. The fire triggered an explosion in the attic, after which ceilings began falling and windows bursting. Twenty-five people were displaced by the fire. "I feel bad for the tenants," Bopp said. "They couldn't take anything out. All their possessions had to be taken to the landfill because of the asbestos. It was tough on them, tough on me -- we were all hurt in this disaster." Asbestos removal tends to be a slow process anyway, given the amount of paperwork and care involved. But that's even more true for the South Coffman Street building. Since fire burned through the roof, it's more difficult to make sure that the work is properly sealed off. Any wind over 10 mph means the removal has to stop until the air calms. If particulates escape, the work has to stop until the source is found and choked off. Depending on how long it takes to go through the state's process, it might be March before the big trucks with their big plastic envelopes arrive to begin work. Even that's a guess, Bopp said. Once the old building is down, he said, he'll try for a more contemporary look on its replacement, or as much as the insurance money allows. Starting over means a chance for newer carpet, newer fixtures and the like. He'd been planning to do some remodeling anyway, he said, but events forced his hand. "The neighborhood needs to be improved," he said. "I don't know if this'll do a big amount of improvement, but it'll help." ASBESTOS UPDATE: Suspected Fibro Left Behind After Telstra Cleanup ------------------------------------------------------------------ William Kulich, writing for The Warragul Citizen, reported that Louis Nelson from Warragul, in Victoria, Australia, noticed several pieces of the material sitting on the cover of an inspection pit outside his house and down the street, but it wasn't until late the next day that the street was properly cleaned up. "I almost recoiled on the spot as if I saw a snake on the ground. It's as if some kids have come along and lifted up the lid for a look, and the asbestos pit lining has been broken up," Mr Nelson told The Warragul Citizen. "The lid [was] mostly put back in place, but the broken pieces are just sitting on top of it, right next to the footpath. I reported it immediately to Telstra's helpline, who seemed to take the issue seriously." A technician reached the pit this morning and Mr Nelson was told the job was finished, but some material had been left behind. "The lid had been put properly back into place and most of the asbestos gone, however there was still a little piece left on top of the lid," he said. "I don't know what actually happened there or how they dealt with it, but they didn't clean it up. "They didn't even call me as requested about the other pieces down the street." A second technician was sent this afternoon and Mr Nelson said he is now happy with the clean up but has expressed concern about how the incident was managed. "It's clear protocols aren't being followed here and it seems to me that there isn't the level of seriousness in dealing with asbestos in public areas which is required and called for by this dangerous substance." A Telstra spokesperson told The Warragul Citizen the company was taking the incident seriously. "We take these matters very seriously, especially in regards to public safety," the spokesperson said. "We have since had a second technician attend the site who has removed some material and spoken to the local resident who initially called us (Mr Nelson). "We are testing some material that was on top of a pit lid to determine its composition. "We are urgently continuing to look into the matter." Asbestos is a fine fibrous material which when inhaled can become embedded in lung tissue. The possible health side-effects of inhalation, which include asbestosis, lung cancer, mesothelioma and pleural disease, occur up to 30 years after the substances enters the lung. These diseases often lead to death. Mr Nelson has taken the incident as a chance to push for improved education about the risks and prevalence of asbestos. "It seems harmless enough at the time, but 30 years down the track you could be on your way to dying a horrible death," Mr Nelson said. "Grown adults have no idea how prevalent this stuff is in our houses and in our drainage and just about all public infrastructure, it's everywhere. "At a garage sale late last year in Warragul one bloke had a long bit of pipe for sale in his front yard, and it was clearly asbestos piping, and he was telling me he was trying to make a pizza oven flu out of it." Houses constructed between 1945 and 1980 usually contained large amounts of asbestos, which was used as an insulator. Asbestos was banned as a building material in 1989, and was only completely banned from all new uses a decade ago. Asbestos is still common, and statistics from the Australian Government's National Health and Medical Research Council suggest a majority of public buildings and around one third of private dwellings built in the peak period of asbestos usage contain asbestos in concrete, cement sheeting, pipes and insulation and elsewhere. Much of the older housing in regional Victoria was built in that period. A number of older Telstra inspection pits are lined with asbestos. "They talk about the third wave of asbestos victims now being home renovators. I've driven down the street and seen people ripping apart their awnings and any home that was built from the 1940s to 60s and onwards more than likely has asbestos in those awnings," Mr Nelson said. "There should be education about this stuff from the earliest possible point where kids can comprehend something like this. There should be just as much emphasis on asbestos education as there is for the harms of smoking." ASBESTOS UPDATE: Large Amount of Fibro Found After Fire in Petone ----------------------------------------------------------------- The New Zealand Herald reported that a large amount of asbestos has been discovered in an abandoned school which caught fire evening of Jan. 20 but the Fire Service says nearby residents are in no danger. Fifteen fire engines battled the blaze for about two hours after flames engulfed a hall at the former Petone Technical College campus. The roof and external cladding were seriously damaged in the blaze, senior station officer Rob Sullivan said. The ceiling had asbestos through it, but calm weather lessened the risk of the dangerous substance being blown from the scene. "All the fibres are kept wet, which is literally the fix-it . . . you keep it all wet and that stops any fibres from becoming airborne," he said. Rain was a huge help in containing the asbestos. The school had been targeted before by arsonists and the fire was being treated as suspicious. Police and fire investigators were due back to determine its cause. "But we've got a pretty good idea that it's not kosher," he said. The building is expected to be demolished. ASBESTOS UPDATE: Upholsterers Exposed to Deadly Dust For 5 Years ---------------------------------------------------------------- Jason Nicholls, writing for Safety Sign Supplies, reported that a firm in Rochdale, Manchester, England, has been fined after a Health and Safety Executive (HSE) inspection discovered it had been exposing its employees to potentially-fatal asbestos for five years. Mansfield Soft Furnishings Ltd, a furniture re-upholstery business, had moved into a storage space in September 2007. The roof of this space contained asbestos, and moving furniture in the area would have thrown up clouds of dust containing fibres of the hazardous chemical. A HSE inspector visited the site in June 2012, noting what looked like asbestos in the roof and that the company had not had an asbestos survey carried out. A survey was ordered that discovered large amounts of the material. The HSE banned access to the building until the asbestos could be removed, but the company director David Mansfield and another employee ignored the warning signs and entered it in order to take some furniture to the client. Mansfield Soft Furnishings pleaded guilty to two breaches of the Health and Safety at Work etc Act 1974, and was fined GBP30,000. Mr Mansfield himself was fined another GBP10,000 for breaching the HSE's prohibition notice by entering the building. The co-defendants were also ordered to pay GBP20,000 costs. ASBESTOS UPDATE: Scientists Nearing Magic Bullet v. Fibro Cancer ---------------------------------------------------------------- ANI News reported that researchers have come closer to finding a cure for Mesothelioma -- a very aggressive cancer associated with asbestos exposure -- usually diagnosed in an advanced stage. In December, the research team of Antonio Giordano, an internationally renowned pathologist, Director and Founder of the Sbarro Health Research Organization in Philadelphia, PA and Professor of Pathology and Oncology at the University of Siena, Italy, published two separate studies aiming to address the urgent need to identify possible new methods for mesothelioma treatment. In the first study, published in the scientific journal Cell Cycle, Giordano's researchers tested on mesothelioma cells the effect of two drugs designed to reactivate the p53 protein, one of the most important 'tumor suppressors', which is turned off in most human cancers. Lead author Francesca Pentimalli of the National Cancer Institute of Naples "In mesothelioma, although p53 is rarely mutated, it is inactivated by alterations in its pathway. Both of the drugs used in the study target p53, but with different mechanisms of action. One in particular, called RITA, proved to be very toxic. Specifically, RITA caused mesothelioma cells, and not 'healthy' cells, to undergo apoptosis - a type of programmed cell death that occurs through the activation of a specific 'cascade' of events. The second study, published online in Cancer Biology and Therapy and led by Paola Indovina of the University of Siena and the Sbarro Institute for Cancer Research and Molecular Medicine, Temple University in Philadelphia, was designed along the same lines as the first study. In the second study, the authors tested, for the first time in mesothelioma, a new drug called MK-1775 in combination with cisplatin. MK-1775 is a selective inhibitor of WEE1, a protein that is crucial in activating a 'checkpoint' for the repair of damaged DNA before the cell starts its division process. ASBESTOS UPDATE: Summary Judgment Bid in Fibro Case Denied ---------------------------------------------------------- HarrisMartin Publishing reported that a Rhode Island court has denied efforts by two hospital defendants to dismiss asbestos claims asserted against them, ruling that until a discovery dispute is resolved, the motion is premature. In the Jan. 15 order, the Rhode Island Superior Court opined that the subject of the discovery dispute -- contracts entered into between the hospitals and contractors -- allegedly detail the use of asbestos, which could potentially support their claims against the premises defendants. The plaintiffs contend that Leonard Lepore was exposed to asbestos while working at the properties of Rhode Island Hospital and Miriam Hospital. ASBESTOS UPDATE: Fibro Claims Help Hospices ------------------------------------------- Halifax Courier reported that hospices in Yorkshire and Humber, in England, have received more than GBP70,000 in the past 12 months, thanks to legal rulings. Asbestos lawyers from Irwin Mitchell's Leeds office have secured the cash as part of their clients' claims. It follows a landmark ruling in a 2010 case led by Irwin Mitchell which found that insurers of a company responsible for the death of a worker from asbestos should contribute to his or her hospice care costs. Lawyers at Irwin Mitchell acting for Jacqueline Prince, whose husband Robert died of the asbestos-related cancer mesothelioma in 2012, secured costs of more than GBP6,000 for the Prince of Wales Hospice in Pontefract, where Robert received care. Jacqueline, 66, said: "This is what Robert would have wanted. He could not have thanked the hospice enough for the support provided to him by the wonderful doctors and nurses." Irwin Mitchell secured GBP32,154 for St Gemma's Hospice in Leeds to cover the care costs of former patients which the firm has represented. Ian Bailey, a partner and industrial illness expert at Irwin Mitchell, said: " In times where fundraising has become more difficult, I am very proud that we have been able to help our clients support the hospices where they received their care at the end of their lives. "Our clients are always very clear that they want to benefit the hospice where they were looked after by excellent carers." Tracey Dick, director of business at St Gemma's Hospice in Leeds, said: "We are extremely grateful to Irwin Mitchell for ensuring that the full costs of the care given by St Gemma's is included in any mesothelioma claim. "All of our care is given free of charge to patients and families but we have to raise the majority of our GBP9 million annual running costs through donations, legacies, fundraising initiatives and our chain of charity shops. "The substantial contribution made through mesothelioma claims is a valuable contribution and ensures St Gemma's can continue caring for local people with terminal illnesses." Other charities to benefit include Dove House, in Hull; Wheatfields, in Leeds; St Catherine's, in Scarborough; St Leonard's, in York; St Michael's, in Harrogate; and Marie Curie, in Bradford. ASBESTOS UPDATE: WA High Court Set Feb. 13 Hearing in Boeing Case ----------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that Washington's Workers' Compensation law, known as the Industrial Insurance Act, is under fire over a mesothelioma victims' lawsuit alleging The Boeing Company "deliberately intended" to harm him because it knew of the dangers involved with asbestos in the work environment. In the case at hand, claimant Gary Walston worked at The Boeing Company's hammer shop in Seattle from 1956 until 1992, where he fabricated metal airplane parts. While he claims he worked with and around asbestos-containing products throughout his career, there was a time period in 1985 where crews were repairing pipe insulation containing asbestos directly above Walston's work station. The insulation workers wore what Walston's co-workers called "moon suits" for protection, but hammer shop workers continued working without protective clothing or respirators. The hammer shop workers allegedly requested protection but were told to return to work but try to avoid working directly under the overhead repairs as dust and debris fell on the workers below. Walston was diagnosed with mesothelioma in 2010. He and his wife filed suit against his employer. Boeing moved for summary judgment dismissing Walston's claims, arguing employer immunity under the exclusivity provisions of the IIA. The trial court denied Boeing's motion, stating summary judgment should only be granted "if it can be said that there is no genuine issue as to any material fact, that all reasonable persons could reach only one conclusion, and that the moving party is entitled to judgment as a matter of law." The case went to the Court of Appeals, Division II, which reversed the trial court and dismissed Walston's suit against Boeing on Jan. 29, 2013. Walston was granted discretionary review and moved to transfer the case to the Washington Supreme Court. Walston filed a supplemental brief in August arguing employers should be held accountable for deliberate intention when the employee can prove that the defendant knowingly and deliberately forced the plaintiff to "suffer a toxic insult" over the employee's objection, specifically when the parties involved are aware of the potential dangers involved. "Boeing deliberately intended to force Walston to inhale asbestos and to produce lung injuries," the supplemental brief stated, "which is the only way to produce mesothelioma." Walston now seeks to include asymptomatic subcellular changes to the list of compensable injuries, under the idea that an injury can be defined as an employer's knowledge that workers are exposed to harmful substances that could have negative effects on the body. "Since exposure to asbestos was not certain to lead petitioner to develop mesothelioma, petitioner creatively alleges that respondent Boeing's 'toxic insult' was certain to begin an 'invisible injurious process' of 'undetectable' subcellular changes," Walston's brief states. In an amicus brief filed Jan. 10, a group of reformers requests the Washington Supreme Court to reaffirm the strict interpretation of the IIA, specifically in reference to the "deliberate intent" phrase. Among the groups filing the brief are the American Tort Reform Association, the American Insurance Association, the NFIB Small Business Legal Center and the U.S. Chamber of Commerce. Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform. "The IIA created a swift and certain no-fault workers' compensation system for injured employees in exchange for granting employers immunity from lawsuits arising from occupational injuries," the brief stated. "The system reduces costs and fosters predictability. "An expansive interpretation of that IIA's narrow 'deliberate intent' exception would violate the legislative intent embodied in the IIA and lead to litigation that the legislature sought to avoid." However, the amici curiae argue that a manufacturer "has no duty under common law products liability or negligence principles to warn of the dangers of exposure to asbestos in products it did not manufacture and for which the manufacturer was not in the chain of distribution." They say that the 60 trusts, operating a $36.8 billion privately- funded asbestos compensation system, is the proper source for compensation. Furthermore, altering the Workers' Compensation law is not the answer to securing adequate rewards for asbestos- related illnesses, they claim. The group presented the amicus brief questioning whether an employer could be held liable in a tort for "post-exposure asymptomatic subcellular changes that merely reflect an increased risk of disease" if the tort is viewed under a narrow "deliberate intention" to injure exception to the IIA. According to the IIA, disregard of occupational risks is not sufficient to meet the requirements of "deliberate intent" to injure, the group argues. However, in Walston's supplemental brief, he claims that "individual sensitivities to a toxic insult will always render uncertain predicting whether someone will get a disease." The amici argues that the petitioners want compensation for injuries resulting from exposures that were not known to be hazardous at the time, as well as pursuit of an asbestos lawsuit with pain and suffering if they are able to prove fault. "The worker wins in both situations," the brief stated. "What does the employer receive in return? No immunity." The amici argue that petitioners and plaintiffs in asbestos tort cases "seek to erode, if not eviscerate" the IIA's exclusive remedy rule, which could open the floodgates for future "toxic" tort cases against employers Ultimately, the amici implores the court to reverse its order and grant Boeing summary judgment. Boeing satisfied its burden to show that no disputed material facts existed, which shifted the burden to Walston to prove that Boeing had actual knowledge that an injury would occur, they argue. The Washington Supreme Court scheduled a hearing on the issue for Feb. 13, 2014. ASBESTOS UPDATE: Beaumont Fibro Law Firms Donate $45K to Judge -------------------------------------------------------------- David Yates, writing for Legal Newsline, reported that two very well-known law firms in Beaumont, Texas, are pumping tens of thousands of dollars into Judge Donald Floyd's election coffers. Since 1989, Floyd has presided over the 172nd District Court in Beaumont -- the Southeast Texas city that birthed the Provost Umphery and Reaud, Morgan & Quinn law firms. The firms' founders, Walter Umphrey and Wayne Reaud, earned notoriety for their work in asbestos mass torts. Umphrey and Reaud, two of the "Tobacco Five" lawyers, also earned fame by negotiating a multibillion-dollar tobacco settlement for Texas in 1999, which netted $3.3 billion in attorney fees. Floyd's campaign finance reports show that on Nov. 6, the PU firm made a contribution of $15,000. The report further shows Reaud & Associates made a donation of $15,000 on Nov. 14. And almost two weeks later, Reaud, Morgan & Quinn made a separate contribution of $15,000 on Nov. 26. Floyd will face off against Republican challenger Rick Williams. Every year, Floyd presides over civil lawsuits brought by the PU and RMQ law firms. In May 2008, Floyd, at the request of RMQ partner John Morgan, tossed out a jury verdict in favor of chemical giant DuPont without offering an explanation as to why, originally reported by the Southeast Texas Record. The RMQ firm, representing the family of Willis Whisnant Jr., had unsuccessfully asked the jury to award its clients $1 billion in damages, arguing that DuPont maliciously exposed Whisnant to asbestos throughout his refinery career. Since Floyd never clarified his reasons for granting a new trial against DuPont, despite orders by the Texas Supreme Court to do so, people can only speculate on his motives for granting RMQ's motion for new trial. A campaign finance report filed with Texas Ethics Commission shows that on March 6, 2012, Floyd paid $300 to put an ad in The Examiner -- a Beaumont newspaper owned by Reaud. ASBESTOS UPDATE: Insurers Unprepared for 'Third Wave' of Exposure ----------------------------------------------------------------- Phil Gusman, writing for Property Casualty 360, reported that insurers may be underestimating their exposure to a coming "third wave of asbestos liabilities" by relying on outdated assumptions and not accounting for factors such as longer life expectancy and advances in medical knowledge, a research firm says. In a January briefing, Assured Research, a research and analysis firm for insurance and investment professionals, states, "Some insurers have bravely, or naively, reported that the asbestos environment is little changed in recent years. We disagree." The firm argues that an "evolving body of medical literature" combined with shifting societal and media trends point to "a third wave of serious asbestos claims that will likely stain the financial results of insurers for years to come." Assured points out asbestos illnesses have a long latency period that could reach beyond 40 years. With rising life expectancy overall, the firm says people are more likely to live "into their asbestos-induced disease," meaning they will live long enough to discover their illness and then report a claim. Advances in medical research should also concern insurers, the briefing states. It points to studies indicating that the risk of asbestos-induced lung diseases can be heightened not only by long- term occupational exposures, but also by short but intense non- occupational exposures, such as from a home renovation. Furthermore, the briefing cites studies, including one published in the American Journal of Respiratory and Critical Care Medicine, that find a "malignant synergy" between asbestos exposure, asbestosis and smoking. As such, Assured says the typical plaintiff in this third wave may be longtime smokers with non-occupational exposure to asbestos. Assured says, "We believe the third wave will be dominated by lung-cancer claims which are ostensibly lower quality than those of mesothelioma because the cancer was predominantly caused by smoking rather than asbestos." The firm adds, "Nevertheless, large numbers of even lower-quality claims could raise pressure on defendants anxious to settle and minimize nuisance suits." Assured also says the increasing use of high-resolution CT scans, rather than "cloudier X-rays," may increase the diagnosis of asbestosis, and social-media outlets make prospecting for claimants by lawyers easier. Worse for insurers, Assured believes current models used by consulting firms "and most likely insurance companies" rely on assumptions crafted in the mid-1980s and recalibrated once in the later 1990s, and do not account for the new data on medical research and life expectancy. The models, says Assured, generally only account for occupational exposures, for example. Speaking to the need to once again recalibrate models, Assured says, "The result, we expect, would be higher forecasted claims and an explanation for the series of annual 'surprises' that many insurers relay each time they fund rising asbestos payments with yet another 'one-time' annual reserve charge." ASBESTOS UPDATE: Fibro Discovered in Charleston Airport Renovation ------------------------------------------------------------------ Warren L. Wise, writing for The Post and Courier, reported that Charleston International Airport is monitoring air quality in some construction areas of the terminal after asbestos-laced materials were discovered during demolition on two exterior walls. The two areas include the front wall, which is being ripped away to be replaced with glass to allow more light into the building, and behind the outside wall of Concourse A. That area is being expanded to include a new consolidated security checkpoint and upper-floor administrative offices. The 29-year-old terminal is in the throes of a $189 million makeover. Exposure to asbestos has been linked to cancer. "The uncovering of concealed asbestos-containing material is not unusual in a building that is nearly 30 years old and in a construction project of this magnitude," said John Connell, deputy director of engineering and planning for the Charleston County Aviation Authority. Preliminary test results indicate that the glue used to install vapor barriers or waterproofing material when the building was constructed in 1985 contain asbestos materials, the agency said in a statement. "While we were demolishing those areas, we discovered that material," Connell said. "It was concealed behind the walls. We stopped work immediately, had it tested and it was confirmed that it contained asbestos." Airport officials notified the state Department of Health and Environmental Control, which was sending someone to the site for an inspection and advice on remediation. "We will proceed with the appropriate removal," Connell said. The affected areas were already barricaded from the public through temporary construction walls when the materials with asbestos were discovered. "They are not in a public area," Connell said. The discovery is not expected to affect air travelers or visitors to the airport. "We don't expect any impact on the operation of the airport," Connell said. "The airport remains a safe place to work and travel through." Airport spokeswoman Charlene Gunnells said workers and tenants at the airport have already been notified of the asbestos discovery. "The airport is acting swiftly to address this, and we want the traveling public to know that the airport is safe," she said. Before renovations began, the Aviation Authority hired experts to survey and test for any asbestos that might be in the terminal. Testing found limited asbestos-containing materials in the glue under vinyl flooring in a handful of areas in the airport, and it is being removed under state and federal guidelines. Connell did not know if the work stoppage in affected areas will delay construction. "It will add to the cost," Airports Director Paul Campbell said. Efforts will be made to remove the material without disturbing it so it will not become airborne, Campbell said. Terminal expansion and renovation involves adding five new gates, a third baggage carousel, a new rental car pavilion, consolidated security, a dome over the central hall, numerous other structural and cosmetic changes and lots more natural lighting. The project is expected to be completed in August 2015. ASBESTOS UPDATE: Professor Explains Fibro Cases by Smokers ---------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that lung cancer cases are on the rise in asbestos litigation, and one law professor says the incentive for plaintiffs' attorneys is to obtain money from bankruptcy trusts set up to pay out claimants. Lester Brickman, professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University, said the 60-plus asbestos trusts, operating a system of more than $36 billion, will pay claimants who can get a doctor to prove they have asbestos damage to the linings of the lungs even if they had or have a smoking habit. "What's happened is the trusts are paying a claimant, a smoker, who can show occupational exposure to asbestos and can get a doctor to say the lungs indicate occupational exposure," Brickman said. Brickman said claimants don't just apply to one trust. They get money from 15 to 20 trusts, and their attorneys make money in the process. "They can get as much as $100,000 dollars in total from these trusts," Brickman said. "Even if you don't bring any lawsuits, you can get $100,000 for an unimpaired asbestos exposure," he said. With asbestos trusts paying out, claimants can also file a tort claim. Those lung cancer asbestos cases could always result in settlements, Brickman pointed out. "The number of lung cancer filings in the tort system based upon asbestos exposure has no relationship to medical science," Brickman said. "It's entirely a function of the economic incentive for asbestos lawyers to file suits. "So the trust payments are providing the seed money for the lawyers to gain recruitments." Brickman said lung cancer asbestos claims originated as part of litigation screenings during the 1980s and 1990s. Lawyers would sponsor these screenings by sending fully equipped medical vans to factory parking lots where unions would allow members to receive free x-ray screenings, he says. He added that most of the readings attributing lung damage to asbestos from those x-rays were bogus, though they generated about 500,000 claims of non- malignant disease. Somewhere between four and 12 percent of the screenings alleging asbestos-related injuries were true, he says. "Because the x-rays could show lung cancer," Brickman said, "that generated lung cancer cases." Those lung cancer cases dropped after the screenings ended in the early 2000s. However, Brickman said lung cancer lawsuits have increased significantly recently. One such lawsuit is Carolyn McCarthy's. A nine-term Congresswoman, McCarthy took a leave of absence from Congress while she fights her lung cancer. In her asbestos complaint, filed in October, she claims she was exposed to asbestos fibers through her father's and brother's work clothing when she was a child, also known as third-party exposure. She also claims to have visited the two at their various work sites over the years. Both worked as boiler makers. Third-party asbestos occurs after workers exposed to asbestos unwittingly wear their work clothing home and embed the toxic fibers into their cars. Their families are then exposed to the fibers through their clothing and their cars. While this type of exposure has been proven before in previous cases, Brickman said the basis of McCarthy's claim is that she has found a doctor to determine that she has medical evidence to asbestos exposure through scarring in the lungs. Brickman says that while it is possible to develop lung cancer from asbestos, approximately 90 percent of lung cancer is caused by smoking. McCarthy, represented by the Weitz and Luxenburg law firm, filed her lawsuit against roughly 75 defendants. Of those defendants, 25 have answered the lawsuit. The defendants allege that McCarthy may have "significant" pre- existing conditions factoring into her illness, specifically McCarthy's lung cancer is the result of "other substances, products, medications, and drugs, including by not limited to any tobacco products." The defendants also argued that McCarthy's injuries, if any, should be exclusively remedied with the Workers' Compensation laws in New York, and the lawsuit should not continue without involving the various bankruptcy trusts. They claim McCarthy did not work with the asbestos-containing products and was therefore not exposed to the hazards to incur damages. "Plaintiff never purchased, directly or indirectly, any asbestos- containing product or materials from Viking Pump, nor did Plaintiff ever receive or rely upon any representation allegedly made by Viking Pump.," one answer says. Defendant Edison Company of New York, Inc. moved for summary judgment. Justice Sherry Klein Heitler ordered on Nov. 12 that all claims and cross-claims against Edison be dismissed with prejudice. Requests for interviews or statements from Weitz & Luxenburg went unanswered. ASBESTOS UPDATE: Sunderland Electrician Launches Action Over Meso ----------------------------------------------------------------- Sunderland Echo reported that a retired electrician diagnosed with an asbestos-related cancer has launched a legal fight to investigate how he was exposed to the deadly dust. John Teasdale, from Sunderland, was diagnosed with mesothelioma in September after suffering from back pain and breathlessness. Doctors told the 66-year-old it was most likely caused by exposure to asbestos during his career as an electrician. He instructed law firm Irwin Mitchell to investigate where and when he was exposed to the material so he can get what he believes is justice for himself and his family. John began his career as an apprentice at G.V. Cummins Ltd in 1962 and until 1970 carried out work at boiler houses in pubs and clubs across Sunderland. He later worked for firms Sunderland Forge and Campbell & Isherwood where he worked on projects such as shipyards, hospitals and schools between 1970 and 1972 and 1979 around Sunderland, Newcastle and Darlington. Father-of-two John, who is undergoing chemotherapy treatment, said: "I spent a lot of my professional career putting cabling in service ducts and ceiling spaces where the pipework or boilers were lagged with asbestos which I had no choice but to breathe in on a daily basis as I had no protective clothing. "It was a big shock to me when I was diagnosed with mesothelioma and it has left myself and my family devastated as to what the future holds for me. "As a tradesman, I was never warned about asbestos and the potential health risk it causes, so it never crossed my mind that it would be a problem all these years later. "I was looking forward to a long and happy retirement after working hard all of my life." Roger Maddocks, partner and an expert asbestos lawyer at Irwin Mitchell, said: "While the dangers of asbestos have been well known for decades, many companies and employers failed to take the necessary action to protect both their workers and the local community from the material. "John worked as an electrician for many years and it is known that during the 1970s many workers in the 'trades' worked closely together so it is likely he was exposed to asbestos while plumbers lagged pipes close by. "Unfortunately many employers failed to give their workers the necessary protective clothing such as face masks to stop them breathing in the dangerous dust." Any of John's former colleagues can contact the solicitors on 279 0091 or emailed via roger.maddocks@irwinmitchell.com. A Government compensation scheme for those exposed to asbestos began in 1979 and most claims are on policies dating back to the 1960s and 1970s. ASBESTOS UPDATE: Prior Fibro Problems in Jacksonville, Fla. ----------------------------------------------------------- Catherine Varnum, writing for ActionNewsJax, reported that new documents from Jacksonville, Florida, are giving insight into a possible asbestos problem. Neighbors in Springfield have big concerns after capturing pictures of recent demolitions in their neighborhoods. Action News spoke to them, revealing the potential improper removal of dangerous asbestos. It's an issue city leaders are now investigating. While the city doesn't know yet if that did happen in Springfield, Action News found there has been a communication breakdown in the two city departments that are supposed to protect you from asbestos. Now, new documents given show the problem goes beyond Springfield. One shows a citation from 2011, complete with pictures before and after demolition of the King Dragon Chinese restaurant in Arlington. The violations included, failure of one city department to notify the other about the demolition The 2011 citation also noted not having a trained asbestos representative on site during the removal. There was even a notice about asbestos demolition. With the problems in the past and a new investigation being done, the question still to be answered is did city demolitions put neighbors at risk of a dangerous cancer causing material. Some say yes. ASBESTOS UPDATE: Fibro Discovery Closes Rooms at Halesowen School ----------------------------------------------------------------- Express & Star reported that health and safety experts sealed off the section of a teaching block at Earls High School, in Halesowen, after finding the small amount of contamination in 10ft of cast iron pipe. The asbestos was discovered following a leak in the school's heating supply. The school was shut for two days to all pupils while the heating was repaired. Three drama classrooms and a girls' toilet near the asbestos remain closed off as work is carried out to remove it. Vice-principal Rob Kew said he hoped the contamination will be removed and for the classrooms to reopened the week following removal. He said: "The safety of our students and staff is our priority and we have worked very closely with health and safety experts to ensure it. "All necessary steps to protect their safety have been followed and every action taken. "Asbestos is found in any building built before the 1950s." Asbestos is not dangerous unless it is disturbed and fibres become airborne. The Health and Safety Executive and a health and safety team from Dudley Council have assisted the school. ASBESTOS UPDATE: Fibro Removal at City Hall Nearly Completed ------------------------------------------------------------ Mike Sprague, writing for Whittier Daily News, reported that until recently, the city was under impression that all the asbestos in the old City Hall, in La Habra Heights, California, was removed, then a layer of it was found under the roof. So, a second round of removal is taking place and is scheduled to finished, according to the project manager for the firm hired to remove it. Once the cleanup is completed, it will allow crews for Cal-City Construction of Cerritos to get back on the job for the renovation project. Work was delayed about two weeks when asbestos was found in the lower portions in roofs of two of the buildings at City Hall. The removal is expected to cost an estimated $60,000, although that figure could be lower, said Dave Nichols, the city's public works manager. The work began on Jan. 15 after their plan was approved by the South Coast Air Quality Management District. Workers from Paramount-based Resource Environmental were removing pieces of roof that also contain asbestos. The materials go into double-lined bags that are then placed in a large bin. It will be shipped to Azusa Reclamation, said Ernie Valdez, project manager for the company. "We're pulling it up layer by layer and bagging it," Valdez said. "It's double-bagged and goes into the bin." The workers wear protective gear with respirators. They also have personal monitors to determine the air they're breathing. The two roofs also are sealed up with plastic tarps. There also are four pumps to check for air quality, said David Tillema, senior project manager for Laguna Niguel-based Pacific Environmental. "It's mimicking what we breathe over an eight-hour period," Tillema said. "The workers have personal pumps. It goes over their shoulder and breathes what they breath. It tells us how much exposure they're getting." Asbestos can cause cancer. So far, the level of fibers from asbestos is lower than you would find naturally occurring in downtown Los Angeles, Tillema said. The project has raised concerns among some La Habra Heights activists. Complaints were made to AQMD, which has sent inspectors on a nearly daily basis to the work site. AQMD officials in December found no asbestos on the site following removal of it from the floor and boiler area. But in January, it was determined there was asbestos in the lower portions of the roof that needed to be removed. George Edwards, who has sued the city to stop the project, said the AQMD investigation was faulty. Edwards said he was concerned about the safety of children at the nearby Heights Christian Preschool. But Mohsen Nazeni, deputy executive officer for AQMD, said Edwards doesn't understand his agency's role. "I don't know if he has a good grasp of what this agency does," Nazeni said. AQMD's job is to make sure that the asbestos removal project is being done safely. "It's not our job to inspect facility to find where asbestos is," he said. "If you don't remove asbestos and leave it in place, there is no danger. It's only dangerous when you start stir up the material that could get in the air." Nazeni said AQMD has requirements, which Resource Environmental appears to be meeting. "The contractor that is doing this work is not fly-by-night," he said. "We've had experience with this contractor and we don't think they try to cut corners." ASBESTOS UPDATE: Ohio Jury Awards $27MM Verdict to Cancer Victim ---------------------------------------------------------------- The Associated Press reported that a jury in Ohio has awarded a Cleveland-area man suffering from asbestos-related cancer a $27.5 million verdict. The man's attorney tells The Plain Dealer that it's the largest award of its kind in Ohio. John Panza was diagnosed in 2012 with what is usually a fatal form of lung cancer. The 40-year-old Panza got cancer after being exposed to asbestos dust on the clothes of his father, who worked at a plant that made brakes. The December verdict means that Livonia, Mich.-based Kelsey-Hayes Co. is responsible for the $27.5 million award to Panza and his wife. The company is the successor to the firm that made the asbestos brake pads. A message seeking comment was left with the company's attorneys. The Plain Dealer reports an appeal is likely. ASBESTOS UPDATE: Selah Grocery Closes Due to Fibro Concerns ----------------------------------------------------------- Yakima Herald-Republic reported that a local grocery store in Selah, Washington, has been closed because asbestos was detected in the building, authorities said. Save-On-Foods was undergoing a renovation but did not conduct the asbestos test required by the Yakima Regional Clean Air Agency, said agency spokesman Dave Caprile. Exposure to asbestos can lead to various health issues including lung inflammation and cancer. The agency received complaints, which led the store, at 800 N. Park Centre, to shut down to allow an independent agency to conduct a test, Caprile said. The test found there were minimum amounts of asbestos present. The store has remained closed while the site is cleaned up and could reopen once a test verifies that there is no longer any asbestos in the building, Caprile said. The store is likely to receive a notice of violation for not following procedures, he said. ASBESTOS UPDATE: Deadly Dust Find Sparks OHS Probe -------------------------------------------------- Siteri Sauvakacolo, writing for The Fiji Times Online, reported that the New Zealand national Occupational Health and Safety team is investigating the discovery of asbestos materials on the ceiling of the Nasinu Secondary School boys' dormitory. In a statement, Minister for Labour, Industrial Relations and Employment Jone Usamate said: "OHS inspectors had been assigned to hold discussions with the school management and relevant authorities and obtain samples to confirm whether it is asbestos and investigate for proper removal and disposal upon confirmation of asbestos." "The National OHS Service liaises with the Ministry of Education in all matters related to OHS in schools and only intervenes in immediate threat situations. "In the case of Nasinu Secondary School, we will provide all necessary assistance to the Ministry of Education and the school OHS Committee to ensure that the identified OHS issues are addressed appropriately," Mr Usamate said. ASBESTOS UPDATE: Enhanced Regulations for Fibro Work Introduced --------------------------------------------------------------- Vimita Mohandras, writing for Channel News Asia, reported that the Workplace Safety and Health (WSH) Council and the Ministry of Manpower in Singapore have announced enhanced regulations for work involving asbestos, a substance that could potentially cause lung cancer. Many older buildings, especially those built before 1990, may have asbestos-containing materials. These include corrugated roofs, ceiling boards and partition walls. The new WSH (Asbestos) Regulations will replace the existing Factories (Asbestos) Regulations and take effect from May 1. The new regulations come after three rounds of public consultations conducted last year. Under the new regulations, an expert must be appointed to ascertain if asbestos-containing materials are present before starting demolition or renovation works on buildings built before 1 January 1991. If asbestos is present, it must be removed before demolition can commence. The removal can only be carried out by an approved asbestos removal contractor, under proper supervision. "This will ensure that workers carry out these work activities under proper management and protection. It will also prevent the release of asbestos fibres into the air which can affect the public," said Senior Minister of State for Health and Manpower Dr Amy Khor. To help the industry comply with the regulations, a new set of WSH guidelines on the management and removal of asbestos has been developed to guide contractors and building owners on the proper management of asbestos-containing materials. In addition, a video has been produced with the aim of educating stakeholders on the health effects of asbestos exposure. The video will illustrate examples of where asbestos can be found and measures to apply in the management and removal process. ASBESTOS UPDATE: W.Va. Court Remands "Davis" Suit to State Court ---------------------------------------------------------------- Judge John T. Copenhaver, Jr., of the U.S. District Court for the Southern District of West Virginia, in Charleston, on Jan. 28, 2014, granted a motion to remand filed by a plaintiff in an asbestos-related personal injury action after the plaintiff dismissed its suit against the defendant who removed the case to the federal court. Accordingly, Judge Copenhaver remanded the case to the Circuit Court of Kanawha County. The case is JOHN EDWARD DAVIS and GLORIA A. DAVIS, Plaintiffs, v. 3M COMPANY and A. W. CHESTERTON COMPANY and AJAX MAGNETHERMIC CORPORATION and AURORA PUMP COMPANY and BUFFALO PUMPS, INC. and CAMERON INTERNATIONAL CORPORATION, formerly known as Cooper Cameron Corporation, and CERTAINTEED CORPORATION and CLEAVER- BROOKS COMPANY, INC. and COLUMBUS McKINNON CORPORATION and CRANE COMPANY and DRAVO CORPORATION and FAIRMONT SUPPLY COMPANY and F.B. WRIGHT COMPANY and FLOWSERVE CORPORATION, formerly known as Durametallic Corporation, and BW IP, INC., other, Burns International Services, formerly known as Byron Jackson Pumps, and FLOWSERVE US, INC., formerly known as Durco International, Inc., and FMC CORPORATION and FOSTER WHEELER ENERGY CORPORATION and GARLOCK, INC. and GENERAL ELECTRIC COMPANY and GEO. V. HAMILTON, INC. and GOULDS PUMPS, INC. and HONEYWELL INTERNATIONAL, formerly known as Allied Signal, formerly known as Allied Corporation, other Bendix Corporation, and HOWDEN-BUFFALO, INC. and I. U. NORTH AMERICA, INC., other, Garp Company, formerly known as The Gage Company, and IMO INDUSTRIES, INC., formerly known as IMO DeLaval, Inc., formerly known as DeLaval Turbine, Inc., DeValco Corporation, and INDUSTRIAL HOLDINGS CORPORATION, formerly known as Carborundum Company, and INGERSOLL-RAND COMPANY and ITT CORPORATION, doing business as Bell & Gossett Pumps, doing business as Kennedy Valves, and J.H. FRANCE REFRACTORIES and LOCKHEED MARTIN CORPORATION, formerly known as Martin Marietta Corporation, and McJUNKIN CORPORATION, now known as McJunkin Redman Corporation, and METROPOLITAN LIFE INSURANCE COMPANY and NAGLE PUMPS, INC. and NITRO INDUSTRIAL COVERINGS, INC. and OHIO VALLEY INSULATING COMPANY, INC. and OWENS-ILLINOIS, INC. and its predecessor in interest, other, Owens-Illinois Glass Co., and PNEUMO ABEX CORPORATION, other, Abex Corporation, and PREMIER REFRACTORIES, INC., formerly known as Adience, Inc., other, Adience Company, LP, other, BMI, Inc., and RAPID AMERICAN CORPORATION, in its own right and as successor in interest to and liable for, other, Philip Carey Corporation, and RILEY POWER INC., formerly known as Riley Stoker Corporation, and ROCKWELL AUTOMATION, INC. and SQUARE D COMPANY and STERLING FLUID SYSTEMS LLC and SUNBEAM PRODUCTS, INC., other, Sunbeam Corporation, and SURFACE COMBUSTION, INC. and SWINDELL DRESSLER INTERNATIONAL COMPANY and TACO, INC. and TASCO INSULATIONS, INC. and UB WEST VIRGINIA, INC., formerly known as Union Boiler Company, and VIACOM, INC., AS SUCCESSOR BY MERGER TO CBS CORPORATION, formerly known as Westinghouse Electric Corporation, and VIKING PUMP, INC. and VIMASCO CORPORATION, Defendants, CIVIL ACTION NO. 2:13-32308 (S.D.W.Va.). A full-text copy of Judge Copenhaver's memorandum opinion and order is available at http://is.gd/KLpcnZfrom Leagle.com. ASBESTOS UPDATE: Time to Perfect Appeal in "Porta" Suit Enlarged ---------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, enlarged to the June 2014 Term the time to perfect appeal in the case IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to PORTA, v. A.O. SMITH WATER PRODUCTS - CRANE CO., MOTION NO. M-6000 (N.Y. App. Div.). A full-text copy of the Court's decision dated Jan. 30, 2014, is available at http://is.gd/xNhUPxfrom Leagle.com. ASBESTOS UPDATE: Time to Perfect Appeal in "D'Andrade" Suit Moved ----------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, enlarged to the June 2014 Term the time to perfect appeal in the case IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to D'ANDRADE v. A.W. CHESTERTON COMPANY - ESTATE OF MISKILL - CRANE CO. - CRANE PUMPS & SYSTEMS, INC., MOTION NO. M- 6002 (N.Y. App. Div.). A full-text copy of the Court's decision dated Jan. 30, 2014, is available at http://is.gd/3pOpK5from Leagle.com. ASBESTOS UPDATE: Discovery Requests in Mich. Criminal Suit Denied ----------------------------------------------------------------- Gerald Essex and Roy Bradley, Sr., are charged with four violations of the Clean Air Act. The charges allege that Essex and Bradley failed to properly handle, remove, and dispose of asbestos-containing material during the renovation of a building now used by the Bay City Academy. Their co-defendant, Rodolpho Rodriguez, is charged with obstructing the investigation into the asbestos-related offenses and lying to the grand jury. Essex and Bradley each filed several motions in limine. Essex filed six motions: (1) motion for a bill of particulars; (2) motion to dismiss indictment; (3) motion for discovery; (4) motion for extension of time to file motions; (5) motion to suppress; and (6) motion to sever. Bradley's four motions are substantially similar and request the same relief as Essex's first four motions. In an order dated Jan. 23, 2014, Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division, among other things, denied Defendant Essex's and Defendant Bradley's motions for Discovery pointing out that the Federal Rules of Criminal Procedure do not require the Government to disclose the information the Defendants seek in their respective motions. Furthermore, Judge Ludington denied without prejudice Defendant Essex's and Defendant Bradley's motions for Extension of Time to File Motions because they do not offer any further explanation of why an extension for filing motions in limine is warranted. Judge Ludington also denied Defendant Essex's and Defendant Bradley's motions for Bill of Particulars after finding that the indictment sets forth the elements of the offense charged and sufficiently apprises both defendants of the charges to enable them to prepare for trial. Each count details the specific actions that the defendants are alleged to have taken in violation of 42 U.S.C. Section 7412(h). The indictment also sets out the names of all indicted co-conspirators, the relevant dates of the violations, the means and methods of the violations, and the location of the violations. Moreover, Judge Ludington denied Defendant Essex's and Defendant Bradley's motions to Dismiss Indictment after concluding that the indictment states the relevant elements and provides sufficient facts of the acts and locations attributed to the Defendants. Furthermore, Judge Ludington denied Defendant Essex's motion to Suppress Statement, holding that the failure to inform Essex that he was a target before he made statements to the grand jury does not mandate the suppression of his statements. The Supreme Court has rejected the argument that the failure to inform a target of a grand jury investigation of his status as such is a constitutional violation, Judge Ludington pointed out, citing United States v. Washington, 431 U.S. 181, 189 (1997). Lastly, Judge Ludington denied in part and granted in part Defendant Essex's motion to Sever. Inasmuch as Essex's motion seeks to completely sever from his Co-Defendants Bradley and Rodriguez, Essex's motion to sever is denied. Essex's motion to sever is granted to prevent a Bruton violation, and therefore the trial will be bifurcated. The proofs concerning Bradley and Essex will be submitted to a jury before proofs concerning Rodriguez are submitted. The case is UNITED STATES, Plaintiff, v. D-1 ROY C. BRADLEY, SR., D-2 GERALD ESSEX, D-3 RODOLFO RODRIGUEZ, Defendants, CASE NO. 13- CR-20622 (E.D. Mich.). A full-text copy of Judge Ludington's Decision is available at http://is.gd/cQLx07from Leagle.com. ASBESTOS UPDATE: Court Finds Company's Insurance Claim Time-Barred ------------------------------------------------------------------ Judge Paul W. Grimm of the U.S. District Court for the District of Maryland, Southern Division, denied AC&R Insulation Co, Inc.'s motion for leave to file a second amended complaint and motion for summary judgment in a lawsuit it filed against Pennsylvania Manufacturers' Association Insurance Co., revolving around two insurance policies -- a primary liability policy and an umbrella policy -- for coverage in lawsuits arising from AC&R's asbestos- containing products. Judge Grimm found that AC&R's claim is time-barred, the evidence on either side contains numerous gaps, and a ruling on the merits would require him to resolve complicated issues of Maryland state insurance law on an incomplete factual record. Accordingly, Judge Grimm declined to opine on the merits of the Plaintiffs' time- barred claims. Judge Grimm added that because the facts presented by both parties at summary judgment may be relevant to whether an amendment is prejudicial or merely conforms the pleadings to the issues that are alive in the case, it was necessary to dispose of summary judgment prior to ruling on the motion to amend. The case is AC&R INSULATION CO., INC., Plaintiff/Counter- Defendant, v. PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO., Defendant/Counter-Plaintiff, CIVIL CASE NO. PWG-12-3528 (D. Md.). A full-text copy of Judge Grimm's Decision dated Jan. 24, 2014, is available at http://is.gd/tAtvQDfrom Leagle.com. ASBESTOS UPDATE: NY Court Denies SLM's Bid to Dismiss "Engle" Suit ------------------------------------------------------------------ Judge Sherry Klein Heitler of the Supreme Court, New York County, issued a decision and order on Jan. 22, 2014, denying Superior Lidgerwood Mundy Corp.'s motion for summary judgment in an asbestos personal injury action styled BETSY ANN ENGLE, as Executrix of the Estate of ROLLAND M. ENGLE, deceased, Plaintiff, v. 3M Company, et al. Defendants, DOCKET NO. 190284/12 (N.Y. Sup.). SLM argues, among other things, that there is no evidence to show that plaintiff's decedent Rolland Engle was exposed to asbestos from a product manufactured, supplied, or sold by M.T. Davidson. SLM further argues that it is not responsible for replacement and component parts used to maintain its valves that were manufactured by third parties. Judge Heitler find that, in light of the testimony presented in the case, there is triable issue whether Mr. Engle worked with and was exposed to Davidson's own asbestos-containing materials. Judge Heitler said the Plaintiffs submitted a slue of documents in the form of interrogatory responses, correspondence, testimony, and Naval records which conclusively demonstrate that the Davidson pumps supplied to the Navy specified and required the use of asbestos components. New York law, Judge Heitler said, is clear that under these circumstances Davidson had a duty to warn of the hazards associated therewith. A full-text copy of Judge Heitler's Decision is available at http://is.gd/3MbEwhfrom Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. 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