/raid1/www/Hosts/bankrupt/CAR_Public/061006.mbx
C L A S S A C T I O N R E P O R T E R
Friday, October 6, 2006, Vol. 8, No. 199
Headlines
AMCOR LTD: Faces Aussie Third-Party Claims for Cartel Practices
CANADA: Court Awards $4.1M to War Veterans in Trust Funds Suit
CORRECTIONS CORP: EEOC Files Job Discrimination Claims in Col.
CROWN ROOFING: Appeal in Suit Over Gas Leak in La. School Denied
DEAN FOODS: Recalls Choco Ice Cream Over Undeclared Almonds
FIRST BANKS: Oct. 26 Hearing Set for Check Cashing Fee Lawsuit
FLORIDA: Substitute Teacher Files Suit Over Retirement Benefits
GUAM: Judge Grants $59M to Govt. Retirees in COLA Increase Suit
HILTON HOTELS: "Resort Fees" Suit Settlement Hearing Set Nov. 14
IDAHO: Seeks Dismissal of Negligence Claim in 2002 Field Burning
INSURANCE COS: N.J. Judge Wants More Data on Policyholders' Suit
LONG ISLAND: High Court Throws Out Suit Over Power Surcharges
LOUISIANA: Residents Mull Suit Against Iberia Parish Sheriff
MAGEE-WOMENS: High Court Rejects Appeal in Medical Results Suit
MCDONALD'S CORP: Faces Suit Over Alleged Labor Abuses in Calif.
MEDIANEWS GROUP: Faces Worker Exploitation Complaints in Calif.
MOHAWK INDUSTRIES: Appeals Court Allows Racketeering Complaints
MONEY FOR LIVING: Federal Ruling Backs Fraud Suit by Investors
NEBRASKA: High Court Junks Challenge to Rural Phone Service Fee
PPG INDUSTRIES: Settles Auto Refinishing Paint Antitrust Suit
PROVIDENCE HEALTH: Settles with Data Theft Victims for $95T
SCOTTISH RE: Ohio A.G. Seeks Lead Plaintiff Appointment for STRS
TARGET CORP: Calif. Judge Rules More Accessibility for Web Sites
TENNESSEE TITLE: Court Says Arbitration is "Unconscionable"
U-HAUL CO: Court Revives Unfair Competition, Consumer Fraud Suit
UNITED STATES: Fla. Immigration Advocates Sue in Federal Court
VERIZON NEW: Contacts Eligible Customers in N.J. Suit Settlement
WAL-MART STORES: Penn. Court Hears Testimonies in Labor Lawsuit
Asbestos Alert
ASBESTOS LITIGATION: Widow Files Suit v. 67 Defendants in W.Va.
ASBESTOS LITIGATION: Va. Contractor Faces $1.25M Possible Fine
ASBESTOS LITIGATION: Appeals Court Orders Coulter Award Reviewed
ASBESTOS LITIGATION: UK Council Awards GBP116T to Teacher's Kin
ASBESTOS LITIGATION: Gov't Reserves AUD500T for Latrobe Research
ASBESTOS LITIGATION: Group Asks Aussie Gov't to Warn Homebuyers
ASBESTOS LITIGATION: Thompsons Disputes Federal-Mogul Payment
ASBESTOS LITIGATION: Gulf South Pipeline Has $2.7M for Abatement
ASBESTOS LITIGATION: South African Victims' Trust Fund Drained
ASBESTOS LITIGATION: French Protesters Demand Nationwide Suit
ASBESTOS LITIGATION: Pipe Cleanup in Colo. Could Lead to Lawsuit
ASBESTOS LITIGATION: ALSTOM Set to Appeal French Court Decision
ASBESTOS LITIGATION: Scottish Gov't Launches Compensation Reform
ASBESTOS LITIGATION: Court Admits Testimony v. DaimlerChrysler
ASBESTOS LITIGATION: Consolidated Container Dismissed in 3 Suits
ASBESTOS LITIGATION: Armstrong World Exits Chapter 11 Bankruptcy
ASBESTOS LITIGATION: Ariz. Plant Ex-Workers at Risk, ATSDR Says
ASBESTOS LITIGATION: Supreme Court Snubs U.S. Steel's Appeal
ASBESTOS LITIGATION: Ill. Central Faces Suit by 12 Ex-Workers
ASBESTOS LITIGATION: Tenn. Court Awards $5M to Former CSX Worker
ASBESTOS LITIGATION: NSW Govt Extends Hardie Deadline to Oct. 31
ASBESTOS LITIGATION: Judge Extends Grace Exclusivity to July '07
ASBESTOS LITIGATION: Eswood Seeks Payment of Claim from USG Corp
ASBESTOS LITIGATION: ASARCO LLC Answers Jury Request Oppositions
ASBESTOS LITIGATION: Judge Grants ASARCO Extension to Jan. 2007
ASBESTOS LITIGATION: RPM Intl. Reports Record Sales in Fiscal 1Q
ASBESTOS LITIGATION: Health Dept. Notes Rise in Removal Breaches
ASBESTOS LITIGATION: Hardie's Deadline Extension Angers Victims
ASBESTOS ALERT: Lake States Industrial to Pay $275T for Breach
New Securities Fraud Cases
CONNECTICS CORP: Howard G. Smith Announces Stock Suit Filing
MEADE INSTRUMENTS: Stull, Stull Announces Securities Suit Filing
*********
AMCOR LTD: Faces Aussie Third-Party Claims for Cartel Practices
---------------------------------------------------------------
Jarra Creek Central Packaging Shed Pty Ltd. filed a class action
claim in Federal Court of Australia in April, alleging cartel
behavior and seeking declarations, injunctions and unspecified
damages against:
-- Amcor Ltd.,
-- Amcor Packaging (Australia) Ltd., and
-- Fibre Containers (Queensland) Pty Ltd.
The information emerged in the company's form 6-k filing with
the U.S. Securities and Exchange Commission for the month of
September 2006.
According to an April 12 issue of the Class Action Reporter, the
Abbotsford, Australia-based company is facing a CA$300 million
class action filed in April in federal court in Sydney on behalf
of about 1,700 businesses.
Plaintiffs in the suit claim to have been damaged by price
fixing and market sharing in the cardboard box industry between
2000 and 2005. Ben Slade at law firm Maurice Blackburn Cashman
estimated that businesses incurred damages of between $2 million
and $3 million as a result of anti-competitive practices in the
industry.
According to a previous report by The Sydney Morning Herald, the
main industries involved in the action include fruit and
vegetable growers, and people in the meat, milk, beer and wine
market.
The Australian Competition and Consumer Commission investigated
the matter. Amcor escaped prosecution after being granted
immunity by the commission in return for information about the
practice.
Amcor Ltd. has filed a cross claim against Visy Industries in
relation to the class action (Class Action Reporter, July 25,
2006).
Maurice Blackburn: http://www.mauriceblackburncashman.com.au/.
CANADA: Court Awards $4.1M to War Veterans in Trust Funds Suit
--------------------------------------------------------------
Justice John H. Brockenshoire of the Ontario Superior Court of
Justice ordered the Canadian government to pay more than $4.1
million towards the legal costs in a veterans' class action
against the federal government.
In finding the government liable for costs, Justice
Brockenshoire refereed to his December 2005 ruling that found
the government liable for $5.2 billion saying, "I have been told
this is the largest assessment of damages ever awarded in
Canada." Interest on that amount is growing at $600 million a
year, he noted.
On Dec. 29, 2005, Mr. Justice John Brokenshire overturned a
previous finding that the Department of Veterans Affairs was not
liable for payment of interest on accounts for which the federal
government had custodial care of monies being held for mentally-
incompetent patients in government-sponsored institutional beds
(Class Action Reporter, Jan. 31, 2006).
The class action, brought against the federal government on
behalf of thousands of veterans, seeks redress for decades of
failure to properly administer the funds of mentally and
physically disabled veterans who had been deemed incapable of
managing their money because of injuries sustained during
wartime service.
In setting out his reasons, Justice Brockenshire said "the facts
of this case, established from the Crown's own documentation
showed a massive breach of fiduciary obligation, extending over
some 70 years, despite repeated warnings, including those of the
Auditor General (in 1986), that what it was doing was wrong."
In April, lawyers for the government and the disabled veterans
appeared before Justice Brockenshire to argue the issue of the
veterans' entitlement to a further payment on account of legal
costs.
Lawyers representing the plaintiffs are H. Peter Sengbusch,
London, Ontario; and Raymond G. Colautti and David G. Greenaway
both of Raphael & Partners, Windsor, Ontario.
CORRECTIONS CORP: EEOC Files Job Discrimination Claims in Col.
--------------------------------------------------------------
The U.S. Equal Employment Opportunity Commission filed a lawsuit
in U.S. District Court for the District of Colorado on behalf of
female employees at a privately run prison near Pueblo over
alleged prison harassment.
Named defendants in the suit are:
-- Corrections Corporation of America, current prison
operator; and
-- Dominion Correctional Services LLC, which ran the prison
until January 2003.
In the suit, two female guards and a female case manager claim
they were "routinely groped, pawed and physically assaulted" by
male managers and male co-workers.
The suit alleges that the three were retaliated against once
they resisted the harassment, subjected to "undesirable and even
dangerous shift assignments, and reduced opportunities for
advancement." The alleged incidents occurred from December 2000
to January 2003.
According to EEOC regional attorney Mary Jo O'Neill, who is
based in Arizona, the EEOC believes that at least 12 other women
were subjected to similar alleged mistreatment.
Dominion Correctional spokeswoman Carolyn Pendoley said she
wasn't aware of the lawsuit and could not comment, The
Associated Press reported.
While Corrections Corp. spokesman Steven Owen said that the
company is still examining the lawsuit, she noted that, "It
looks like a majority of the underlying allegations are before
we owned and operated the facility."
The suit is Equal Employment Opportunity Commission v.
Corrections Corp. of America et al., Case No. 1:06-cv-01956-EWN-
MJW," filed in the U.S. District Court for the District of
Colorado under Judge Edward W. Nottingham with referral to Judge
Michael J. Watanabe.
Representing the plaintiffs are Lynn L. Palma and Nancy A. Weeks
both of the Equal Employment Opportunity Commission-Colorado,
303 East 17th Avenue, #510 Denver, CO 80203, Phone: 303-866-
1374, Fax: 303-866-1375, E-mail: lynn.palma@eeoc.gov or
nancy.weeks@eeoc.gov.
CROWN ROOFING: Appeal in Suit Over Gas Leak in La. School Denied
----------------------------------------------------------------
The Louisiana Supreme Court has denied the appeal against the
certification of a class action filed by teachers and students
at New Iberia Senior High School who were exposed to hazardous
roofing chemical at the school in 2003, The Daily Iberian
reports.
In 2005, State Judge William Hunter certified a class action
against Crown Roofing, Honeywell, Inc. and the Iberia Parish
School Board over the seepage of the chemical Armor Flex into
the school through the air conditioning system and openings in
the roof during a repair work.
Numerous students, teachers and workers reportedly became ill
after inhaling the fumes.
The defendants had appealed the certification of the suit to the
Third Circuit Court of Appeal, and then to the State Supreme
Court. The Supreme Court denied the appeal on Sept. 22. No
trial date has yet been set, according to the report.
The lawsuit is seeking unspecified damages for illness or
anxiety related to the chemical exposure.
One of the court-appointed class counsels in the suit is David
Groner of Law Office of David Groner, P.L.C., 230 West Main
Street, P.O. Box 9207, New Iberia, Louisiana 70562-9207 (Iberia
Parish), Phone: 337-364-3629, Fax: 337-367-2438.
DEAN FOODS: Recalls Choco Ice Cream Over Undeclared Almonds
-----------------------------------------------------------
Dean Foods Co. of California, LLC is recalling Albertsons brand
"Chocolate" ice cream because it may contain undeclared almonds.
Individuals with allergies to almonds run the risk of a serious
reaction if they consume this product. No illness or allergic
reactions have been reported.
The ice cream is packaged in a 2-piece, 1.75 quart container
with a lid that identifies the product as "Rocky Road" ice cream
and a container that identifies the product as "Chocolate" ice
cream. The ice cream actually inside the container may be
"Rocky Road," which contains almonds that are not listed as an
ingredient on the label of the container. No other products are
involved in this voluntary recall.
Consumers should look for this information on the bottom of the
container to identify the product: Best by Date: AUG/31/2007.
Approximately 180 units of the affected product may have been
produced. Some of the affected product has been recovered and
stores have been instructed to remove any of the affected
product from store shelves. The ice cream was manufactured at
Dean Foods Co. of California's Buena Park ice cream plant and
was distributed to Albertsons stores in Southern California.
Consumers can return the product to their place of purchase for
a full refund or exchange. Consumers with questions may contact
Dean Foods Co. of California toll free at (877) 234-0022.
FIRST BANKS: Oct. 26 Hearing Set for Check Cashing Fee Lawsuit
--------------------------------------------------------------
Circuit Judge Don Weber in Madison County, Illinois has set an
Oct. 26 hearing on a motion by First Banks to dismiss a suit
filed against it over its check cashing fee, Steve Korris of The
Madison St. Clair Record reports.
The suit was filed by the Lakin Law firm in the court of Circuit
Judge Phillip Kardis in 2004. It was brought on behalf of
Darryl Johnson of Collinsville who paid $5 check cashing fee
each time he cashed a check drawn on First Banks, because he had
no account in the bank.
Gail Renshaw of the Lakin Law Firm claimed that by charging a
fee the bank wrongfully dishonored the check. She moved to
certify a class action, with Mr. Johnson representing thousands
who had paid the fee in the U.S.
First Banks attorney Troy Bozarth moved to dismiss the suit in
2004. In July 2004, Paul Marks of the Lakin Firm proposed an
amended complaint and was granted leave by Judge Kardis to file
it.
The new complaint added a claim that the fee did not relate to
any cost at the bank, and thus amounts to a penalty. It also
revised the complaint to state that the plaintiff was forced to
pay so that the defendant would honor the check, and that the
fee was regularly charged to persons not just those who were
without an account.
Mr. Bozarth moved to dismiss the suit in March 2005. The next
month, he asked for a hearing on the motion to dismiss. The
hearing was set Sept. 29, but Judge Kardis retired before then
and his cases passed to Judge Weber.
The Lakin attorneys tried to remove Judge Weber from the cases
it had brought before Judge Kardis, accusing him of bias. Chief
Judge Edward Ferguson denied the motion in March, and retained
Judge Weber.
Judge Weber set an April 26 management conference. The parties
met again at a Sept. 28 management conference where Judge Weber
set the motion to dismiss for Oct. 26.
FLORIDA: Substitute Teacher Files Suit Over Retirement Benefits
---------------------------------------------------------------
A Broward County, Florida substitute teacher has filed a lawsuit
seeking to change a school district practice that denies him and
other part-time workers state or federal retirement benefits,
The Miami Herald reports.
Jane Letwin filed the suit on behalf of substitute teacher
Richard Friedlander in the U.S. District Court for the Southern
District of Florida. She filed it in August, planning to turn
it into a class action within this month.
The suit is about how Mr. Friedlander, 64, wants to retire but
can't afford to since the Broward school district doesn't
contribute to the same type of retirement account for its 10,300
substitutes, part-timers and temporary workers that its full-
timers benefit from.
Instead, a portion of substitutes' paychecks is sent to a
private company with no requirement for a matching district
portion, a policy that saves the district money. In contrast,
the district withholds money from full-timers, whose retirement
money is invested in a state-matching program.
A change to tax laws in 1991 allowed government agencies to
contribute to government retirement programs -- instead of to
Social Security -- on behalf of their employees. But that
retirement system isn't available to part-time or substitute
employees.
Mr. Friedlander calls the practice the "privatization" of Social
Security, and thus has sued to change it. According to him, the
paycheck deductions he has been contributing toward retirement
have been invested in low-interest accounts and aren't enough
for him to stop working.
Mr. Friedlander works at Atlantic Technical Center in Coconut
Creek. He has been working for the district since 1996 and had
suffered a stroke nine years ago.
GUAM: Judge Grants $59M to Govt. Retirees in COLA Increase Suit
---------------------------------------------------------------
Guam Superior Court Judge Arthur Barcinas awarded about $59
million to government retirees pursuing a class action for
denied cost-of-living increases, the Pacific Daily News reports.
The judge based his ruling on the Retirement Fund's calculation
of what is owed: about $91 million minus the $32 million
retirees were instead paid during the years the law was in
effect.
He ordered retirees' attorney Mike Phillips to receive 10
percent of the judgment, or about $5.9 million.
But Mr. Phillips believes the Retirement Fund's calculation was
closer to $96 million, which means the amount of the judgment
actually is about $64 million.
Judge Barcinas finished hearing arguments on the calculation of
the increases due to government retirees on Aug. 31 (Class
Action Reporter, Sept. 19, 2006).
Arguments presented focused mainly on whether inflation
information from those years was calculated at all, as required
by the law, and whether the government's inflation figures from
those years are accurate, according to Steve Limtiaco of Pacific
Daily News.
The governor is facing a class action for failing to pay more
than 4,000 retirees COLA based on inflation, as required by a
law that was in effect between 1988 and 1995.
Previous report said the governor's attorneys are insisting the
Government Claims Act requires COLA lawsuits to be filed
individually and not as a class action. They are also
challenging the way the court ordered the payment of COLA
increases, and its authority to force it to immediately pay
COLA, saying it infringes on the governor's ability to determine
when various debts need to be paid.
Further, they want to justify the application of other
adjustments it has provided to retirees since 1990 to offset the
total amount of COLA that must be paid.
In March, Judge Barcinas ordered the governor to calculate the
amount of COLA owed to retirees, and provide that information by
May 31. But instead of complying to the order, Guam filed a
challenge to the court-ordered retroactive COLA increases to
retirees.
Judge Barcinas held a hearing on the suit on Aug. 9, wherein he
instructed attorneys in the case to submit calculations for the
expected cost to the court by Aug. 23.
Lawyers of both parties in the class action filed by Candelaria
Rios, were in disagreement over the base year for the
computation of payments.
The government's legal adviser, which drafted a proposed order
for the award, said it is 1990. On the other hand, the
retirees' attorney said it should be 1988 as ordered by the
court.
Judge Barcinas, in an oral ruling, determined that the formula
for most of the payout will be based on the consumer price index
of 1988. The lawsuit was filed in 1993 and based on a law that
was implemented in 1988 but repealed in 1995.
In an Aug. 9 hearing, the governor's attorney Daniel Benjamin
raised concerns that the consumer price index was "very
inflated" during the years in question because of a flawed
process at the Department of Commerce.
Judge Barcinas told him to include the concern when the
government submits its calculations to the court. The commerce
department after 1995 started using a different formula to
calculate the price index, according to him.
Meanwhile, Mr. Phillips argued against allowing anyone outside
the commerce department, including the court or the governor, to
change the consumer price index because the law states the cost-
of-living allowance shall be based on the commerce department's
figures. Using that method, retirees could be owed about $100
million.
At the previous hearing, Mr. Benjamin argued that the Commerce
Department acknowledged its calculations were wrong. Mr.
Phillips countered that fairness is not at issue in the case,
but the law at the time, which must be followed.
Part of Mr. Benjamin's argument attacks the plaintiffs' proposal
to use the cost-of-living baseline of 1988 that he said was
never calculated.
Representing the government is Dooley Roberts & Fowler LLP,
Suite 201, Orlean Pacific Plaza, 865 South Marine Drive,
Tamuning 96913, Guam, Phone: 617-646-1222, Fax: 671-646-1223,
Web site: http://www.guamlawoffice.com.
Representing the retirees is Michael F. Phillips, Hagatna
District, Guam.
HILTON HOTELS: "Resort Fees" Suit Settlement Hearing Set Nov. 14
----------------------------------------------------------------
The Circuit Court for the 20th Judicial Circuit in St. Clair
County, Illinois will hold on Nov. 14, 2006 at 10 a.m. a final
approval hearing in the settlement of the class action, "Thomas
L. Maulding et al. v. Hilton Hotels Corp Case No. 02-L-0645."
The class consists of all persons who:
(1) stayed at one of the participating hotels prior to Jan.
14, 2004;
(2) paid to the hotel property a resort fee; and
(3) (a) did not receive notice of that additional charge at
the time the reservation was made by the class
member, and/or
(b) believe the were misinformed or misled about the
nature, purpose, scope, amount, or ultimate
recipient of the resort fee.
The participating Hilton Hotels are:
- The Doubletree Golf Resort in San Diego, California;
- The Doubletree Surfcomber in Miami, Florida;
- The Doubletree Guest Suites Walt Disney World Resort in
Orlando, Florida;
- The Embassy Suites Deerfield Beach in Deerfield Beach,
Florida;
- The Hilton Sedona Resort & Spa, previously operated as
the Doubletree Sedona, in Sedona, Arizona;
- The Pointe Hilton Squaw Peak Resort in Phoenix, Arizona;
- The Pointe Hilton Tapatio Cliffs Resort in Phoenix,
Arizona;
- The Hilton Waikoloa Village Resort in Waikoloa, Hawaii;
- The Hilton Walt Disney World in Orlando, Florida;
- The Hilton Myrtle Beach in Myrtle Beach, South Carolina;
and
- The Hilton Palm Springs in Palm Springs, California.
The hearing will be at the Circuit Court for the Twentieth
Judicial Circuit in St. Clair County, Illinois in the courtroom
of the Honorable Michael O'Malley.
Deadline to file for exclusion and objection is Oct. 16, 2006.
In 2002, Thomas Maulding, sued Hilton Hotels in a class action
regarding Hilton's charging of resort fees to its hotel guest.
The suit alleges breach of contract and fraud. It claimed the
Beverly Hills-based company quoted a certain room rate to
customers, only to add on extra non-tax charges when it came
time to pay the bill.
The lawsuit alleges a single cause of action arising from the
claims of customers who reserved a room at a Hilton Resort
Hotel, who were promised certain room rates by Hilton, and who
incurred additional charges, including but not limited to a
"Resort Fee," that were not optional and that were not disclosed
by Hilton at the time the reservations were made or at the time
of check-in.
Specifically, the suit alleges that Hilton participated in a
scheme to deceive guests about the actual room rate by failing
to provide advance notice of the Resort Fee at the time of
reservation and misrepresented the nature of the Resort Fee, all
in violation of the Illinois Consumer Fraud and Deceptive
Practices Act and the similar consumer fraud statutes of the
other states in which Hilton operates resort hotels.
Further, the suit contends that the charges are unlawful and
actionable.
Hilton denies these allegations, and asserts that its policy and
practice was and is to provide notice of the existence and
nature of Resort Fees to guests at the time of check-in as an
optional package that would not be charged unless and until a
guest agreed to the purchase. Hilton further asserts that it
took diligent and reasonable steps to enforce that policy and
practice.
In August, Hilton reached a preliminary settlement under which
each of the participating hotels will discount its Resort Fees
on an ongoing basis by 75% until it has foregone a total of
22.5% of the Total Resort Fee collected by it prior to Jan. 1,
2004.
This benefit applies to any hotel guest incurring Resort Fees
after the Settlement Effective Date and prior to the discount of
22.5% of the Total Resort Fee, regardless of whether they are a
class member or not.
Class members who present themselves to Hilton with
documentation verifying their membership in the class, and incur
Resort Fees after the Settlement Effective Date, and prior to
the discount of 22.5% of the Total Resort Fee, will be
reimbursed the full amount of the Resort Fees then incurred.
To the extent possible, each of the participating hotels will
either:
(a) offer substantially identical amenities and services
previously offered for the non-discounted Resort Fee,
or
(b) to the extent those amenities or services are
unavailable, substitute amenities or services of equal
value.
A copy of the Settlement Agreement is available for free at:
http://ResearchArchives.com/t/s?12ff
Hilton Hotels Resort Fees Settlement on the net:
http://www.hiltonresortfeesettlement.com./index.php3
The suit is "Thomas L. Maulding et al. v. Hilton Hotels Corp.
Case No. 02-L-0645," filed in the Circuit Court for the
Twentieth Judicial Circuit in St. Clair County, Illinois under
Judge Michael O'Malley.
Plaintiffs' Counsel is The Lakin Law Firm, 300 Evans Avenue,
P.O. Box 229, Wood River, IL 62095-0229.
IDAHO: Seeks Dismissal of Negligence Claim in 2002 Field Burning
----------------------------------------------------------------
Retired District Judge William Woodland heard arguments on a
motion by the state for summary judgment to dismiss claims of
negligence filed against it in relation to warning people
regarding field burning on the Rathdrum Prairie in 2002,
according to The Spokesman-Review.
The suit stemmed from a class action filed by a group of
residents led by East Hope Mayor Lawrence Moon against North
Idaho grass seed farmers over the health effects of the smoke
from the farmers' annual late-summer field burning. The suit
was settled for $891,450. The payments went to cystic fibrosis
patients and people with asthma or other breathing problems.
In the recent suit, the plaintiffs target is the state. They
originally raised constitutional claims, including that the
state was "taking" residents' property value by allowing smoke
to invade their property. The court dismissed those claims and
left only the issue on whether the state was negligent in
training its smoke managers and in warning people about the
burning.
Attorney Ivy Arai told Judge Woodland the state was not specific
and timely in its warnings to North Idaho as to where the
burning would happen.
Idaho Deputy Attorney General Clay Smith argued that the state
had no legal duty to provide more warnings, or, if it did, it's
immune from lawsuits under an exception that covers
"discretionary" government activity, according to the report.
Mr. Smith also argued that under an Idaho Supreme Court ruling,
the people who brought the class action on behalf of residents
with breathing problems would have to prove that the state had a
special duty to them, beyond what it had to the general public.
Judge Woodland heard arguments from both sides on that motion,
then took the case under advisement, the report said.
The case was filed in district court in Kootenai County, but the
hearing was held in Boise because Judge Woodland is from
Pocatello, and attorneys in the case are from Boise and Seattle.
INSURANCE COS: N.J. Judge Wants More Data on Policyholders' Suit
----------------------------------------------------------------
Judge Faith Hochberg of the U.S. District Court for the District
of New Jersey is requesting more details in relation to a class
action by policyholders against dozens of brokers and insurers,
The Business Insurance reports.
The judge said plaintiffs failed to provide enough specific
information to support claims of an industry-wide conspiracy to
rig bids and steer business to selected insurers. Judge
Hochberg also ordered the plaintiffs to file supplemental
statements spelling out the particulars of their charges against
individual defendants.
Following the supplemental filings, brokers and insurers may
then renew motions to dismiss the litigation or seek summary
judgment, according to the judge.
The pending litigation, "In re Insurance Brokerage Antitrust
Litigation," consolidates 38 lawsuits filed by policyholders in
the wake of New York Attorney General Eliot Spitzer's 2004
allegations of bid rigging by Marsh Inc. and subsequent charges
of anticompetitive practices by numerous other brokers and
insurers.
The policyholder litigation, which is divided into separate
commercial property/casualty and employee benefits-related
complaints, alleges a vast, industry-wide conspiracy to stifle
competition for the benefit of brokers and insurers.
As an alternative to that theory, the plaintiffs also allege at
least six "broker-centered" conspiracies in which each of the
following brokers separately pursued a similar course of
anticompetitive conduct with insurers:
-- Marsh Inc.,
-- Aon Corp.,
-- Willis Group Holdings P.L.C.,
-- Arthur J. Gallagher & Co., Wells Fargo & Co. and
-- USI Holdings Corp.
Broker and insurer defendants filed motions to dismiss the
suits, arguing that the McCarran-Ferguson Act bars antitrust
charges against insurers and that the plaintiffs failed to state
facts supporting claims under the Sherman Act and the federal
Racketeer Influenced and Corrupt Organizations law.
However, in her Oct. 3, 2006 ruling, Judge Hochberg rejected the
defendants' McCarran argument citing that the antitrust
exemption applies only to "the business of insurance" and does
not cover the bid-rigging and client-steering practices alleged
in the complaints.
However, the judge agreed that the plaintiffs failed to provide
enough detail to support their charges of either "global" or
"broker-centered" conspiracies.
With regards to the global antitrust charges, Judge Hochberg
stated that the plaintiffs' broad allegations include together
more than a hundred defendants, other unnamed brokers and
insurers as well as 'other entities' without alleging any facts
to show that an implied or express agreement existed between the
alleged conspirators.
She also pointed out that plaintiffs failed to meet the
Racketeer Influenced and Corrupt Organizations Act's requirement
that they clearly describe the defendants' alleged racketeering
enterprise.
Judge Hochberg explained the complaint does not even identify
the members of the (property/casualty insurance) enterprise, but
only refers in vague terms to 'the defendants,' 'other insurers
that pay contingent commissions,' (and) 'other entities.'
In the supplemental filings she ordered, plaintiffs would have
to back up their charges with for example specifics of the
existence and function of the alleged racketeering enterprise.
The suit is "In re Insurance Brokerage Antitrust Litigation, MDL
No. 1663," filed in the U.S. District Court for the District of
New Jersey under Judge Faith S. Hochberg with referral to Judge
Patty Shwartz.
Representing the plaintiff are:
(1) Thomas M. Louis of Wells Marble & Hurst, PLLC, P.O. BOX
131, Jackson, MS 39205-0131, Phone: (601) 355-8321, E-
mail: tlouis@wellsmar.com;
(2) H. Alan Mccall of Stockwell Sievert, P.O. Box 2900,
Lake Charles, LA 70601, US, Phone: 337-436-9491;
(3) Ellen Meriwether of Miller Faucher & Cafferty, LLP, One
Logan Square, Suite 1700, 18TH & Cherry Streets,
Philadelphia, PA 19103, Phone: 215-864-2800, E-mail:
emeriwether@millerfaucher.com; and
(4) Douglas A. Millen, Counsel Not Admitted to USDC-NJ Bar
Much, Shelist, Freed, Denenberg, Ament & Rubenstein,
PC, 191 N. Wacker Drive, Suite 1800, Chicago, IL 60605-
1615, Phone: (312) 521-2100.
LONG ISLAND: High Court Throws Out Suit Over Power Surcharges
-------------------------------------------------------------
Commercial Court Judge Stephen Bucaria of the Supreme Court of
the State of New York threw out a class action over "fuel-price
adjustment" surcharges against Long Island Power Authority, the
Long Island Business News reports.
The judge cited the "filed rate doctrine" in holding that LIPA,
as a state authority created by the Legislature, wields the
capability of setting its own rate structure.
In his ruling, the judge wrote "Simply stated, the doctrine
holds that any 'filed rate' - that is, one approved by the
governing regulatory agency, is per se reasonable and
unassailable in judicial proceedings brought by ratepayers."
The judge added that if the court were to intervene and award
damages because of the class action case, the judge would in
effect become a rate-setting agency.
According to the report, a provision in state law allows the
power authority to impose surcharges to cover spikes in prices
of fossil fuels and other important expenses. If the surcharges
exceeded 2.5 percent per year, LIPA was supposed to petition the
state Public Service Commission for approval, according to Judge
Bucaria's ruling.
But, as the judge noted, the state Legislature never ratified
the provision requiring regulatory approval.
The suit was filed on behalf of all residential and business
customers of Long Island Power since 2001 seeking to recover
monies paid to LIPA as a result of an improper rate increases
(Class Action Reporter, Feb. 27, 2006).
The plaintiff is a resident of Suffolk County. In March, three
businesses were added as plaintiff in the suit. The new
plaintiffs include Pindar Vineyards in Peconic, and Doxsee Sea
Clam Co. in Point Lookout (Class Action Reporter, March 30,
2006).
The lawsuit alleged that LIPA used "fuel-price adjustment"
surcharges to increase the effective rate paid for power by Long
Island residents and businesses in order to avoid the conditions
of the Public Authority Control Board that bar the company from
implementing a rate increase of more than 2.5% without the
approval of the Public Service Commission.
In 1997, when the Public Authorities Control Board issued a
resolution authorizing LIPA to assume LILCO's assets, one of the
conditions was that LIPA seek the Public Service Commission
approval for any rate increase greater than 2.5 percent over a
12-month period. State legislature did not amend that
condition. Yet, LIPA said it was exempt from Public Service
Commission review.
The complaint asserted claims for breach of contract, unjust
enrichment, and deceptive trade practices in violation of New
York General Business Law 349. It sought compensatory damages
and injunctive relief.
The suit is, "Carol Patti v. Long Island Power Authority, Index
No. 06-3149," filed in the Supreme Court of the State of New
York, County of Nassau.
Representing the plaintiffs are Max W. Berger, Gerald H. Silk
and Avi Josefson of Bernstein Litowitz Berger & Grossmann, LLP,
1285 Avenue of the Americas New York, New York 10019, Phone:
212-554-1400; and Michael E. White of Jaspan Schlesinger
Hoffman, LLP, 300 Garden City Plaza, Garden City, New York
11530, Phone: 516-746-8000, Web site: http://www.jshllp.com.
LOUISIANA: Residents Mull Suit Against Iberia Parish Sheriff
------------------------------------------------------------
Residents of the largely African-American West End neighborhood
in the City of New Iberia, Louisiana are considering the filing
of a class action against Iberia Parish Sheriff's Department
over its use of tear gas on a crowd after the Sugar Cane
Festival, TheInd.com reports.
The residents met with an attorney to consider a class action
against the sheriff's department. About 40 citizens who
suffered injuries from the tear gas gathered on Oct. 2 at
Gator's Barbeque to meet with Opelousas attorney Jarvis J.
Claiborne.
The incident occurred at the intersection of Hopkins and
Robertson streets when a large crowd gathered for a block party
following the final Sugar Cane Festival parade on Sept. 24.
According to the sheriff's department, pedestrians and double-
parked cars blocked traffic along the state highway. Sheriff
Sid Hebert told The Daily Iberian that deputies first tried to
keep what he characterized as an unruly crowd from blocking the
street using a public address system. Sheriff Hebert maintains
that the deputies only resorted to tear gas after authorities
were unable to keep traffic flowing.
For more details contact Jarvis J. Claiborne, 814 N. Main St.,
Opelousas, LA, Phone: (337) 948-4336.
MAGEE-WOMENS: High Court Rejects Appeal in Medical Results Suit
---------------------------------------------------------------
The Pennsylvania Supreme Court rejected an appeal to overturn a
lower court decision that denied class-action status to a case
by two women against Magee-Womens Hospital over the reading of
Pap smear test results, Action News 4 Pittsburgh reports.
In 2004, Allegheny County Common Pleas Judge Robert P. Horgos
dismissed the lawsuit, "Walter, et al. v. Magee-Womens Hospital,
et al.," filed by two local women, saying the plaintiffs had not
shown they've been harmed as a result of the company's actions.
The Superior Court upheld that ruling in April 2005 (Class Sept.
18, 2006).
Plaintiffs in the suit are Christine Walter of Sewickley and
Sharon King of West Deer. Both are accusing the hospital of
misleading patients by putting physician auto-signatures to test
results that the physician had not reviewed.
Though neither woman has shown signs of illness, their attorney,
Robert Daniels, said that between 1995 and 2003 thousands of
women who had Pap smears at the hospital may be in danger since
a pathologist did not review the test results.
Thus, Mr. Daniels wants the court to order the hospital to have
a board-certified pathologist review any test results in
question and if deemed necessary retest some patients.
However, attorney William Pietragallo, who represents the
hospital, countered that the two women have no standing to sue,
since there is no evidence that their Pap smears were read
incorrectly, or that they sustained any harm. He pointed out
that fear of cancer is not a real injury.
The parties cited past court opinions backing ongoing monitoring
after exposure to asbestos or toxic substances. Mr. Pietragallo
though contends that the case is different, since women have
annual Pap tests that would reveal any abnormalities. Mr.
Daniels countered that the women might not know a previous test
was unreliable unless they received notification.
A brief filed by the Hospital and Healthsystem Association of
Pennsylvania on Magee's behalf argued that if the court rules in
favor of the women, "it would dramatically lower the threshold"
for patients to sue hospitals, leading to increased malpractice
premiums and higher health care costs.
But the hospitals attorney has argued that's not necessary
because there was no evidence the tests were read incorrectly or
that the women were harmed, the report said.
Plaintiffs are represented by Robert S. Daniels of Tabbert Hahn
Earnest & Weddle, LLP, One Indiana Square, Suite 1900,
Indianapolis, Indiana 46204-2032, Phone: (317) 639-5444, Fax:
(317) 639-5232, E-mail: rdaniels@tabberthahn.com.
Representing the hospital is William Pietragallo II of
Pietragallo Bosick & Gordon LLP, 38th Floor, One Oxford Center,
Pittsburgh, PA 15219, Phone: (412) 263-1818, Fax: (412) 261-
5295.
The suit on the Net: http://www.papsmearsuitagainstmagee.com/.
MCDONALD'S CORP: Faces Suit Over Alleged Labor Abuses in Calif.
---------------------------------------------------------------
McDonald's Corp. and four franchises were named defendants in a
lawsuit seeking class-action status in Sonoma County Superior
Court over labor abuses at seven McDonald's restaurants in Santa
Rosa, Sebastopol and Windsor, the San Francisco Chronicle
reports.
The Lawyers' Committee for Civil Rights in San Francisco,
representing eight former workers, alleges the employees were
sometimes forced to work for free, not paid overtime or denied
rest and meal breaks required by law.
Plaintiffs claim they were fired in January after they first
sued franchise owner Robert Mendes and his companies DCT Inc.
and Mendes Family Enterprises.
The suit does not specify how much money plaintiffs are seeking.
Representing plaintiffs is Mark A. Talamantes of Talamantes
Villegas Carrera, LLP, 1550 Bryant Street, San Francisco, CA
94103.
MEDIANEWS GROUP: Faces Worker Exploitation Complaints in Calif.
---------------------------------------------------------------
MediaNews Group Inc. is facing a lawsuit filed in Alameda County
Superior Court in California over charges of illegally
exploiting workers involved in the packaging and delivery of its
California newspapers, The Argus reports.
The suit, filed on behalf of a former contractor who worked at
the company's Newark plant and delivered The Argus Cynthia
Sotelo, contends that MediaNews falsely classifies laborers who
work overnight inserting advertisements, bagging, loading and
delivering newspapers as independent contractors rather than
employees to avoid paying them prevailing wages and offering
them benefits.
According to the complaint, the low pay and high workloads
required under the contracts "necessitate that the workers bring
in their family members." However, when the subcontracted
family labor is taken into account the workers end up making
less than the minimum wage.
Plaintiffs' attorney Frank Pitre, said under MediaNews'
contracts the company, oversees how the work is performed, among
others, making the arrangement an employer-employee
relationship.
The lawsuit is seeking class-action status and unspecified
damages.
Plaintiffs' lawyer is Frank M. Pitre of Cotchett, Pitre, Simon &
McCarthy, San Francisco Airport Office Center, Suite 200, 840
Malcolm Road, Burlingame, California 94010, Phone: 650-697-6000,
Fax: 650-697-0577.
MOHAWK INDUSTRIES: Appeals Court Allows Racketeering Complaints
---------------------------------------------------------------
The U.S. 11th Circuit Court of Appeals in Atlanta has allowed a
lawsuit filed against Mohawk Industries over allegations it
violated racketeering laws by hiring illegal immigrants,
Associated Press reports.
The court previously allowed plaintiffs to sue the company under
the Racketeer Influenced and Corrupt Organizations Act, but the
U.S. Supreme Court ordered it to reconsider its certification of
the suit in June.
The company is accused by current and former workers of hiring
thousands of illegal immigrants to keep wages low, violating
immigration laws, and forging documents. The suit was filed in
2004 in the U.S. District Court for the Northern District of
Georgia.
After hearing arguments on April 26, the Supreme Court ruled
that the appeals court should reconsider the case in light of a
separate opinion issued on the same day. In an 8-1 vote,
justices voted to throw out a suit filed under RICO by Ideal
Steel Supply Corp. against National Steel Supply Inc., owned by
the Anza family, alleging that its competitor underpays New York
taxes. Ideal Steel claims it lost sales as a consequence of
being undersold.
In the Mohawk suit, the point being argued is whether Mohawk and
its recruiters illegally formed a separate "enterprise." Mohawk
denies this saying a contract with another company which acted
as recruiter, does not constitute a racket.
The case raises the three pivotal questions in the immigration
debate:
(1) Are immigrants, legal or not, coming to work in the
U.S. because the economy needs them or because
companies exploit cheap labor to the detriment of U.S.-
born workers?;
(2) Should the front-line controls on illegal immigration
be the personnel offices of manufacturers?; and
(3) Will stricter checks on hiring documents for applicants
who look or sound foreign discriminate against all
Hispanics?
In the recent ruling, the court held that Mohawk's use of a
third-party recruiter to hire and conceal illegal aliens
satisfied the requirement in light of the U.S. Supreme Court's
decision in "Anza v. Ideal Steel Supply Corp."
A copy of the Court's Opinion is available for free at:
http://ResearchArchives.com/t/s?1302
Plaintiff attorneys said they would pursue the suit as a class
action on behalf of any worker employed by Mohawk between when
the case was filed in January 2000 and the time the case goes to
trial.
The original suit is "Williams, et al. v. Mohawk Industries,
Case No. 4:04-cv-00003-HLM," filed in the U.S. District Court
for the District of North Georgia under Judge Harold L. Murphy.
Representing the plaintiffs are:
(1) Bobby Lee Cook of Cook & Connelly, P.O. Box 370,
Summerville, GA 30747-0370, Phone: 706-857-3421, E-
mail: LisaDodd@alltel.net;
(2) Ronan P. Doherty, John Earl Floyd, Nicole G. Iannarone
and Joshua F. Thorpe of Bondurant Mixson & Elmore, 1201
West Peachtree St., N.W., 3900 One Atlantic Center,
Atlanta, GA 30309-3417, Phone: 404-881-4100, E-mail:
doherty@bmelaw.com, floyd@bmelaw.com,
iannarone@bmelaw.com and thorpe@bmelaw.com;
(3) Howard Foster of Johnson & Bell, 55 East Monroe St.,
Suite 4100, Chicago, IL 60603, Phone: 312-372-0770, E-
mail: fosterh@jbltd.com; and
(4) Matthew Daniel Thames of Goddard Thames Hammontree &
Bolding, Suite 209, P.O. Box 399, 101 N. Thornton Ave.,
Dalton, GA 30722-0399, Phone: 706-278-0464, E-mail:
mattatty@alltel.net.
Representing the defendants are, Steven Thomas Cottreau, Juan P.
Morillo and Virginia A. Seitz of Sidley Austin Brown & Wood,
1501 K. St., NW Washington, DC 20005, Phone: 202-736-8000, E-
mail: scottreau@sidley.com; and R. Carl Cannon and Rosemary C.
Lumpkins of Constangy Brooks & Smith, 230 Peachtree St., N.W.,
2400 Peachtree Center Tower, Atlanta, GA 30303-1557, Phone: 404-
525-8622, E-mail: ccannon@constangy.com.
MONEY FOR LIVING: Federal Ruling Backs Fraud Suit by Investors
--------------------------------------------------------------
Australia's Federal Court allowed investors in Money for Living
to pursue a class action against the company and its directors,
reports say.
The ruling follows an application by the Australian Securities
and Investments Commission relating to its proceedings against
Money For Living (Aust) Pty Ltd., MFL Property Holdings Pty
Ltd., and their directors Stephen O'Neill, Gary O'Neill, and
Jolanta Olszewski (Troubled Company Reporter - Asia Pacific,
Oct. 3, 2006).
The application was sought to assist the purchasers of products
offered by MFL and MFLPH in:
-- pursuing a class action or other proceedings against the
companies and its directors; and
-- to obtain clear determinations of law in relation to the
nature of the financial interest that MFL offered to
purchasers and the way in which it was promoted.
The ASIC argued that the product offered by MFL was a financial
product as defined under the Corporations Act and the ASIC Act,
for the purposes of provisions relating to misleading and
deceptive conduct.
In support of the ASIC's application, Justice Finkelstein found
that MFL:
* offered the vendors a financial product under the general
definition of the law;
* made false and misleading statements in the brochure and
on the Web site; and
* made false and misleading statements in the Agreements
with the vendors.
"This judgment is significant in that it confirms ASIC's view
that the products offered by MFL were financial products or
financial services. The clarification of the legal position
will assist elderly people who purchased MFL's products in
pursuing action against the companies and its directors,"
Executive Director of Enforcement, Jan Redfern says.
Significantly, Judge Finkelstein also found that the vendors
life tenancies are secure, that is their tenancies are
"guaranteed" to survive any adverse claims made, based on his
conclusion on the Transfer of Land Act 1958 (Vic) and the
equivalent provision in the Torrens legislation in other states.
The private law firms of Slater & Gordon, Russell Kennedy, and
Dellios West currently represent the 117 vendors who purchased
MFL's product in three related proceedings. The firms'
representations have been issued in either the Federal Court of
Australia or the Supreme Court of Victoria.
Pursuant to the ASIC Act 2001, the Sept. 29 findings of fact by
Judge Finkelstein may be used as evidence in these related
proceedings.
Class Action Against Lawyers
In 2005, Australian retirees who sold their homes to Money for
Living, launched a class action in the Supreme Court, accusing
the lawyers recommended by Money for Living of negligence (Class
Action Reporter, Dec. 16, 2006).
Queens Road law firm Diakou Faigan, which acted for dozens of
retirees, was accused of negligence and failing in its duty of
care after advising Money for Living clients to sign documents
authorizing the sale of their homes.
Lodged with the Supreme Court by Slater & Gordon, the writ
involves 70 retirees who sold properties to the failed company.
These properties were sold to third party investors who agreed
to maintain the monthly payments.
The writ alleges that Diakou Faigan failed to advise clients of
the risky nature of the scheme and that the installments were
not secured. It further claims that the firm also failed to
ensure that the clients were protected by caveats on the
properties and by registering tenancy agreements.
MFL and MFLPH were placed into voluntary administration on
Sept. 26, 2005, with George Georges and Peter McCluskey of
Ferrier Hodgson appointed as administrators.
NEBRASKA: High Court Junks Challenge to Rural Phone Service Fee
---------------------------------------------------------------
The Nebraska Supreme Court refused to declare that a monthly fee
charged to telephone customers in the state is an illegal tax,
The Associated Press reports.
The high court ruled in a case stemming from a 2002 class action
filed by attorney David Domina on behalf of three people. That
suit alleged that a 7 percent surcharge on telephone service
ordered by the state Public Service Commission in 1999 was not
approved by the Legislature, and is thus unconstitutional. It
also said the phone companies were wrongly using it to build and
upgrade systems (Class Action Reporter, June 5, 2006).
The fees, which were paid into the Universal Service Fund, were
intended to subsidize rural phone service. More than $349
million has been collected so far, according to the report.
The surcharge is collected on basic telephone rates and any
additional services, as well as in-state long-distance calls,
but not to Internet service or long-distance calls outside the
state.
In briefs submitted in the case by Mr. Domina and attorney
Claudia Stringfield-Johnson, they argues that only the
Legislature has the authority, empowered by law, to create the
charge. They further pointed out that there is no doubt the
Nebraska Legislature must itself, impose all of the state's
taxes. "This duty cannot be delegated," they said.
Attorneys for the state and several telephone companies argued
the surcharge is not a tax, since it does not raise revenue for
governmental purposes.
In agreeing with the state's argument, Judge Kenneth Stephan,
writing on behalf of the panel concluded that the primary
purpose of the fee "is not to generate revenue for governmental
purposes, but, rather, to regulate the telecommunications
industry through a rebalancing and restructuring of rates."
The fees were brought about by the Federal Telecommunications
Act of 1996 and were meant to help subsidize rural phone
service. More than $400 million has been paid into the
Universal Service Fund, which is listed on customers' monthly
bills.
The 7 percent surcharge applies to basic telephone rates and any
additional services, such as call waiting, and pagers and
wireless phones. It also applies to all in-state long-distance
calls but not to Internet service or long-distance calls outside
the state.
Besides Mr. Domina and Ms. Stringfield-Johnson, the group that
filed the lawsuit was led by Terry Cannon, a Lincoln lawyer;
Paul Schumacher, a Columbus lawyer; and Linda Aerni, owner of a
Columbus Internet company.
For more information, contact David Domina of Domina Law pc LLO,
2425 South 144th Street, Omaha, Nebraska 68144-3267 (Douglas
Co.), Phone: 402-493-4100, Fax: 402-493-9782.
PPG INDUSTRIES: Settles Auto Refinishing Paint Antitrust Suit
-------------------------------------------------------------
PPG Industries, Inc. agreed to settle a federal class action
related to alleged antitrust violations in the U.S. automotive
refinish industry from 1993 through 2000. It recorded an after-
tax charge of $14 million for a proposed settlement of the suit.
The settlement agreement remains tentative, pending formal
documentation and necessary court proceedings.
The company continues to assert that both PPG's internal
investigations and discovery conducted to date proves no
wrongdoing on its part.
Approximately 60 cases alleging antitrust violations in the
automotive refinish industry were initially filed in various
state and federal jurisdictions. The suits charged the company
and the other defendants with conspiring to fix prices and
allocate markets in the automotive refinish industry.
The approximately 55 federal cases were consolidated in the U.S.
District Court for the Eastern District of Pennsylvania.
Certain of the defendants in the federal automotive refinish
case have settled.
The plaintiffs in these various antitrust cases are seeking
economic and treble damages as well as injunctive relief.
The suit is "In re Automotive Refinishing Paint Antitrust
Litigation, MDL-1426," filed in the U.S. District Court for the
Eastern District of Pennsylvania under Judge Richard Barclay
Surrick.
PROVIDENCE HEALTH: Settles with Data Theft Victims for $95T
-----------------------------------------------------------
Providence Health System agreed to pay more than $95,000 to the
Oregon Department of Justice to settle a lawsuit for an alleged
failure to protect patient information, The Oregonian reports.
Under the settlement, filed in Multnomah County Circuit Court,
Providence admitted no violation of law, but agreed to reimburse
the Department of Justice for $95,764 in expenses.
The agreement requires Providence to pay patient claims for any
direct financial losses that may result from the theft of the
data.
According to Attorney General Hardy Myers, "To their credit,
Providence officials not only cooperated fully with the
Department of Justice investigation but will spend millions of
dollars in corrective action to relieve any harm to affected
consumers."
Attorney David Sugarman filed the lawsuit on behalf of Laurie
Paul (Class Action Reporter, Feb. 6, 2006). The suit claims,
the medical and personal records of 365,000 patients and 1,500
current and former Providence employees were lost when a laptop
containing the information was stolen on Dec. 31 from an
information services analyst who worked for Providence.
The company, which operates hospitals in Oregon and Washington,
disclosed the theft only on Jan. 25, more than three weeks after
the incident. Reports showed that Oregon has no law requiring
companies to report data thefts to customers.
In February, Providence Health System hired Kroll Inc., a New
York-based security and consulting firm, to provide one-year
free credit protection to employees and patients whose records
were stolen from an employee in December.
The offer was made available to the firm's 1,500 employees and
365,000 patients, who will sign up for the "ID TheftSmart"
service, which includes continuous credit file monitoring,
credit restoration, incase of identity theft, and reimbursement
of up to $25,000 for certain costs of from identity theft.
Plaintiffs are represented by David L. Sugerman of Cleary
Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New
York 10006 (New York Co.); Phone: 212-225-2000; Cable Address:
"Cleargolaw New York"; Telex: WUI 62985; Fax: 212-225-3999.
SCOTTISH RE: Ohio A.G. Seeks Lead Plaintiff Appointment for STRS
----------------------------------------------------------------
Ohio Attorney General Jim Petro filed a motion in U.S. District
Court for the Southern District of New York requesting that the
State Teachers Retirement System of Ohio be appointed lead
plaintiff in a securities class action filed in August against
Scottish Re Group Ltd., The Insurance Journal reports.
In papers filed with the court, the attorney general stated that
the reinsurance company's disclosures of serious accounting
problems in July precipitated an immediate 75 percent decline in
the company's stock price and caused STRS to suffer losses of
more than $16 million.
The company's July disclosures had to do with tax credits that
had previously boosted the company's financial results that were
now being reversed, as well as previously reported revenues that
had to be reversed and expenses that had not been included in
the company's financial results.
Case Background
On Aug. 2 and Aug. 7, 2006, putative class actions were filed
against:
-- the company,
-- Glenn Schafer, the chairman of its board of directors;
-- Dean E. Miller, chief financial officer;
-- Scott E. Willkomm, former chief executive officer; and
-- Seth Vance, former chief executive officer - North
America.
The suits were filed on behalf of a putative class consisting of
investors who purchased publicly traded securities between Dec.
16, 2005 and July 28, 2006.
On or about Aug. 7, 2006, a related class action was filed
against the company, Mr. Miller, Mr. Willkomm, and Elizabeth A.
Murphy, former chief financial officer, in the Southern District
of New York on behalf of a putative class consisting of
investors who purchased publicly traded securities between Feb.
17, 2005 and July 28, 2006.
Each of the complaints allege that the defendants made
materially false and misleading statements and/or omissions
concerning the company's business and operations, thereby
causing investors to purchase the company's securities at
artificially inflated prices, in violation of Sections 10(b) and
20(a) of the U.S. Securities Exchange Act of 1934, as amended,
and Rule 10b-5 promulgated under the 1934 Act.
Two of the complaints allege, among other things, that the
defendants made false and misleading statements that it was
poised for future profitable growth, even though the defendants
allegedly knew that it had failed to control expenses and manage
its investment and liquidity risk.
The third complaint alleges, among other things, that the
defendants made positive statements about the company and its
financial strength that were lacking in any reasonable basis at
the time they were made, and that the defendants failed to
disclose, among other things, that the defendants had improperly
valued allowances on deferred tax assets and that the company
lacked adequate internal controls.
Each of the class actions filed seek an unspecified amount of
damages, as well as other forms of relief.
The first identified complaint is "Michael Zuckerman, et al. v.
Scottish Re Group Ltd., et al., Case No. 06-CV-5853," filed in
the U.S. District Court for the Southern District of New York
under Judge Shira A. Scheindlin.
Plaintiff firms in this or similar case:
(1) Abbey Spanier Rodd Abrams & Paradis, LLP, 212 East 39th
Street, New York, NY, 10016, Phone: 212-889-3700, Fax:
212-684-519, E-mail: info@abbeyspanier.com;
(2) Brower Piven, The World Trade Center-Baltimore, 401
East Pratt Street, Suite 2525 , Baltimore, MD,
(3) Federman & Sherwood, 120 North Robinson, Suite 2720,
Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail:
wfederman@aol.com;
(4) Kahn Gauthier Swick, LLC, 650 Poydras St., Suite 2150,
New Orleans, LA, 70130, Phone: (504) 455-1400, E-mail:
lewis.kahn@kglg.com;
(5) Kirby McInerney & Squire, LLP, 830 Third Avenue 10th
Floor, New York Ave, NY, 10022, Phone: 212.317.2300;
(6) Murray, Frank & Sailer, LLP, 275 Madison Ave., 34th
Flr., New York, NY, 10016, Phone: 212.682.1818, Fax:
212.682.1892, E-mail: email@murrayfrank.com;
(7) Paskowitz & Associates, 60 East 42nd Street, 46th
Floor, New York, NY, 10165, Phone: 212.685.0969, Fax:
212.685.2306, E-mail: classattorney@aol.com;
(8) Pomerantz Haudek Block Grossman & Gross, LLP, 100 Park
Avenue, 26th Floor, New York, NY, 10017-5516, Phone:
212.661.1100, Fax: 212.661.8665, E-mail:
info@pomerantzlaw.com;
(9) Wechsler Harwood, LLP, 488 Madison Avenue 8th Floor,
New York, NY, 10022, Phone: 212.935.7400, E-mail:
info@whhf.com; and
(10) Wolf Haldenstein Adler Freeman & Herz, LLP, 270 Madison
Avenue, New York, NY, 10016, Phone: 212.545.4600, Fax:
212.686.0114, E-mail: newyork@whafh.com.
TARGET CORP: Calif. Judge Rules More Accessibility for Web Sites
----------------------------------------------------------------
Judge Marilyn Hall Patel of the U.S. District Court for the
Northern District of California has ruled in the purported class
action, "National Federation of the Blind, et al. v. Target
Corp." that commercial Web sites operated by brick-and-mortar
retailers must be accessible to the blind, according to Consumer
Affairs.
The suit charges that Target's website -- http://www.target.com
-- is inaccessible to the blind, and therefore violates the
Americans with Disabilities Act, the California Unruh Civil
Rights Act, and the California Disabled Persons Act (Class
Action Reporter, Sept. 12, 2006).
The company asked the court to dismiss the action by arguing
that no law requires it to make its Web site accessible. But,
the court denied the motion to dismiss and held that the federal
and state civil rights laws do apply to a website such as
Target.com.
The suit, which sought class action status, was filed on behalf
of all blind Americans who are being denied access to
target.com. The named plaintiffs are the NFB, the NFB of
California, and Bruce Sexton, Jr., a blind University of
California-Berkeley student.
The NFB originally filed the lawsuit in Alameda County Superior
Court, claiming that the giant retail chain discriminates since
its Web site is inaccessible to blind customers (Class Action
Reporter, Feb. 9, 2006).
The case was later removed to the U.S. District Court for the
Northern District of California and assigned to Judge Marilyn
Hall Patel.
NFB president Dr. Marc Maurer acknowledged the ruling as "a
great victory for blind people throughout the country." He says
that his group is very pleased "that the court recognized that
the blind are entitled to equal access to retail websites."
Dr. Maurer revealed that they tried to convince the company that
it should do the right thing and make its website accessible
through negotiations, but the company took the position that it
does not have to take the rights of the blind into account.
He also adds that with the ruling other companies are put on
notice that the blind cannot be treated like second-class
citizens on the Internet or in any other sphere.
In his suit, Mr. Sexton argued that Target.com lacks proper
"alt" tags, which provide brief text descriptions of images and
other Web page components. Without the alt tags, computerized
screen readers can't properly describe the contents of a Web
page to a visually impaired user.
The suit charges that Web sites' tags are sometimes misleading
or incorrect. It also charges that sometimes it missing
entirely.
In its defense, Target argued that the ADA did not apply since
its Web site was not a "place of public accommodation" as
defined by the ADA.
However, Judge Patel disagreed, pointing out that the Web site
was a "gateway" service provided by the company's s brick-and-
mortar stores, and therefore covered by the ADA.
The suit is "National Federation of the Blind et al. v. Target
Corp., Case No. 3:06-cv-01802-MHP," filed in the U.S. District
Court for the Northern District of California under Judge
Marilyn H. Patel.
Representing the plaintiffs are:
(1) Mazen Mohammed Basrawi and Laurence W. Paradis both of
the Disability Rights Advocates, 2001 Center Street,
Third Floor, Berkeley, CA 94704, Phone: 510-665-8644,
Fax: 510-665-8511, E-mail: mbasrawi@dralegal.org or
larryp@dralegal.org;
(2) Daniel F Goldstein of Brown Goldstein & Levy, LLP, 120
E. Baltimore Street, Suite 1700, Baltimore, MD 21202,
Phone: 410/962-1030, Fax: 410/385-0869, E-mail:
dfg@browngold.com; and
(3) Joshua Konecky and Todd M. Schnieder both of Schneider
& Wallace, 180 Montgomery Street, Suite 2000, San
Francisco, CA 94104, Phone: 415/421-7100, Fax: 415/421-
7105, E-mail: jkonecky@schneiderwallace.com.
Representing the defendants are:
(i) Michael James Bostrom and David Frank McDowell both of
Morrison & Foerster LLP, 555 W. Fifth Street, Suite
3500, Los Angeles, CA 90013, Phone: 213.892.5200, Fax:
213.892.5454, E-mail: mbostrom@mofo.com or
dmcdowell@mofo.com; and
(ii) Robert A. Naeve of Morrison & Foerster LLP, 19900
MacArthur Boulevard, 12th Floor, Irvine, CA 92612-2445,
Phone: 949/251-7541, Fax: 949/251-7441, E-mail:
rnaeve@mofo.com.
TENNESSEE TITLE: Court Says Arbitration is "Unconscionable"
-----------------------------------------------------------
The Tennessee Court of Appeals has ruled against defendants in
the purported class action, "Dawn Brown, et al. v. Tennessee
Title Loans, Inc., No. 04C1682," saying that a clause, which
allowed arbitration as the only option of disgruntled borrowers
was "unconscionable," according to The Chattanoogan.
The ruling on an interlocutory appeal by Dawn Brown and others
reversed a decision by Judge Jackie E. Schulten of the Circuit
Court for Hamilton County.
Dawn Brown, Anne Devries, Carly Hahn, and Greg Walton filed the
complaint on behalf of all other Tennessee residents similarly
situated. The putative class comprised all individuals who were
customers and borrowers of defendant within the past one-year.
In general terms, plaintiffs claim that defendant charged
interest in excess of the statutory maximum amount and/or
charged a "redemption premium fee" in excess of that allowed by
the Tennessee Title Pledge Act, Tennessee Code Ann. Section 45-
15-101, et seq.
Plaintiffs brought claims pursuant to the Tennessee Title Pledge
Act and the Tennessee Consumer Protection Act, Tenn. Code Ann.
Section 47-18-101, et seq. Plaintiffs sought compensatory and
punitive damages.
The title loan firms had sought to halt the court action and
move the cases to arbitration. However, plaintiffs argued that
the arbitration clauses were unconscionable, since clauses in
the title loan contracts reserved only to the title loan
companies the right to a judicial forum.
Judge Schulten had found that the arbitration clauses were not
unconscionable and granted the motion by the firms to compel
arbitration. The Tennessee Court of Appeals though disagreed
with the ruling and thus remanded the case back to her court.
Judge D. Michael Swiney delivered the opinion of the court, with
Judges Herschel P. Franks and Sharon G. Lee joining.
The court opinion is available free of charge at:
http://researcharchives.com/t/s?1303
For more details, contact James R. Kennamer of McMahan Law Firm,
323 High Street Chattanooga, TN 37403, Phone: (423) 265-1100 and
1-800-779-5822, E-mail: John@McMahanLawFirm.com, Web site:
http://www.mcmahanlawfirm.com/.
U-HAUL CO: Court Revives Unfair Competition, Consumer Fraud Suit
----------------------------------------------------------------
The California Second District Court of Appeal has reinstated
the purported class action, "Aron v. U-Haul Co. of California,
B181756," ruling that the plaintiff had a viable claim under the
Unfair Competition Law and Consumers Legal Remedies Act,
according to the Metropolitan News-Enterprise.
Leonard E. Aron filed the suit in Los Angeles Superior Court
against AMERCO subsidiaries U-Haul Co. of California and U-Haul
International, Inc. He sought class-action status for the case,
charging that the truck rental firm deceived customers about
fees charged for fuel.
The company has a standard of practice of renting trucks with
whatever fuel was left in the vehicle by the previous renter.
It gives each customer two options, which appear explicitly in
its customer agreement:
-- return the vehicle with at least the same amount of
fuel as was in the truck when it was rented; or
-- pay a $20 fueling fee plus $2 per gallon for fuel
estimated to have been used and not replaced.
The estimate is based on the fuel gauge reading, and customers
who return vehicles with more fuel than was in the truck at time
of rental do not receive credit.
Mr. Aron contends that the fueling charges are illegal, unfair
and fraudulent. He argues that since there is no accurate way
of measuring exactly how much fuel was in the vehicle at the
time of rental, the only way to avoid the charge is to purchase
more fuel than the customer actually uses.
Though, the trial judge granted judgment on the pleadings in
favor of the defendants, Justice Laurie Zelon, writing for the
Court of Appeal, overruled that decision and stated that the
complaint adequately pled causes of action under both the UCL
and the CLRA.
In reaching the ruling, Justice Zelon rejected U-Haul's
contention that it has a complete defense under the "safe
harbor" of Civil Code Section 1936(n)(2), which permits a rental
company to "charge for an item or service provided in connection
with a particular rental transaction if the renter could have
avoided incurring the charge by choosing not to obtain or
utilize the optional item or service," including "charges for
refueling the vehicle at the conclusion of the rental
transaction in the event the renter did not return the vehicle
with as much fuel as was in the fuel tank at the beginning of
the rental."
Justice Zelong pointed out that the statute only applies to
"passenger vehicle" rental companies, which are regulated by a
different statutory scheme than "motortruck" rental companies
such as U-Haul, whose vehicles are rented primarily to transport
property.
The justice went on to write that Mr. Aron "sufficiently alleges
an unlawful act" by pleading that the use of fuel gauges as the
sole measure of fuel use violates a state law making it unlawful
to use "any weight or measure or weighing, measuring or counting
instrument, knowing it to be 'incorrect' as...defined in
[Business and Professions Code] Section 12500." That section
provides that an instrument is "incorrect" if it fails to meet
reliability standards adopted by the state.
In addition, Justice Zelon also pointed out that Mr. Aron's
claim that customers are forced, in light of the inaccuracy of
the gas gauge, to either pay the refueling fee or purchase more
gas than they actually use alleges an unfair business practice
under the UCL and CLRA. She distinguished a case upholding
similar charges imposed by a car rental company, noting that the
ruling was based on Sec. 1936(n)(2).
Finally, the justice also distinguished a case upholding a
mandatory service charge imposed by a hotel on room service
customers. That charge, the jurist reasoned, was mandatory and
was disclosed as such. As alleged by Mr. Aron, U-Haul's fueling
practice is falsely advertised as giving the customer a means of
avoiding a fuel charge that is in fact unavoidable.
Nevada-based AMERCO (NASDAQ: UHAL) -- http://www.amerco.com/--
operates as a do-it-yourself moving and storage operator through
its subsidiary, U-Haul International, Inc. U-Haul offers do-it-
yourself moving and storage, and provides products and services
to help people move and store their household and commercial
goods.
UNITED STATES: Fla. Immigration Advocates Sue in Federal Court
--------------------------------------------------------------
A coalition of local immigrant advocacy groups filed a purported
class action against the federal government in the U.S. District
Court for the Southern District of Florida over the deportation
of undocumented immigrants/parents of U.S.-born children, The
Miami Herald reports.
The suit argues that the constitutional rights of those young
citizens are being violated by their families' precarious
status, and that deportations of the parents of U.S. citizen
children should stop until congress passes comprehensive
immigration reform.
Named as defendants in the suit, which was brought on behalf of
children whose parents hail from China, Colombia, Honduras,
Nicaragua, Poland, Venezuela as well as other countries, were:
-- President George W. Bush,
-- the Department of Justice,
-- the Department of Homeland Security, and
-- the director of U.S. Citizenship and Immigration
Services, Emilio Gonzalez.
Alfonso Oviedo-Reyes, president of American Fraternity, also
known as the Nicaraguan Fraternity, filed the suit. Honduran
Unity and the Peruvian-American Coalition joined him in filing
the suit. Donald Schlemmer, a Washington, D.C., is also in the
litigating team.
The case's premise is that the U.S. government did not enforce
its own immigration laws, thus allowing millions of undocumented
immigrants to live and work here for many years, eventually
forming families that include children who are American
citizens.
According to the lawsuit, the government has since lost its
right to deport those parents because it failed to do so for so
long, and now the rights of the U.S.-born children trump the
long-unenforced laws that would break up their families.
For more details, contact:
(1) Unidad Hondure¤a - Honduran Unity, 1421 S.W. 8 Street
Suite # 4, Miami, Fl. 33135, Phone: 305-285-1755, Fax:
305-285-1559, E-mail: joseclagos@yahoo.com, Web site:
http://www.unidadhondurena.cjb.net;
(2) Donald Schlemmer, 733 15th St. NW, Washington, DC,
Phone: (202) 842-1519;
(3) Peruvian-American Coalition, Phone: 786-388-0291 and
786-388-0292, E-mail: Web site:
http://www.peruvianamerican.com/;and
(4) Alfonso Oviedo of Alfonso Oviedo-Reyes Cogorno, Miami,
FL, Phone: 305-221-6519.
VERIZON NEW: Contacts Eligible Customers in N.J. Suit Settlement
----------------------------------------------------------------
As part of a statewide settlement in a class action that accuses
Verizon New Jersey, Inc. of continuing to bill customers for
circuits that were no longer being used, the company is
contacting New Jersey customers who are members of the class.
In July, Judge Alexander P. Waugh, Jr. of the Superior Court of
New Jersey approved the settlement. Under its terms, all New
Jersey customers billed for non-switched analog circuits will be
notified by Verizon. Customers can request that their circuits
be disconnected and, if they believe that Verizon took the
circuit out of service, have the right to request that Verizon
technicians conduct an on-site inspection of the wiring.
Following this inspection, if it is determined that the circuit
is unusable, the customer will receive a refund of two years'
worth of charges. Customers whose circuits are usable or that
were destroyed may request that charges cease immediately.
Case Background
In a complaint filed in 2003, plaintiffs Junto Investments and
James Cogan alleged that Verizon continued to charge them for
non-switched analog circuits even though the circuits had been
destroyed or otherwise ceased to function.
Non-switched analog circuits are non-dialtone phone lines that
are routinely used for burglar alarm services, monitoring,
telemetry, and other similar services. These circuits may
become non-operational due to a variety of causes, such as the
customer's discontinuance of burglar alarm service or the
destruction of the wiring during remodeling. Junto and Mr.
Cogan alleged that Verizon continued to bill customers for these
circuits.
The suit is "Junto v. Verizon New Jersey, Inc., Docket No. MID-
L-000297-03," filed in the Superior Court of New Jersey, Law
Division, Middlesex County, under Judge Alexander P. Waugh, Jr.
Plaintiffs are represented by Steven A. Skalet of Mehri &
Skalet, PLLC, 1300 19th St NW, Suite 400, Washington, D.C.
20036, Phone: (202) 822-5100, Fax: (202) 822-4997, E-mail:
info@findjustice.com.
WAL-MART STORES: Penn. Court Hears Testimonies in Labor Lawsuit
---------------------------------------------------------------
Philadelphia County Court of Common Pleas Judge Mark Bernstein
heard testimonies in a lawsuit filed by Wal-Mart Stores, Inc.
employees alleging the store denied them meal and rest breaks,
as well as overtime pay, Jane M. Von Bergen of the Inquirer
reports.
Judge Bernstein certified a class on Jan. 16 after seeing
routine skipping of breaks and non-payment of extra work in Wal-
Mart's computer records (Class Action Reporter, Jan. 27, 2006).
That time, the suit is estimated to could cover nearly 150,000
current and former employees. The class is now being pursued on
behalf of 186,000 workers.
The hearing started Sept. 8. Delores Killingsworth Barber, 25,
of North Philadelphia, testified at the hearing that workers
suffered the problems the suit is raising worse during holidays
when they have to work overtime to get shelves restocked.
Ms. Barber worked at the Wal-Mart on Roosevelt Boulevard from
July 2003 until she was fired in May 2005, allegedly, on charges
she stole company time by taking meal and rest breaks at the end
of the shift because she had to finish her workload before then.
Wal-Mart executives also testified by video. They said it was
up to store managers to make sure that employees got their
breaks.
Joseph Campbell, Pennsylvania's regional personnel manager in
2004 and 2005, said Wal-Mart had an "open-door" policy for
workers' complaints, but he received few about missed breaks.
When he did receive them, he said, he investigated them.
The employees are represented by attorney Michael Donovan, of
Donovan Searles, 1845 Walnut Street, Suite 1100, Philadelphia,
Pennsylvania 19103 (Philadelphia Co.), Phone: 215-732-6067, Fax:
215-732-8060.
Representing Wal-Mart is Brian P. Flaherty of Wolf, Block,
Schorr & Solis-Cohen LLP, 1650 Arch Street, 22nd Floor,
Philadelphia, Pennsylvania 19103-2097 (Philadelphia Co.), Phone:
215-977-2000, Telecopier: 215-977-2334.
Asbestos Alert
ASBESTOS LITIGATION: Widow Files Suit v. 67 Defendants in W.Va.
---------------------------------------------------------------
Widow Patsy Ruth Vanhoose sued 67 defendants in an asbestos-
related lawsuit filed on behalf of her husband, Billy Ray
Vanhoose, in Kanawha Circuit Court, W.Va. on Sept. 18, 2006, The
West Virginia Record reports.
The suit did not specify what company or companies Mr. Vanhoose
worked for. He died on Sept. 19, 2004 at 67 years old.
Mr. Vanhoose was a mineworker and a member of the United Mine
Workers Association. He was also a U.S. Navy veteran.
The complaint said, "Over the course of his working years, the
decedent, Billy Ray Vanhoose, worked with and/or around asbestos
and asbestos-containing products and/or other harmful minerals
manufactured, supplied, sold, distributed and installed by the
defendants.
"As a result, the decedent, Billy Ray Vanhoose, breathed
asbestos and other harmful dusts created by the use of said
products and developed lung cancer."
Mrs. Vanhoose seeks compensatory and punitive damages.
Individually, she sues for loss of consortium.
Tony O'Dell of Berthold, Tiano, and O'Dell in Charleston, W.Va.
represents Mrs. Vanhoose.
A visiting judge will be assigned to Case No. 06-C-1948.
ASBESTOS LITIGATION: Va. Contractor Faces $1.25M Possible Fine
--------------------------------------------------------------
John Edward Callahan, a contractor from Roanoke, Va. charged for
violating the Clean Air Act by mishandling asbestos in 2005,
could get a US$1.25 million fine and 25 years in prison, The
Ronoake Times reports.
Mr. Callahan, 55 years old, pleaded not guilty in federal court
to five counts of violating the CAA. He was released on a
US$10,000 unsecured bond.
Court records showed that Mr. Callahan's firm, Environmental
Construction Inc., went out of business and he declared
bankruptcy after investigation started.
According to officials with the U.S. Attorney's Office and the
Environmental Protection Agency, the charges are said to first
involve asbestos removal in the Roanoke Valley.
U.S. Attorney John Brownlee said Mr. Callahan, who was not
licensed or trained to handle asbestos, knowingly endangered
three homeless men he hired. Mr. Callahan allegedly failed to
properly train and equip them to remove asbestos while
renovating the State & City Building in February 2005.
In the indictment, the building's owner, Rob Glenn, and Cliff
Mascitelli, the project's general contractor at the time,
accepted Mr. Callahan's proposal to remove asbestos from the
basement for US$2,100 rather than a bid from a licensed asbestos
firm for US$12,946.
In the indictment, Mr. Callahan gave three homeless men rain
gear, half-face respirators and US$10 an hour to do the work. He
knew the men were untrained and told them to tear out the
asbestos without wetting it, creating a cloud of hazardous
fibers in the basement. The men also removed their respirators
to eat and drink during work breaks in the basement.
The asbestos, which was taken from the ceiling and pipes over
three days, was put in garbage bags and taken to the city
landfill. A licensed asbestos removal firm later completed the
job for US$12,000.
The investigation widened when Mr. Callahan told authorities and
The Roanoke Times that he had removed asbestos for years from
Southwest Virginia job sites and did not realize he needed an
asbestos license.
Mr. Callahan had an environmental contractor's license, which
allowed him to do pollution control and remediation but not
asbestos work, from July 2004 until July 2005.
The state Department of Professional and Occupational Regulation
revoked Mr. Callahan's license at that time and fined him
US$3,500 for various violations, including handling asbestos
without a license and failing to complete other work for which
he had been paid.
ASBESTOS LITIGATION: Appeals Court Orders Coulter Award Reviewed
----------------------------------------------------------------
The damages award from Ernest and Lerose Coulter's suit against
Asten Group Inc. will be recalculated after the Court of Appeals
of Washington, Division 1, ordered the decision reversed and the
suit remanded.
The Panel, comprised of Chief Judge Marlin J. Applewick, Judges
H. Joseph Coleman and C. Kenneth Grosse, handed down the
decision of Case No. 56469-2-I on Sept. 25, 2006.
From 1951 to 1992, Ernest Coulter worked at the Port Townsend
Paper Mill. In 2001, he sued manufacturers, suppliers, and
distributors of asbestos-containing products used at the mill,
alleging that he contracted asbestosis from exposure from these
products. When trial started, Asten was left as the sole
defendant.
From 1962 to 1974, Asten supplied to the mill 28 asbestos-
containing "dryer felts," which were used to remove moisture
from the paper as it moved through the manufacturing process.
Mr. Coulter was exposed to Asten asbestos-containing dryer
felts, and asbestos from Asten products remained in the work
environment after 1974.
The evidence also established that Mr. Coulter was exposed to
other asbestos-containing products during his career and that he
was a heavy smoker until well into his adulthood.
The jury found that the Coulters incurred total damages of
US$242,500 and that Asten was liable. The jury assigned two
percent of the total combined fault to Mr. Coulter, five percent
to Asten, and 93 percent to all other suppliers of asbestos-
containing products.
Mr. Coulter proposed a US$215,716.50 money judgment. The King
County Superior Court rejected Mr. Coulter's proposal and agreed
with Asten, entering a judgment against Asten for US$12,125, an
amount equal to five percent of the total damages incurred by
the Coulters.
Mr. Coulter moved to alter the judgment, arguing that any
judgment was subject to joint and several liability. The Trial
Court denied the motion. Mr. Coulter and Asten appealed.
Under an exception to Washington's 1986 tort reform act, joint
and several liability applied to Mr. Coulter's asbestos-related
claims. The Appeals Court rejected Asten's arguments that Mr.
Coulter's contributory negligence was a total bar to recovery
and that inaccurate jury instructions require a retrial.
In conclusion, the Trial Court's award of damages is reversed.
Zachary B. Herschensohn, Scott Allen Niebling of Brayton Purcell
in Portland, Ore., Philip Albert Talmadge of Talmadge Law Group
PLLC in Tukwila, Wash., and Lloyd F. Leroy of Brayton Purcell
Law Firm in Novato, Calif. represented Ernest Coulter and Lerose
Coulter.
G. William Shaw, Matthew J. Segal, Fredric Tausend, and Michael
K. Ryan of Preston Gates & Ellis LLP, and Sarah Christine
Johnson of Seattle, Wash. represented Asten Group Inc.
ASBESTOS LITIGATION: UK Council Awards GBP116T to Teacher's Kin
---------------------------------------------------------------
The Tameside Borough Council in the United Kingdom awarded
GBP116,000 to the relatives of deceased teacher John Murphy
after a three-year legal battle, Thames Laboratories reports.
Mr. Murphy was said to have contracted mesothelioma by inhaling
asbestos dust during renovations to the school where he worked.
The Council eventually admitted liability but Mr. Murphy's
sister, Janis, said that she believes the case would have been
resolved sooner if her brother had still been alive.
ASBESTOS LITIGATION: Gov't Reserves AUD500T for Latrobe Research
----------------------------------------------------------------
The Australian Government has reserved AUD500,000 for asbestos-
related disease research in Gippsland, Victoria, ABC Gippsland
reports.
The funds would go to University of Melbourne project to test
about 1,000 Latrobe Valley workers who were exposed to asbestos.
Tony La Montagne, a researcher from the university, said workers
would be tested for the protein mesotheline, which may be a
cancer indicator.
Mr. La Montagne said, "So that is the marker, the marker would
be high levels of mesotheline indicating the need for someone to
be worked up to diagnostically to see whether indeed they have
an early stage of mesothelioma and then the idea would be to get
those people into treatment early."
Vicki Hamilton, from the Gippsland asbestos-related diseases
support group, said the research could make a real difference.
Asbestos has been used in power stations and housing in the
region since the 1920s.
ASBESTOS LITIGATION: Group Asks Aussie Gov't to Warn Homebuyers
---------------------------------------------------------------
The Australian Capital Territory's Research Group has accepted
new asbestos disease awareness measures, but said the Australian
Government must go further, KERALANEXT.com reports.
Industrial Relations Minister Andrew Barr said that nationally
accredited courses on the safe handling of asbestos would be
running in Canberra before the end of 2006.
Elizabeth Thurbon, of the ACT Research Group, wanted to see new
homebuyers and renters receive mandatory warnings about
asbestos' dangers, when they move into an older property.
Ms. Thurbon said, "At the point of sale I would like people to
be notified that if they are buying a house that's built before
1983 that ... the house contains asbestos or could contain
asbestos."
ASBESTOS LITIGATION: Thompsons Disputes Federal-Mogul Payment
-------------------------------------------------------------
Thompsons Solicitors has raised concerns over a GBP70 million
bill, being paid to Federal-Mogul Corporation's administrators
and their lawyers, relating to a compensation deal for asbestos
victims across Great Britain, according to a Response Resource
press release dated Sept. 29, 2006.
Administrators of Kroll Limited were put in charge of
negotiating a compensation scheme for employees who had been
exposed to asbestos while working at plants and factories across
the United Kingdom.
After five years of negotiations, a compensation deal was agreed
in September 2006 and claimants accepted an offer of 20 percent
out of GBP1. It means victims will share a GBP69 million fund.
Some mesothelioma victims with claims worth GBP100,000 would
receive GBP20,000.
It has been revealed, however, that Kroll has charged around
GBP40 million for their fees and their legal and professional
advisors are set to receive another GBP30 million.
Federal-Mogul went into administration in 2001, freezing all
compensation payments. At the time, the Company faced claims in
the United Kingdom estimated at up to GBP340 million.
Ian McFall of Thompsons Solicitors said, "Originally asbestos
claimants were offered just seven percent of what their claim
was worth, but through negotiations most people will be likely
to receive payments of around 20 percent.
"For those families who have suffered, it will be hard to accept
that they get only 20 percent while the administrators and their
lawyers will be paid their bill of GBP70 million in full."
ASBESTOS LITIGATION: Gulf South Pipeline Has $2.7M for Abatement
----------------------------------------------------------------
Boardwalk Pipeline Partners LP's subsidiary, Gulf South Pipeline
Co. LP, has recorded US$2.7 million for asbestos abatement,
according to the Company's registration statement, on Form S-1,
and filed with the U.S. Securities and Exchange Commission on
Sept. 29, 2006.
The US$2.7 million was part of a US$16.6 million environmental
accrual that Gulf South recorded in connection with its
acquisition by the Company in December 2004.
In connection with the acquisition, the Company's general
partner, Boardwalk Operating GP LLC, and Gulf South management
conducted an analysis of the environmental contamination and
related remediation costs at sites owned and operated by Gulf
South. The analysis was done in conjunction with a third-party
consultant.
Based in Owensboro, Ky., Boardwalk Pipeline Partners LP deals
with interstate transportation, gathering, and storage of
natural gas. The Company operates through two subsidiaries,
Texas Gas Transmission and Gulf South Pipeline Co., with a
combined 13,470 miles of pipeline in 11 states. Loews
Corporation owns the Company.
ASBESTOS LITIGATION: South African Victims' Trust Fund Drained
--------------------------------------------------------------
John Doidge, the chairman of the Asbestos Relief Trust, said
that a former mining company's money, meant to compensate people
who became ill from exposure asbestos dust and fibers, has run
out, according to BusinessReport.
The funds had paid compensation to 363 people.
The Trust was set up after Gencor, Gefco, Msauli, and Cape PLC
agreed to pay ZAR460.5 million for any damages arising from
asbestos-related diseases. Of this amount, Gefco paid ZAR10
million into the Trust to compensate people who worked at its
asbestos mines before 1981 when Gencor took over.
Piet van Zyl, a trustee and shareholder of Gefco, blamed the
depletion of the Gefco funds on the actuary who assumed that the
money paid by Gencor, Gefco and Msauli would be placed in the
same fund.
Mr. Doidge said that the trustees had no way of knowing how many
people would come forward and how many were in the Gefco pool.
The trustees had no way of knowing how many people were employed
by the asbestos mining firms, with figures varying between
30,000 and 50,000.
Before the settlement, claimants' lawyers said Gencor's
liability for future claims amounted to more than ZAR1 billion.
By Aug. 31, 2006, the Trust had paid ZAR85.8 million to 1,251
claimants with a further ZAR8.5 million in the process of being
paid out to 198 claimants. Of this, 1,145 people received
compensation from the Gencor fund, 363 from Gefco and 192 from
Msauli.
Gefco was in the process of realizing assets, rehabilitating the
environment and getting closure certificates for its mines.
Mr. Doidge said because it was impossible to determine how many
people would become ill because of exposure to asbestos dust and
fibers, the Trust was expected to operate for 25 years.
ASBESTOS LITIGATION: French Protesters Demand Nationwide Suit
-------------------------------------------------------------
About 3,100 protesters gathered at the landmark Montparnasse
Tower in Paris, France, on Sept. 30, 2006, to demand a
nationwide lawsuit against those who allowed workers to be
exposed to asbestos, The Associated Press reports.
Relatives of workers who died or suffered from asbestos-linked
lung ailments led the march from Montparnasse Tower toward the
Health Ministry.
Organizers said 3,000 people in France die each year from
asbestos-related disease.
Marie Odile Bertella-Geffroy, a judge who considers public
health-related cases, was quoted in the Journal du Dimanche
newspaper as saying a large-scale suit would be difficult
because of the challenge of finding solid proof and the
different legal norms in place at the time of exposure.
At least two cases in September 2006 have implicated large firms
in asbestos-related damages. A court in northern France fined
Alstom Power Boiler for exposing employees to asbestos.
A court in Clermont-Ferrand in the south is hearing four suits
accusing Compagnie Generale des Etablissements Michelin of
negligence for exposing its workers to dangerous levels of the
substance.
Experts determined in 2005 that the 60-story Montparnasse Tower,
which is undergoing gradual asbestos removal, had asbestos
hidden above false ceilings and in a shaft housing cables and
elevators.
Asbestos was used in French buildings and manufacturing into the
1970s, and was only formally banned in 1997.
ASBESTOS LITIGATION: Pipe Cleanup in Colo. Could Lead to Lawsuit
----------------------------------------------------------------
The cleanup of an asbestos-lined and abandoned water main along
West Oak Grove Road in Montrose, Colo. could incite legal action
by the West Montrose Sanitation District, Montrose Daily Press
reports.
The West Montrose Sanitation District concluded the US$285,000
cleanup of the pipe, which had been abandoned by the Chipeta
Water District.
The need for the cleanup arose in July 2006 when the Sanitation
District was working on the installation of a new sewer line and
struck the abandoned pipe and caused some soil contamination.
However, Chipeta Water District Manager Matt Collier said the
asbestos-lined pipe, originally installed in 1964, was abandoned
a month before the start of construction by the Sanitation
District.
Mr. Collier said Chipeta has not installed any asbestos-
containing pipe since 1968.
The Colorado Department of Public Health and Environment
declared earlier that there was no ground or air contamination
from asbestos at the site near the intersection of the J. Drain
ditch and West Oak Grove.
The CDPHE testing followed an 11-week effort by the Sanitation
District that included consultation with the state and the
hiring of outside specialists to do the cleanup.
The use of asbestos in pipes was once a common practice because
of its strength as a building material.
ASBESTOS LITIGATION: ALSTOM Set to Appeal French Court Decision
---------------------------------------------------------------
ALSTOM is set to appeal an asbestos-related decision from the
Lille Regional Criminal Court regarding events at the former
site of Alstom Power Boilers at Lys-lez-Lannoy in northern
France, Modern Power System reports.
The events allegedly occurred between 1998 and 2001.
The Company contested the Court's assertion that the activities
carried out at the site equated to "the manufacture and
transformation of products using asbestos" or "the containment
and removal of asbestos."
Moreover, the Company argued that measures taken to prevent dust
accumulation were carried out by independent organizations and
have been validated and proven to be compliant with the
regulations.
The Company also denied to have deliberately endangered the
health of its employees.
Based in Paris, France, ALSTOM's Power segment makes power
generation systems and constructs power plants. The Company also
makes rail equipment like railcars and signaling devices, and
builds luxury passenger ships, naval vessels, and natural gas
tankers.
ASBESTOS LITIGATION: Scottish Gov't Launches Compensation Reform
----------------------------------------------------------------
The Scottish Executive has launched moves to reform legislation,
which creates a compensation claim dilemma for some mesothelioma
victims, BBC News reports.
The Rights of Relatives to Damages (Mesothelioma) (Scotland)
Bill amends the 1976 Damages (Scotland) Act so that immediate
family claims for non-financial loss are not blocked if a victim
settles their own claim while still alive.
Mesothelioma victims currently have to choose between claiming
for damages and allowing their relatives to lodge a bigger claim
after their death.
The Scottish Executive said most opted to wait for the sake of
their families.
Deputy Justice Minister Hugh Henry said, "This is a terrible
disease and the number of known cases is rising. There are now
over 1,900 cases a year in Great Britain."
Mr. Henry said the Executive recognized the current compensation
arrangements were causing worry for families at a difficult
time.
Scottish Trades Union Congress assistant secretary Ian Tasker
said, "The current situation which compelled victims to choose
to take compensation in life and deny their family financial
security following their deaths was absurd."
ASBESTOS LITIGATION: Court Admits Testimony v. DaimlerChrysler
--------------------------------------------------------------
The Superior Court of Delaware, New Castle County, denied
DaimlerChrysler Corporation's motion to exclude expert testimony
that automotive friction products cause asbestosis, lung cancer,
and mesothelioma.
Judge Joseph R. Slights III handed down the decision of Civil
Action No. 77C-ASB-2 on May 9, 2006.
In a pretrial motion, DaimlerChrysler invited the Superior Court
to weigh in on a debate. The debate had been hosted in state
trial courts across the U.S. in which DaimlerChrysler or similar
defendants have asked whether asbestos litigation plaintiffs can
establish a medical or scientific link between exposure to
automotive friction products and asbestos disease.
Attorneys have led this debate on both sides by presenting
experts to provide the evidence upon which their legal arguments
have rested.
The Court has conducted the required analysis as to each of
plaintiffs' experts. Each expert has employed methodologies to
reach reliable conclusions that exposure to friction products
increases the risk of contracting asbestosis, lung cancer and
mesothelioma. Occupation specific epidemiology is not required
to support these conclusions.
Reliable expert testimony on both sides brought clarity to the
issue. Thus, the Superior Court denied DaimlerChrysler's motion.
Ian Connor Bifferato of Bifferato, Biden, Gentilotti & Balick in
Wilmington, Del., Thomas C. Crumplar of Jacobs & Crumplar, in
Wilmington, Del., Christopher J. Panatier and John J. Spillane
of Baron & Budd, P.C. in Dallas, Tex., William A. Kohlburn and
Michael J. Angelides of Simmons Cooper LLC in East Alton, Ill.,
Cameron R. Waddell of Leblanc & Waddell, LLP, in Baton Rouge,
La. represented the plaintiffs.
Somers S. Price, Jr. and James J. Kron of Potter, Anderson &
Corroon, LLP in Wilmington, Del., Samuel L. Tarry Jr. of
McGuirewoods, LLP in Richmond, Va. represented DaimlerChrysler
Corp.
ASBESTOS LITIGATION: Consolidated Container Dismissed in 3 Suits
----------------------------------------------------------------
Consolidated Container Co. LLC obtained dismissals in the
following asbestos-related lawsuits: Powell v. American Standard
Inc. et al., Hutchinson v. Georgia-Pacific Corporation et al.,
and Holmes v. Allied Manufacturing Company et al.
The Powell suit involved an alleged exposure site in August,
Ga., the Holmes suit involved an alleged exposure site in
Hopewell, Va., and the Hutchinson suit involved an alleged
exposure site in Augusta, Ga.
The Company has been made a party to several private suits
involving alleged asbestos exposure and hearing loss. The basis
for the Company's presence in these suits was the plaintiffs'
mistaken belief that the Company was the successor in interest
for all former Continental Can Co. sites.
Since the Company is the successor in interest for part of the
former Continental Can sites, none of which have been involved
in the asbestos and hearing loss cases, the Company has provided
evidence that it is not the successor in interest to the sites
at issue and has requested dismissal from these suits.
On June 24, 2004, the Company received a document production
subpoena initiated by the Federal Environmental Protection
Agency, Criminal Investigation Division, regarding removal of
about 300 linear feet of asbestos-containing materials that
occurred during a 2003 partial renovation of the Company's
property at 6300 Strawberry Lane, Louisville, Ky.
After reviewing the Company's response, the EPA informed the
Company that it had decided not to pursue the matter.
On Feb. 17, 2005, the Company received a Notice of Violation
from the Louisville-Jefferson County Air Pollution Control
District regarding asbestos-related removal activities, alleging
a US$68,400 civil penalty, and inviting the Company to enter
into a settlement agreement, known as an Agreed Board Order.
Subsequently, the Company entered into an Agreed Board Order
with APCD settling the alleged violations without admission of
any wrongdoing.
Based in Atlanta, Ga., Consolidated Container Co. LLC makes
frigid plastic containers for various products, including water,
milk, ketchup, salsa, soap, motor oil, antifreeze, insect
repellent, fertilizers, and medical supplies. The Company
markets its products to the dairy, water, agricultural, food,
and industrial chemical industries.
ASBESTOS LITIGATION: Armstrong World Exits Chapter 11 Bankruptcy
----------------------------------------------------------------
Armstrong World Industries Inc.'s Fourth Amended Plan of
Reorganization, dated Feb. 21, 2006, became effective on Oct. 2,
2006, and making way for the Company to emerge from proceedings
under Ch. 11 of the U.S. Bankruptcy Court, according to the
Company's Form 8-K report dated Oct. 2, 2006.
On Aug. 18, 2006, the U.S. District Court for the District of
Delaware confirmed the Company's Plan of Reorganization.
On Dec. 6, 2000, the Company had filed a voluntary petition for
relief under Ch. 11 of the U.S. Bankruptcy Code in order to use
the court-supervised reorganization process to achieve a
resolution of asbestos-related liability claims against the
Company.
The Plan of Reorganization includes a comprehensive settlement
resolving the Company's liability for asbestos-related personal
injury claims by establishing and funding the Armstrong World
Industries Inc. Asbestos Personal Injury Settlement Trust for
the benefit of current and future asbestos personal injury
claimants against the Company.
In implementing the Plan of Reorganization, the Company is
required to make to the Asbestos Trust and to the holders of
allowed general unsecured creditor claims against the Company
cash payments in an amount to be determined in accordance with
the Plan, which will be US$1.125 billion at a minimum and may be
greater depending on the amount of the Company's "Available
Cash" on Oct. 2, 2006. Most of the payments are to be made by
Oct. 17, 2006.
On Oct. 2, 2006, the Company entered into a trust agreement
establishing the Asbestos Trust with certain individuals as
trustees. As provided by the Plan, the Company on Oct. 2, 2006
issued 36,981,480 Common Shares to the Asbestos Trust. Moreover,
the Company will also pay on or about Oct. 16, 2006 to the
Asbestos Trust in cash an amount to be determined in accordance
with the Plan in a minimum amount of about US$724.9 million.
Based in Lancaster, Pa., Armstrong World Industries Inc.'s Floor
Products unit produces vinyl sheet and tile, linoleum, specialty
carpet, and hardwood flooring. Its Building Products unit
produces acoustical ceilings and suspension systems, and its
Cabinet Products makes hardwood, kitchen, and bathroom cabinets.
The Company is a subsidiary of Armstrong Holdings Inc.
ASBESTOS LITIGATION: Ariz. Plant Ex-Workers at Risk, ATSDR Says
---------------------------------------------------------------
The Arizona Department of Health Services and the Agency for
Toxic Substances and Disease Registry reported that former
workers who processed vermiculite from a Libby, Mont. mine at
plants in Phoenix, Ariz. and Glendale Ariz. were exposed to
asbestos, according to an ATSDR press release dated Sept. 28,
2006.
The exposure has put the former workers at an increased risk for
developing asbestos-related health problems.
The former Ari-Zonolite Co., located at 6960 52nd Avenue in
Glendale, processed vermiculite from Libby between 1951 and
1964.
The Phoenix facility, which now processes vermiculite from safer
sources, is currently operating. The W.R. Grace & Co.'s
Solomon's Mines Inc., located at 4220 West Glenrosa Avenue in
Phoenix, processed vermiculite from Libby between 1964 and 1992.
The report brought to 24 the number of public health
consultations completed in a series of 28 evaluations being
conducted at sites across the U.S. that received and processed
vermiculite mined in Libby, Mont.
ATSDR has linked some exposures to Libby vermiculite to
respiratory illnesses.
Workers carrying home asbestos fibers, on their hair and
clothing, could have exposed those that lived with former
workers while Libby vermiculite was being processed at the
Glendale plant between 1951 and 1964, and the Phoenix plant
between 1964 and 1992 to asbestos.
When Libby vermiculite was being processed at the Glendale plant
and the Phoenix plant, dust and fibers might have been released
into the air. AZDHS and ATSDR cannot determine the extent of
exposure to former residents who lived near the plant.
Most current residents living around the former plant are not
being exposed to asbestos from the sites. The Glendale plant
closed in 1964 and the Phoenix plant stopped processing Libby
vermiculite in 1992.
The Agency for Toxic Substances and Disease Registry, a public
health agency of the U.S. Department of Health and Human
Services, evaluates the human health effects from exposure to
hazardous substances.
ASBESTOS LITIGATION: Supreme Court Snubs U.S. Steel's Appeal
------------------------------------------------------------
The U.S. Supreme Court refused to hear U.S. Steel Corporation's
appeal of an asbestos-related insurance case the Company filed
against Liberty Mutual Insurance Co., The Associated Press
reports.
The Company sought to compel Liberty Mutual, the disability
insurance arm of Liberty Mutual Group, to pay for asbestos-
related wrongful death claims.
In April 2006, a U.S. Court of Appeals favored Liberty Mutual in
the case styled USX Corporation v. Liberty Mutual Insurance
Company, 06-186.
ASBESTOS LITIGATION: Ill. Central Faces Suit by 12 Ex-Workers
-------------------------------------------------------------
Illinois Central Railroad faces a combined Federal Employers'
Liability Act and Locomotive Boiler Inspection Act lawsuit filed
by 12 former railroad workers, who alleged workplace exposure
causing them to develop asbestosis and pneumoconiosis, The
Madison St. Clair Record reports.
The plaintiffs sought damages in excess of US$100,000 each under
the FELA and the LBIA.
The plaintiffs are John E. Adams, George Touchette, Junior E.
Langston, Richard Wayne Deppe, Floyd E. Grissom, Jospeh W.
Ruyle, John D. Schwinn, Melvin D. Barnett, J.D. Dunbar, Leon R.
Biggs, Dan W. Petet and Kenneth L. Novak.
Filed on Sept. 27, 2006 in St. Clair County Circuit Court, Ill.,
the complaint said the Railroad used asbestos-containing
materials and allowed employees to be exposed to various dusts.
The suit claimed the Railroad failed to provide plaintiffs with
a safe place to work and failed to warn them of the dangers of
exposure.
The complaint stated, "By at least the mid-1930s, if not
earlier, Defendant Railroad knew or should have known that
occupational exposure to dust could result in pneumoconiosis and
asbestosis and related adverse health affects, including
cancer."
Daniel R. Francis of the Francis Law Firm in St. Louis, Mo.
represents the 12 plaintiffs.
ASBESTOS LITIGATION: Tenn. Court Awards $5M to Former CSX Worker
----------------------------------------------------------------
A Hamilton County Circuit Court jury in Tennessee has returned a
US$5 million verdict in favor of Thurston Hensley, a former CSX
Railroad employee, the Chattanoogan.com reports.
The jury found that the 67-year-old Mr. Hensley had contracted
both asbestosis and toxic encephalopathy through his work for 33
years as an electrician at the railroad yards at Corbin, Ky.
The suit claimed that Mr. Hensley had to handle asbestos and was
around dangerous solvents during his time with the Railroad. Mr.
Hensley said he suffered lung damage from the asbestos and brain
damage from the solvents.
Mr. Hensley's lawyer, Doug Nichol of Knoxville, Tenn., said the
suit was filed under the Federal Employees Liability Act, which
allowed for compensatory damages but not punitive damages.
Mr. Nichol said that type of suit could be brought either in
federal or state court or in any place where the defendant
railroad has a railyard.
Mr. Hensley's other lawyer was Joe Satterley of Louisville, Ky.
Attorneys from St. Louis, Mo. originally filed the case.
Judge Jackie Schulten ruled on the case that was filed in
January 2002.
ASBESTOS LITIGATION: NSW Govt Extends Hardie Deadline to Oct. 31
----------------------------------------------------------------
The New South Wales Government has extended James Hardie
Industries NV's deadline, to set up its compensation fund for
asbestos victims, from Sept. 30, 2006 to Oct. 31, 2006,
Bloomberg reports.
Hardie has pledged to set up an AUD1.6 billion, US$1.2 million,
fund for victims last December 2005. The Company was forced into
negotiations after a NSW Govt. inquiry found the Company had
underfunded an existing compensation fund, and raised questions
about the move to register in the Netherlands in 2001.
The Australian Taxation Office has agreed that payments into the
fund will be tax-deductible. Hardie wants the ATO to go further
and endorse the fund as a tax-exempt charity.
Hardie started using asbestos in Australia in the 1920s. In
1968, the Company began to phase out blue asbestos and all
products were asbestos-free by 1986.
The Company said, the deadline extension "recognizes the fact
that James Hardie remains involved in discussions with the NSW
Govt. and the ATO to resolve outstanding issues relating to the
tax treatment of the special purpose fund."
Based in Sydney, Australia, James Hardie Industries NV uses
cellulose-reinforced fiber cement to create products for
residential and commercial construction, including siding,
external cladding, walls, fencing, and roofing. The Company
makes fiber-reinforced concrete pipe through its Hardie Pipe
business and roofing through Artisan Roofing.
ASBESTOS LITIGATION: Judge Extends Grace Exclusivity to July '07
----------------------------------------------------------------
Judge Judith Fitzgerald extends W.R. Grace & Co.'s exclusive
period to file a plan of reorganization until the conclusion of
the July 2007 omnibus hearing.
At the hearing on the Debtors' request, Judge Fitzgerald held
that all parties prior to any plan being confirmed by the Court
must consider the major issues of estimation and valuation.
"This is really not an easy decision for this Court because this
case has been on slow burn from time to time," Judge Fitzgerald
said.
Judge Fitzgerald, however, explained that the length of the case
is not the only factor that the Court has to consider,
especially given the complexities of the case; the very
different ideas of how to resolve the case that have been
articulated by different parties; the uncertainties that have
arisen post-petition including the criminal indictment, the New
Jersey environmental claim that is a decade old or longer; and
the other matters that have added layers of complexity beyond
those that have existed in some of the other asbestos
bankruptcies.
The Debtors have filed a plan of reorganization that has the
support of the unsecured creditors and old equity holders.
The asbestos constituencies in the Debtors' cases have agreed in
principle to a competing plan that proposes to wipe out old
equity in Grace. The asbestos committee's plan allocates 85% of
the Debtors' assets to personal injury claimants and 15% to
property damage claimants, after payment of administrative
expenses.
"At this point in this case, it is more important for all
parties to focus their efforts on resolving the outstanding
issues than in creating additional fees and expenses for the
estate by requiring the filing or redoing or doing of competing
plans," Judge Fitzgerald said.
The Court will commence estimation of Grace's asbestos
liabilities on June 13, 2007.
The Court's order is without prejudice to any other party
seeking to terminate exclusivity for cause.
(W.R. Grace Bankruptcy News, Issue No. 116; Bankruptcy
Creditors' Service, Inc., 215/945-7000)
ASBESTOS LITIGATION: Eswood Seeks Payment of Claim from USG Corp
----------------------------------------------------------------
Eswood Community Consolidated Grade School seeks payment of its
asbestos-related claim from USG Corporation and the other
Debtors.
Eswood filed Claim No. 5134 for US$7,273.
Dwight J. Mayberry, superintendent of schools relates that
Eswood School District has suffered over US$700,000 in costs of
the asbestos in one of its buildings and had to dispose of the
building and rebuild to provide space to house grades 5-8
classrooms.
"Between the lawyers and the courts receiving their share,
nothing has been given back to the school that suffered a major
expense," Ms. Mayberry says.
The Debtors have objected to the Eswood Claim on grounds that
the Claim relate to their obligations to satisfy certain rebate
coupon obligations under a prepetition settlement. The Debtors
relate that their only obligation to holders of the Coupon
claims is honoring of the rebate coupons, not making any
payments on account of the Claims.
(USG Bankruptcy News, Issue No. 123; Bankruptcy Creditors'
Service, Inc., 215/945-7000)
ASBESTOS LITIGATION: ASARCO LLC Answers Jury Request Oppositions
----------------------------------------------------------------
ASARCO LLC and the Official Committee of Unsecured Creditors of
ASARCO LLC tilt at arguments that the Official Committee of
Unsecured Creditors for the Asbestos Subsidiary Debtors and
Robert C. Pate, as future claims representative, never made,
Jacob L. Newton, Esq., at Stutzman, Bromberg, Esserman & Plifka,
APC, in Dallas, Tex., tells Judge Richard S. Schmidt.
The Asbestos Committee and the FCR assert that they have not
implied that ASARCO and its Creditors Committee have consented
to the Court conducting a jury trial. Mr. Newton contends that
the Asbestos Committee and the FCR prefer that the Court with
the required express consent of all parties concerned conduct a
jury trial. The Asbestos Committee and the FCR believe that the
Court could conduct a jury trial without the delay and attendant
increased costs to the Debtors' estates that withdrawal of the
reference to the district court likely would entail.
The Asbestos Committee and the FCR remain committed to the
schedule agreed upon for the contested matter, according to Mr.
Newton. Any delay resulting from a jury trial will be caused by
ASARCO and the Committee's refusal to consent to a jury trial
before the Court, Mr. Newton avers.
Furthermore, the Asbestos Committee and the FCR assert that:
1. They have timely filed demands for a jury trail. Thus, the
ASARCO Committee's argument that the Asbestos Committee and the
FCR waived their right to a jury trial by failing to make a jury
demand is without merit;
2. ASARCO and its Creditors Committee ignore the authority that
the right to a jury trial in federal court is a matter of
federal law;
3. The Fifth Circuit has held that a party is entitled to a jury
trial on claims to pierce the corporate veil. ASARCO tries to
avoid the Fifth Circuit's binding precedent by giving a strained
interpretation to the plain language of the Court and concluding
that the Fifth Circuit's holding does not "provide any
guidance."
4. While state law determines the elements of the Asbestos
Debtors' substantive claims to pierce the corporate veil, the
Court has not determined what state's substantive law will
apply. ASARCO has assumed that the substantive law of either
Alabama or Delaware will apply to the Derivative Asbestos
Claims. However, the Asbestos Committee and the FCR believe that
Texas law may apply as the Asbestos Debtors' principal place of
business and principal assets warranted their filing their
Chapter 11 cases in the Texas Bankruptcy Court;
5. ASARCO and its Creditors Committee's arguments ignore the
fact that the cases are jointly administered but have not been
substantively consolidated; and
6. The classification of the Derivative Asbestos Claims as core
or non-core has no bearing on the Court's analysis and on a
Seventh Amendment determination. Even if the Court determines
that the Derivative Asbestos Claims constitute a core
proceeding, the Asbestos Debtors will not have lost their right
to a trial by jury on their legal claims.
Accordingly, the Asbestos Committee and the FCR ask the Court to
find that the Asbestos Debtors are entitled to a jury trial on
ASARCO's liability for the Derivative Asbestos Claims.
(ASARCO Bankruptcy News, Issue No. 30; Bankruptcy Creditors'
Service, Inc., 215/945-7000)
ASBESTOS LITIGATION: Judge Grants ASARCO Extension to Jan. 2007
---------------------------------------------------------------
U.S. Bankruptcy Court Judge Richard S. Schmidt granted ASARCO
LLC until Jan. 5, 2007 to file a bankruptcy reorganization plan
to deal with its labor unions and to address its asbestos and
environmental liabilities, The Associated Press reports.
The Company also received an extension of its exclusive right to
lobby its creditors through March 9, 2007.
A subsidiary of Grupo Mexico SA, the Company filed for Chapter
11 on April 11, 2005 in the U.S. Bankruptcy Court it Corpus
Christi, Tex.
In court papers, the Company said it needed the extension
because of the complexity of the issues it has faced.
The Company is subject to more than 75,000 asbestos-related
personal-injury claims and is working with federal and state
governments on environmental cleanups at 94 sites in 21 states.
Based in Tucson, Ariz., ASARCO LLC is an integrated copper
mining, smelting and refining company with nearly 2,000
employees, primarily in Arizona and Texas.
ASBESTOS LITIGATION: RPM Intl. Reports Record Sales in Fiscal 1Q
----------------------------------------------------------------
RPM International Inc. reported record sales and net income for
its fiscal 2007-1st quarter ended Aug. 31, 2006, according to a
Company press release dated Oct. 4, 2006.
Record net sales of US$844.2 million in the first quarter were
up 13 percent from the US$747.4 million reported a year ago.
First quarter net income was a record US$61.3 million, up 22.8
percent compared with last year's reported net income of US$50
million. Record first quarter diluted earnings per share of
US$0.49 were 22.5 percent ahead of US$0.40 per diluted share
reported in the fiscal 2006-1st quarter.
Prior year net income included a pre-tax asbestos reserve charge
of US$15 million. Excluding the charge, 2007-1st quarter results
exceeded 2006 adjusted first quarter net income of US$59.3
million, or US$0.47 per diluted share.
In the fiscal 2006-4th quarter, the Company established a 10-
year pre-tax asbestos reserve of US$321 million, of which
US$16.4 million was drawn down in the 2007-1st quarter to cover
indemnity and defense costs during the period.
Comparable costs amounted to US$16.5 million during the first
quarter one year ago.
Consolidated earnings before interest and taxes was US$107.5
million, up 24.6 percent over the US$86.3 million reported a
year ago, including an asbestos charge. Excluding the year-ago
charge, fiscal 2007-1st quarter EBIT increased 6.2 percent over
last year's US$101.3 million.
Frank C. Sullivan, president and chief executive officer, said,
"Our first quarter performance in both sales and earnings was
slightly ahead of our internal operating plan, and we continue
to anticipate overall sales growth for the year of 8 percent to
10 percent, with earnings increasing by 10 percent to 12 percent
before the asbestos charges taken during 2006."
Based in Medina, Ohio, RPM International Inc. makes home repair
products. The Company is divided into two units: industrial
products (waterproofing, corrosion resistance, floor
maintenance, and wall finishing) and consumer products (caulks
and sealants, rust-preventative and general-purpose paints,
patch and repair products, and hobby paints).
ASBESTOS LITIGATION: Health Dept. Notes Rise in Removal Breaches
----------------------------------------------------------------
The Hawaii State Department of Health noted an increase in
asbestos removal violations, raising concerns that building or
apartment owners are unaware of state and federal regulations
regarding the material, The Honolulu Adviser reports.
According to the Health Dept., there were five violations linked
to the improper handling of asbestos during renovation work over
the last 12-month period, from September 2005 to September 2006.
The increase in violations could be attributed to a high volume
of renovations and the lack of awareness by condominium owners
that there are strict state and federal guidelines for properly
removing the material.
"We're trying to do an outreach project with all residential
property agents in the state and trying to reinforce that there
are these rules out there and they should have a stake in the
health and safety of their tenants," Tom Lileikis, environmental
health specialist with the Dept.'s Radiation and Indoor Air
Quality Branch, said.
Building owners who illegally handle, remove and dispose of
asbestos could face up to US$10,000 in fines per day of
violation, Mr. Lileikis said.
Most buildings built before the 1980s have some asbestos-
containing materials, but they do not pose a health threat if
left in place in good condition, Mr. Lileikis said.
Regulations protect public health during renovation and
demolition, which can disturb asbestos-containing materials and
lead to exposure.
ASBESTOS LITIGATION: Hardie's Deadline Extension Angers Victims
---------------------------------------------------------------
The New South Wales Government's decision to give James Hardie
Industries NV until Oct. 31, 2006 to finalize its compensation
deal has angered asbestos victims, ABC NewsOnline reports.
Hardie had been given an extension until Sept. 30, 2006 because
of an ongoing dispute with the Australian Taxation Office over
the status of its compensation fund. The NSW Govt. has already
given four extensions to the Company.
In September 2006, the Company's shareholders voted in favor of
giving massive pay rises to its directors.
The two developments have angered Asbestos Diseases Foundation
spokesman Bernie Banton.
A spokesman for NSW Premier Morris Iemma said federal Treasurer
Peter Costello could end the dispute immediately by granting the
compensation fund a charitable status.
ASBESTOS ALERT: Lake States Industrial to Pay $275T for Breach
--------------------------------------------------------------
Judge Elsa Lamelas of the Milwaukee County Circuit Court in
Wisconsin ordered Lake States Industrial Services Inc. to pay
US$275,000 in an asbestos case, which alleged improper removal
during demolition of the former Solvay Coke facility on
Milwaukee's near south side, The Business Journal reports.
The case was prosecuted by the Wisconsin Department of Justice.
Lake States was found guilty after an Aug. 22, 2006 trial.
Golden Marina Causeway L.L.C. hired Lake States to demolish
buildings and structures at the former Solvay Coke & Gas Co.
facility at 311 E. Greenfield Ave.
Between May and September 2004, Lake States demolished buildings
and structures on the site that had asbestos. During inspections
of the abatement work, the Wisconsin Department of Natural
Resources observed "chronic" asbestos abatement regulation
violations.
The state previously obtained a judgment of US$40,000 against
Golden Marina Causeway.
Golden Marina had planned to build a US$1.5 billion complex with
offices, condominiums, retail shops and a marina at the
contaminated site that's bordered by Greenfield Avenue, railroad
tracks and the Kinnickinnic River.
New Securities Fraud Cases
CONNECTICS CORP: Howard G. Smith Announces Stock Suit Filing
------------------------------------------------------------
The Law Offices of Howard G. Smith announces that a securities
class action has been filed on behalf of shareholders who
purchased publicly traded securities of Connetics Corp. between
June 28, 2004 and May 3, 2006. The lawsuit was filed in the
U.S. District Court for the Northern District of California.
The complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the class period
concerning the company's financial performance and prospects,
thereby artificially inflating the price of Connetics
securities. No class has yet been certified in the above
action.
Interested parties move for lead plaintiff status on or before
Nov. 17, 2006.
For more details, contact Howard G. Smith, Esq., of Law Offices
of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020, Phone: (215) 638-4847 and (888) 638-4847, E-
mail: howardsmithlaw@hotmail.com, Web site:
http://www.howardsmithlaw.com.
MEADE INSTRUMENTS: Stull, Stull Announces Securities Suit Filing
----------------------------------------------------------------
Stull, Stull & Brody announces that a class action has been
filed in the U.S. District Court for the Central District of
California on behalf of investors who purchased the publicly
traded securities of Meade Instruments, Inc. between Sept. 27,
2001 and Aug. 29, 2006.
The complaint alleges that, throughout the class period,
defendants misrepresented and omitted material facts concerning
Meade's backdating of stock option grants to its officers John
Diebel and Steven Murdock.
Specifically, plaintiff alleges that at all times during the
class period, Meade represented that the exercise price of all
stock options would be no less than the fair market value of
Meade's common stock, measured by the publicly traded closing
price for Meade stock on the day of the grant.
However, in reality, those options were backdated so their
exercise price correlated to a day on or near the day Meade's
stock hit its low price for the year, or directly in advance of
sharp increases in the price of Meade stock. Defendant Diebel
directly benefited by exercising these backdated options.
As the truth concerning Meade's practice of backdating option
grants gradually became known to the market from a variety of
sources, the price of Meade's stock fell $0.70, or 25%, between
May 22, 2006 and Aug. 29, 2006.
Interested parties move for lead plaintiff status on or before
Nov. 27, 2006.
For more details, contact Tzivia Brody, Esq. of Stull, Stull &
Brody, Phone: 1-800-337-4983, Fax: 212/490-2022, E-mail:
SSBNY@aol.com, Web site: http://www.ssbny.com.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Maria Cristina Canson, and Janice
Mendoza, Editors.
Copyright 2006. All rights reserved. ISSN 1525-2272.
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