/raid1/www/Hosts/bankrupt/CAR_Public/070928.mbx
C L A S S A C T I O N R E P O R T E R
Friday, September 28, 2007, Vol. 9, No. 192
Headlines
ADELPHI UNIVERSITY: EEOC Lodges Gender Discrimination Charges
AFFILIATED COMPUTER: Consolidated Tex. ERISA Suit Remains Stayed
AFFILIATED COMPUTER: No Complaint Filed in Del. Buyout Lawsuit
AMC ENTERTAINMENT: Continues to Face Cal. FACTA Violations Suit
BLUE CROSS: Nov. 14 Hearing Set for $131M “Love” Suit Settlement
CAR MANUFACTURERS: Face Canadian Suit Over Alleged Price-Fixing
CORINTHIAN COLLEGES: Seeks Arbitration for Accreditation Suits
FINANCIAL FREEDOM: Accused of Fraud in Reverse Mortgage Loans
GUIDECRAFT INC: Recalls Puppet Theaters on High Lead Levels
JOHNSON & JOHNSON: Denial of Class Certification Motion Appealed
JOHNSON & JOHNSON: Dismissed from Class 2, 3 Claims in AWP Suit
JOHNSON & JOHNSON: Still Faces Endo-Mechanical Devices Suits
KINDER MORGAN: Wins Favorable Order in CO2 Committee Arbitration
KINDER MORGAN: Seeks High Court Review in “J. Casper Heimann”
MISSOURI: Eight Circuit Hears Appeal on Inmates' Abortion Case
NATIONWIDE MUTUAL: Investigators File Suit Over FLSA Violations
NORDSTROM INC: 9th Circuit Affirms Dismissal of Antitrust Suit
PARTNER COMMUNICATIONS: Faces Lawsuit Over Unlawful SMS Charges
RC2 CORP: Recalls More T&F Railway Toys Due to High Lead Levels
REX ENERGY: Jury Trial in Ill. H2S Emissions Suit Set Aug. 2008
SHENANDOAH VALLEY: Faces Wis. Lawsuit Alleging FCRA Violations
SPIRIT FINANCE: Yet to Reach Final Settlement in Merger Suits
ST. JUDE: Oral Arguments in Silzone Suit Could Occur Late 2007
ST. JUDE: Faces Suits in Canada Over Silzone-Coated Heart Valves
ST. JUDE: Faces Silzone Suit Filed for All Persons in E.U.
ST. JUDE: Continues to Face Securities Fraud Lawsuit in Minn.
TARGET: Recalls Gardening Tools for Lead Paint Standard Breach
TNS INC: Parties in Va. Securities Lawsuit Enter Into Mediation
UNITED STATES: PRLDEF Files N.Y. Lawsuit Over ICE Pre-Dawn Raids
WILD OATS: Faces Lawsuit in Calif. Over Employee Classification
Asbestos Alerts
ASBESTOS LITIGATION: Judge Stays Actions v. Mont., BNSF Railway
ASBESTOS LITIGATION: Trial in Action v. Georgia-Pacific to Begin
ASBESTOS LITIGATION: Asbestos Discovered in 6 Tasmanian Schools
ASBESTOS LITIGATION: U.K. Inquest Links Welder’s Death to Hazard
ASBESTOS LITIGATION: Cleanup to Cost Pa. School District $35,000
ASBESTOS LITIGATION: Woman’s Death Linked to 2nd-Hand Exposure
ASBESTOS LITIGATION: Court Affirms GE’s, CG&E’s Summary Judgment
ASBESTOS LITIGATION: Pa. Court OKs Abex Summary Judgment Motion
ASBESTOS LITIGATION: Claims v. Wolseley Rise to 320 at July 31
ASBESTOS LITIGATION: Ameron Int’l. Records 131 Claims at Aug. 26
ASBESTOS LITIGATION: ATSDR Says Hazard Levels Low at Calif. Site
ASBESTOS LITIGATION: Mass. DEP Probes Mishandling Claim at Bldg.
ASBESTOS LITIGATION: Asbestos Containment to Begin at N.H. Site
ASBESTOS LITIGATION: OSHA Issues $7,500 Penalty to Ill. Hospital
ASBESTOS LITIGATION: Ohio to Award $3M to University for Cleanup
ASBESTOS LITIGATION: “Take-home” Suits Get Mixed Court Opinions
ASBESTOS LITIGATION: U.K. Fire Union Calls for Health Screenings
ASBESTOS LITIGATION: Hazard Not Found in Long Island High School
ASBESTOS LITIGATION: Concerns on Asbestos Halt Bldg. Demolition
ASBESTOS LITIGATION: Hazard Found During Va. School Renovation
ASBESTOS LITIGATION: Boston Replaces Asbestos Cleanup Contractor
ASBESTOS LITIGATION: Tersigni Probed for Alleged Billing Breach
ASBESTOS LITIGATION: Ky. Laborer Sues 46 Companies in Ill. Court
ASBESTOS LITIGATION: Inquest Links Electrician’s Death to Hazard
ASBESTOS LITIGATION: EPA Says Church in Ill. Wrongly Demolished
ASBESTOS LITIGATION: Court Affirms RHI AG’s Reorganization Plans
ASBESTOS LITIGATION: Kans. Jail Demolition Delayed Due to Hazard
ASBESTOS LITIGATION: Auditor Gen. Says 8 Agencies Breaching Laws
ASBESTOS LITIGATION: Union Leader Examines Compensation Levels
ASBESTOS LITIGATION: Asbestos in Bldg. Materials Prompts Checks
ASBESTOS LITIGATION: Court Upholds Board Ruling in Andres Matter
ASBESTOS LITIGATION: Ship-Dismantling Order Criticized in India
ASBESTOS LITIGATION: FCR, Committee Seek ASARCO Database Access
New Securities Fraud Cases
FREMONT GENERAL: Cohen Milstein Files Cal. Securities Fraud Suit
W HOLDING: Schatz Nobel Announces Securities Fraud Lawsuit
*********
ADELPHI UNIVERSITY: EEOC Lodges Gender Discrimination Charges
-------------------------------------------------------------
The U.S. Equal Employment Opportunity Commission filed on Sept. 25 a gender
discrimination class action against Adelphi University, the Newsday reports.
The suit alleges the university pays its full-time female professors less
than male professors of similar status doing the same work, a charge the
university vigorously denied.
A complaint filed with the EEOC in 2005 by Judith H. Cohen, a tenured
education professor at Adelphi, sparked the EEOC's action. Ms. Cohen filed a
complaint with the EEOC after exhausting campus remedies.
According to the report, Louis Graziano, a trial attorney for the EEOC, said
in an interview his office found a "pattern" of pay disparity of both men and
women throughout the university, with respect to all their full-time
professors.
He said “...we found a number of instances that suggested to us there was a
pay disparity between men and women within the same departments and within
the same rank."
He added there could be "between 40 and 60 females paid less over the three-
year period" covered under the federal Equity Pay Act during which EEOC's
lawsuit is charging that the pay disparity existed.
The university strongly defended its pay practices, releasing a statement
saying, in part, that Adelphi's "compensation practices are lawful, fair and
equitable and it intends to vigorously defend them."
It added that salary decisions "are based on considerations such as
seniority, market demand, experience, areas of expertise, and other
legitimate factors apparently disregarded by the EEOC."
The statement added that Adelphi had cooperated with the EEOC and provided
information on its compensation practices that "show no discrimination ..."
The suit is "Equal Employment Opportunity Commission v. Adelphi University,
Case No. 2:2007cv04001," filed in the U.S. District Court for the Eastern
District of New York.
For more information, contact:
Louis Graziano
EEOC Trial Attorney
Phone: 212-336-3698
AFFILIATED COMPUTER: Consolidated Tex. ERISA Suit Remains Stayed
----------------------------------------------------------------
A consolidated class action against Affiliated Computer Services Inc., which
is alleging violations of the Employee Retirement Income Security Act,
remains stayed.
(1) One of the original suits filed is that of Terri
Simeon, on behalf of Herself and All Others Similarly
Situated, Plaintiff (Civil Action No. 306-CV-1592P),
against:
* Affiliated Computer Services, Inc.,
* Darwin Deason,
* Mark A. King,
* Lynn R. Blodgett,
* Jeffrey A. Rich,
* Joseph O’Neill,
* Frank Rossi,
* J. Livingston Kosberg,
* Dennis McCuistion,
* The Retirement Committee of the ACS Savings Plan, and
* John Does 1-30,
The suit was filed in the U.S. District Court for the Northern District of
Texas on Aug. 31, 2006.
(2) Another suit was filed by Kyle Burke, Individually and
on behalf of All Others Similarly Situated, Plaintiff
(Case No. 306-CV-02379-M), against:
* Affiliated Computer Services, Inc.,
* the ACS Administrative Committee,
* Lora Villarreal,
* Kellar Nevill,
* Gladys Mitchell,
* Meg Cino,
* Mike Miller,
* John Crysler,
* Van Johnson,
* Scott Bell,
* Anne Meli,
* David Lotocki,
* Randall Booth,
* Pam Trutna,
* Brett Jakovac,
* Jeffrey A. Rich,
* Mark A. King,
* Darwin Deason,
* Joseph P. O’Neill, and
* J. Livingston Kosberg,
The suit was filed in the U.S. District Court for the Northern District of
Texas.
On Feb.12, 2007, the Simeon case and the Burke case were consolidated under
the caption, “In re Affiliated Computer Systems [sic] ERISA Litigation,
Master File No. 3:06-CV-1592-M.”
Plaintiffs in the consolidated action filed a Consolidated Amended Class
Action Complaint on March 21, 2007. The Consolidated Amended Class Action
Complaint added Lynn Blodgett, Dennis McCuistion, Warren Edwards, John
Rexford, and John M. Brophy as defendants.
On April 6, 2007, the Court issued an order staying this case for 180 days,
or until either party requests that the stay be lifted, whichever occurs
first, (i.e., by Oct. 6, 2007).
A copy of the complaint is available free of charge at:
http://researcharchives.com/t/s?114c
The suit is "Simeon v. Affiliated Computer Services, Inc et al.,
Case No. 3:06-cv-01592," filed in the U.S. District Court for the Northern
District of Texas under Judge Jorge A. Solis
Representing the plaintiffs are:
Thomas E. Bilek, Esq.
Hoeffner & Bilek
1000 Louisiana St., Suite 1302
Houston, TX 77002
Phone: 713/227-7720
Fax: 713/227-9404
E-mail: tbilek@hb-legal.com
- and -
Thomas J. McKenna, Esq.
Gainey & McKenna
295 Madison Ave., 4th Floor
New York, NY 10017
Phone: 212-983-1300
AFFILIATED COMPUTER: No Complaint Filed in Del. Buyout Lawsuit
--------------------------------------------------------------
Plaintiffs in the class action, “In Re Affiliated Computer Services, Inc.
Shareholder Litigation, Civil Action No. 2821-VCL,” have yet to file a
consolidated complaint.
Several lawsuits have been filed in connection with an attempted buyout of
the company by founder Darwin Deason and Cerberus Capital Management LP. The
suits generally alleges claims related to breach of fiduciary duty, and
seeking class action status.
The plaintiffs in each case purport to be ACS stockholders bringing a class
action on behalf of all of the company's public stockholders.
Each plaintiff alleges that the proposal presented to the company by Darwin
Deason and Cerberus on March 20, 2007, to acquire its outstanding stock, is
unfair to shareholders, because the consideration offered in the Proposal is
alleged to be inadequate and to have resulted from an unfair process.
In the Delaware Chancery Court, six cases were filed:
-- “Momentum Partners v. Darwin Deason, Lynn R. Blodgett,
Joseph P. O’Neill, Frank A. Rossi, J. Livingston
Kosberg, Robert B. Holland, Dennis McCuistion,
Affiliated Computer Services, Inc., and Cerberus
Capital Management, L.P., Civil Action No. 2814-VCL,”
filed on March 20, 2007.
-- “Mark Levy v. Darwin Deason, Lynn Blodgett, John
Rexford, Joseph P. O’Neill, Frank A. Rossi, J.
Livingston Kosberg, Dennis McCuistion, Affiliated
Computer Services, Inc., and Cerberus Capital
Management, L.P., Civil Action No. 2816-VCL,” filed on
March 21, 2007.
-- “St. Clair Shores Police and Fire Retirement System v.
Darwin Deason, Lynn Blodgett, Joseph P. O’Neill, Frank
A. Rossi, J. Livingston Kosberg, Dennis McCuistion,
Robert B. Holland, Cerberus Capital Management, L.P.,
Citigroup Global Markets Inc., and Affiliated Computer
Services, Inc., Civil Action No. 2821-VCL,” in the
Court of Chancery of the State of Delaware in and for
New Castle County, filed on March 22, 2007.
-- “Louisiana Municipal Police Employees’ Retirement
System v. Darwin Deason, Joseph P. O’Neill, Frank A.
Rossi, J. Livingston Kosberg, Dennis McCuistion,
Robert B. Holland, Affiliated Computer Services, Inc.,
and Cerberus Capital Management, L.P., Civil Action
No. 2839-VCL,” in the Court of Chancery of the State
of Delaware in and for New Castle County, filed on
March 26, 2007.
-- “Edward R. Koller v. Darwin Deason, Frank A. Rossi, J.
Livingston Kosberg, Robert B. Holland, Affiliated
Computer Services, Inc., and Cerberus Capital
Management, L.P., Civil Action No. 2908-VCL,” in the
Court of Chancery of the State of Delaware in and for
New Castle County, filed on April 20, 2007.
-- “Suzanne Sweeney Living Trust v. Darwin Deason, Lynn
R. Blodgett, John H. Rexford, Joseph P. O’Neill, Frank
A. Rossi, J. Livingston Kosberg, Dennis McCuistion,
Robert B. Holland, Affiliated Computer Services, Inc.,
and Cerberus Capital Management, L.P., Civil Action
No. 2915-VCL,” in the Court of Chancery of the State
of Delaware in and for New Castle County, filed on
April 24, 2007.
On May 4, 2007, each of the six Delaware buy-out cases was consolidated into
one case, pending in the Delaware Chancery Court, entitled, “In Re Affiliated
Computer Services, Inc. Shareholder Litigation, Civil Action No. 2821-VCL.”
A Consolidated Complaint has not yet been filed by the plaintiffs, according
to the company's Aug. 29, 2007 Form 10-K Filing with the U.S. Securities and
Exchange Commission for the fiscal year ended June 30, 2007.
Affiliated Computer Services, Inc. -- http://www.acs-inc.com--provides
business process outsourcing and information technology services to
commercial and government clients.
AMC ENTERTAINMENT: Continues to Face Cal. FACTA Violations Suit
---------------------------------------------------------------
AMC Entertainment, Inc. continues to face a purported class action alleging
violations of the Fair and Accurate Credit Transaction Act.
The suit, “Michael Bateman v. American Multi-Cinema, Inc. (No. CV07-00171,”
was filed in the U.S. District Court for the Central District of California
on January 2007.
FACTA provides in part that neither expiration dates nor more than the last 5
numbers of a credit or debit card may be printed on electronic receipts given
to customers.
It imposes significant penalties upon violators where the violation is deemed
to have been willful. Otherwise damages are limited to actual losses
incurred by the cardholder.
The company reported no development in the case at its Sept. 12 regulatory
filing.
The suit is "Michael Bateman v. Regal Cinemas Inc. et al., Case No. 2:07-cv-
00052-GAF-FMO," filed in the U.S. District Court for the Central District of
California under Judge Gary A. Feess with referral to Judge Fernando M.
Olguin.
Representing the plaintiffs are:
Gregory N. Karasik, Esq.
Ira Spiro, Esq.
Spiro Moss Barness
11377 West Olympic Boulevard, 5th Floor
Los Angeles, CA 90064
Phone: 310-235-2468
E-mail: greg@spirmoss.com
ira@spiromoss.com
Representing the defendants is:
David E. Novitskim, Esq.
Thelen Reid Brown Raymans and Steiner
333 South Hope Street, Suite 2900
Los Angeles, CA 90071-3048
Phone: 213-576-8097
Fax: 213-576-8080
BLUE CROSS: Nov. 14 Hearing Set for $131M “Love” Suit Settlement
---------------------------------------------------------------
The U.S. District Court for the Southern District of Florida will hold a
fairness hearing on Nov. 14, 2007 at 10:00 a.m. for the proposed $131,209,507
settlement in the matter: “Love, et al. v. Blue Cross and Blue Shield
Association, et al. Case No. Case No. 03-21296,” formerly, “Thomas, et al. v.
Blue Cross and Blue Shield Ass'n, et al.”
The hearing will be held at the U.S. Courthouse, Courtroom IV, Tenth Floor,
Federal Justice Building, 99 Northeast Fourth St., Miami, Florida 33132.
Any objection to the settlement must be made on or before Oct. 1, 2007.
Deadline for the submission of a claim form is on Oct. 19, 2007.
Case Background
In general, the lawsuit alleges that between 1999 and the present defendants
engaged in a conspiracy to improperly deny, delay, and/or reduce payments to
physicians, physician groups, and physician organizations by engaging in
several types of allegedly improper conduct, including but not limited to:
-- Misrepresenting and/or failing to disclose the use of
edits to unilaterally “bundle,” “downcode,” and/or
reject claims for medically necessary covered
services;
-- Failing to pay for “medically necessary” services in
accordance with member plan documents;
-- Failing and/or refusing to recognize CPT® modifiers;
-- Concealing and/or misrepresenting the use of improper
guidelines and criteria to deny, delay, and/or reduce
payment for medically necessary covered services;
-- Misrepresenting and/or refusing to disclose applicable
fee schedules; and
-- Failing to pay claims for medically necessary covered
services within the required statutory and/or
contractual time periods.
It specifically claims that the violated the federal statute called the
Racketeer Influenced and Corrupt Organizations Act (RICO).
Settlement Terms
Under the settlement defendants have agreed to make a settlement payment of
$131,209,507 which, together with accrued interest from June 30, 2007, will
be distributed to physicians who are class members and who timely file a
Claim Form.
Additionally under the settlement, defendants agreed to commitments regarding
their business practices.
The Blue Cross and Blue Shield Plans and their current and former
subsidiaries and affiliates involved in the proposed settlement are:
-- Blue Cross and Blue Shield of Alabama,
-- Premera,
-- Premera Blue Cross,
-- PremeraFirst, Inc.,
-- LifeWise Health Plan of Washington,
-- LifeWise Health Plan of Oregon,
-- LifeWise Health Plan of Arizona, Inc.,
-- Premera Blue Cross Blue Shield of Alaska, Corp.,
-- Medical Services Corporation of Eastern Washington,
-- NorthStar Administrators, Inc.,
-- CareFirst, Inc.,
-- Group Hospitalization and Medical Services, Inc.,
-- Access America, Inc.,
-- The GHMSI Companies, Inc.,
-- CareFirst BlueChoice, Inc.,
-- Capital Care, Inc.,
-- CareFirst of Maryland, Inc.,
-- CFS Health Group, Inc.,
-- Blue Cross and Blue Shield of Florida, Inc.,
-- Health Options, Inc.,
-- Hawaii Medical Service Association,
-- The Regence Group,
-- Regence BlueShield of Idaho, Inc.,
-- Regence BlueCross BlueShield of Utah,
-- Regence BlueCross BlueShield of Oregon,
-- Regence BlueShield,
-- Regence Life and Health Insurance Company,
-- RegenceCare,
-- Regence HMO Oregon,
-- Regence Health Maintenance of Oregon, Inc.,
-- Healthwise,
-- Asuris Northwest Health, Wellmark, Inc. d/b/a Wellmark
Blue Cross and Blue Shield of Iowa,
-- Wellmark Health Plan of Iowa, Inc.,
-- Wellmark Community Insurance, Inc.,
-- Wellmark of South Dakota, Inc. d/b/a Wellmark Blue
Cross and Blue Shield of South Dakota
-- Louisiana Health Service & Indemnity Company d/b/a
Blue Cross and Blue Shield of Louisiana,
-- HMO Louisiana, Inc.,
-- Blue Cross and Blue Shield of Massachusetts, Inc.,
-- Blue Cross and Blue Shield of Massachusetts HMO Blue,
Inc.,
-- Blue Cross Blue Shield of Michigan,
-- BCBSM, Inc. d/b/a BlueCross BlueShield of Minnesota,
-- HMO Minnesota d/b/a Blue Plus,
-- Comprehensive Care Services, Inc.,
-- Blue Cross & Blue Shield of Mississippi,
-- HMO of Mississippi, Inc.,
-- Blue Cross and Blue Shield of Montana, Inc.,
-- Horizon Healthcare Services, Inc. d/b/a Horizon Blue
Cross Blue Shield of New Jersey,
-- Horizon Healthcare Plan Holding Company, Inc.,
-- Horizon Healthcare Insurance Company of New York,
-- Horizon Healthcare of New Jersey, Inc.,
-- Horizon Healthcare of New York, Inc.,
-- Enterprise Holding Company, Inc.,
-- AtlantiCare Administrators, Inc.,
-- Horizon Healthcare Administrators, Inc.,
-- Horizon AtlantiCare LLC, Horizon Healthcare of
Delaware, Inc.,
-- NASCO of New Jersey, Inc.,
-- Empire HealthChoice Assurance, Inc., d/b/a Empire Blue
Cross Blue Shield,
-- Empire HealthChoice HMO, Inc.,
-- WellChoice Insurance of New Jersey, Inc.,
-- WellChoice Holdings of New York, Inc.,
-- WellPoint Holding Corp.,
-- Blue Cross and Blue Shield of North Carolina,
-- Hospital Service Association of Northeastern
Pennsylvania,
-- HMO of Northeastern Pennsylvania,
-- Independence Blue Cross,
-- AmeriHealth HMO, Inc.,
-- La Cruz Azul de Puerto Rico,
-- Keystone Health Plan East, Inc.,
-- Triple-S, Inc.
-- Triple-S, Inc. of Puerto Rico,
-- Triple-C, Inc.,
-- Blue Cross Blue Shield of Rhode Island,
-- Blue Cross and Blue Shield of South Carolina,
-- BlueChoice HealthPlan of South Carolina, Inc. f/k/a
Companion HealthCare Corporation,
-- Planned Administrators, Inc.,
-- Thomas H. Cooper & Co., Inc.,
-- BlueCross BlueShield of Tennessee, Inc.,
-- Tennessee Health Care Network, Inc.,
-- Health Care Service Corporation,
-- Group Health Maintenance Organization, Inc. d/b/a
Bluelincs HMO,
-- Group Health Service of Oklahoma, Inc. d/b/a Blue
Cross Blue Shield of Oklahoma,
-- HMO New Mexico, Inc.,
-- New Mexico Blue Cross and Blue Shield, Inc. d/b/a Blue
Cross and Blue Shield of New Mexico,
-- New Mexico Blue Cross and Blue Shield, Inc.,
-- Hallmark Services Corporation,
-- BCI HMO, Inc., and
-- HCSC Insurance Services Corporation.
A copy of the Settlement Notice is available free of charge at:
http://researcharchives.com/t/s?23a2
For more details, contact:
Settlement Administrator
PO Box 4349
Portland, OR 97208-4349
Phone: (877) 893-2643
E-mail: http://www.bcbsphysiciansettlement.com/
Edith M. Kallas, Esq.
1540 Broadway, 37th Floor
New York, New York 10036
Phone: 212-447-7070
Fax: 212-447-7077
E-mail: ekallas@whatleydrake.com
Web site: http://www.whatleydrake.com
- and -
Law Offices of Archie Lamb, LLC
2017 2nd Avenue
Birmingham, Alabama 35203
Phone: 205-324-4644 or (Toll Free) 800-324-4425
Fax: 205-324-4649
Web site: http://www.archielamb.com
CAR MANUFACTURERS: Face Canadian Suit Over Alleged Price-Fixing
---------------------------------------------------------------
The law offices of Juroviesky and Ricci LLP filed a class action in the
Ontario Superior Court of Justice against major automobile manufacturers,
currently including, the North American operations of:
-- Honda,
-- General Motors,
-- Chrysler, and
-- Nissan.
The suit also extends to certain North American dealer organizations, namely,
The Canadian Automobile Dealers Association and The National Automobile
Dealers Association.
The suit claims that the Defendants conspired to artificially enhance the
price of automobiles to the Canadian consumer through a variety of carefully
orchestrated business practices in violation of a variety of statutes
including the Competition Act, and the various provincial Consumer Protection
Acts.
Additionally, the suit alleges the commission of certain common law torts.
The class includes all persons resident in Canada that purchased or leased an
automobile (or intended to do so) from one or more of the Defendants, in
Canada.
For more information, contact:
Henry Juroviesky
Juroviesky and Ricci LLP
Tel: (416) 481-0718
Fax: (416) 481-1792
Email: info@jrclassactions.com
CORINTHIAN COLLEGES: Seeks Arbitration for Accreditation Suits
--------------------------------------------------------------
Corinthian Colleges, Inc. continues to seek arbitration in several lawsuits
regarding the status of its accreditation with other colleges.
On March 8, 2004, the company was served with two virtually identical
putative class-action complaints:
-- "Travis v. Rhodes Colleges, Inc., Corinthian Colleges,
Inc.," and
-- "Florida Metropolitan University, and Satz v. Rhodes
Colleges, Inc., Corinthian Colleges, Inc., and Florida
Metropolitan University."
On April 15, 2005, the company received another complaint:
-- "Alan Alvarez, et al. v. Rhodes Colleges, Inc.,
Corinthian Colleges, Inc., and Florida Metropolitan
University, Inc."
The Alvarez first amended and supplemental complaint named ninety-nine
plaintiffs. Additionally, the court in the Alvarez case granted the
plaintiffs’ motion to add an additional seven plaintiffs to the first amended
and supplemental complaint.
The named plaintiffs in these lawsuits are current and former students in the
Company’s Florida Metropolitan University (FMU) campuses in Florida and
online.
The plaintiffs allege that FMU concealed the fact that it is not accredited
by the Commission on Colleges of the Southern Association of Colleges and
Schools and that FMU credits are not transferable to other institutions.
The Satz and Travis plaintiffs seek recovery of compensatory damages and
attorneys’ fees under common law and Florida’s Deceptive and Unfair Trade
Practices Act for themselves and all similarly situated people.
The Alvarez plaintiffs seek damages on behalf of themselves under common law
and Florida’s Deceptive and Unfair Trade Practices Act.
The arbitrator in the Satz case found for the Company on all counts in an
award on the Company’s motion to dismiss.
The arbitrator also found that Satz breached his agreement with FMU by filing
in court rather than seeking arbitration and is therefore responsible to pay
FMU’s damages associated with compelling the action to arbitration.
The arbitrator also declared FMU the prevailing party for purposes of the
Deceptive and Unfair Trade Practices Act.
The Company is continuing to pursue its remedies against Satz related to
these findings.
The Company has filed motions to compel arbitration in Alvarez, and the
Travis court compelled that case to arbitration. It reported no development
in the case at its Aug. 29, 2007 Form 10-K filing with the U.S. Securities
and Exchange Commission for the fiscal year ended June 30, 2007
Corinthian Colleges, Inc. -- http://www.cci.edu-- is a for-profit, post-
secondary education companies in the U.S. and Canada, with more than 64,500
students enrolled as of June 30, 2006. It offers a variety of diploma
programs and associate's, bachelor's and master's degrees through five
operating divisions in the U.S. and Canada.
FINANCIAL FREEDOM: Accused of Fraud in Reverse Mortgage Loans
-------------------------------------------------------------
Financial Freedom Senior Funding Corp. is facing a class-action complaint
filed in the U.S. District Court for the District of Minnesota accusing it of
deceiving and financially abusing old people in reverse mortgage loans, the
CourtHouse News Service reports.
A reverse mortgage is a type of home equity loan that allows senior
homeowners to convert home equity into cash, while allowing them to retain
ownership and not make immediate repayments.
The Irvine, Calif.-based company does nearly $3 billion in reverse mortgages
annually, in 49 states and the District of Columbia, the complaint states.
It is accused of knowingly charging illegal initial mortgage insurance
premium fees that exceed 2 percent of the loan, using its superior knowledge
to shake down old people, and fraudulently concealing its machinations.
This class action challenges defendant's overcharging of senior citizens in
connection with defendant’s reverse mortgage loans. It claims defendant
saddles senior citizens such as plaintiff with overpriced reverse mortgage
loans in violation of state and federal law. Among other things, defendant
has charged senior citizens excessive premium fees for mortgage insurance in
connection with the reverse mortgages defendant originates, structures and/or
underwrites. Those premium fees are unalwful and unfair.
Plaintiff brings this action on behalf of all persons who, within the
applicable statute of limitations and while 62 years of age or older,
obtained a reverse mortgage loan structured, originated and/or underwritten
by Financial Freedom and from whom Financial Freedom collected initial
mortgage insurance premium fees in excess of those authorized by 24 C.F.R.
Section 206.
They want the court to rule on:
(a) whether defendant improperly structured, underwrote
and/or originated reverse mortgage loans to senior
citizens, including plaintiff and the class;
(b) whether defendant committed elder abuse as defined in
California Welfare and Institutions Code Section 15600
et seq. (or in the alternative, as defined in Minn.
Stat.Ann. Sections 325D.43 et. seq. and Minn. Stat.Ann
Sections 325F.68 et seq.);
(c) whether defendant unfair, unlawful and/or fraudulent
business practices in violation of California Business
and Professions Code Section 17200 in its underwriting
structuring and/or origination of reverse mortgage
loans to senior citizens, violations of Minn. Stat.
Ann. Sections 325D.43 et seq. and Minn. Stat.Ann.
Section 325F.68 et seq.);
(d) whether defendant fraudulently concealed information
about reverse mortgages from plaintiff and the class in
violation of California law;
(e) whether defendant has violated California Civil Code
Section 1750 (Consumer Legal Remedies Act);
(f) whether defendant has violated California Civil Code
Section 1710 et seq. (fraudulent concealment);
(g) whether defendant has acted negligently with respect to
plaintiff and the nationwide class (or in the
alternative, whether defendant has acted negligently
with respect to plaintiff and other Minnesota borrowers
with reverse loans originated, structured and/or
underwritten by defendant);
(h) whether defendant has been unjustly enriched at the
expense of the nationwide class (or, in the
alternative, whether defendant has been unjustly
enriched at the expense of Minnesota borrowers with
reverse loans originated, structured and/or
underwritten by defendant);
(i) whether plaintiff and members of the class have
sustained damages;
(j) whether plaintiff and the class are entitled to
damages; and
(k) whether the class is entitled to injunctive,
declaratory and/or other relief.
Plaintiff prays for judgment as follows:
-- for an order certifying a nationwide class against
defendant on account of defendant's systemic, unlawful
and unfair practices - or, in the alternative, an order
certifying a Minnesota-wide class on account of same;
-- for a temporary, preliminary and permanent order for
injunctive relief enjoining defendant from pursuing the
practices complained of;
-- imposition of a constructive trust, an order granting
recessionary and injunctive relief and/or such other
equitable relief, including restitution, disgorgement
of ill-gotten profits as set forth and as the court
deems just and proper;
-- assuming later certification of this action as a class
action under California Code of Civil Procedure Section
382, for distribution of any moneys recovered on behalf
of the class, via fluid recovery or cy pres recovery
where necessary to prevent defendant from retaining any
of the profits or benefits of its wrongful conduct (or,
in the alternative, similar relief under Minnesota
law);
-- for compensatory, special and general damages according
to proof;
-- for punitive and exemplary damages under Cal.Civ.Code
Section 3294, California civil Code Section 1780(a)(4)
and Welfare and Institutions Code Section 15657.5 et
seq. (or in the alternative, similar damages under
Minn.Stat.Ann. Section 325.D43 et seq. and
Minn.Stat.Ann. Section 325F.68 et seq.);
-- for double damages under Cal.Prob.Code Section 859;
-- for transfer of the wrongfully obtained monies and/or
property under Cal.Prob.Code Section 850-859 et seq.;
-- for reasonable attorneys' fees and costs of
investigation and litigation under, among other
statutes, Cal.Code Civ.Pro. Section 1021.5 and
2033.420; and Cal.Welf.&Inst. under Minn.Stat.Ann.
Section 325.D43 et seq. and Minn.Stat.Ann. Section
325.F68 et seq.);
-- for costs of suit, pre-judgment, and post-judgment
interest; and
-- such other and further relief as the court may deem
necessary or appropriate.
The suit is "Betty M. Peterson, et al. v. Financial Freedom Senior Funding
Corp.," filed in the U.S. District Court for the District of Minnesota.
Representing plaintiffs are:
Barbara A. Bagdon
Dady & Garner, P.A.
80 S. Eighth St., 5100 IDS Center
Minneapolis, MN 55402
Phone: (612) 359-5495
Fax: (615) 359-3507
Andrew S. Friedman
Garrett W. Wotkyns
Bonnett, Fairbourn, Friedman & Balint, PC
2910 N. Central Avenue, Suite 1000
Phoenix, AZ 85012
Phone: (602) 274-1100
Fax: (602) 274-1199
- and -
Ingrid M. Evans
Renne Sloan Holztman Sakai LLP
350 Sansome Street, Suite 300
Phone: (415) 678-3800
Fax: (415) 678-3838
GUIDECRAFT INC: Recalls Puppet Theaters on High Lead Levels
-----------------------------------------------------------
Guidecraft Inc., of Englewood, New Jersey, in cooperation with the U.S.
Consumer Product Safety Commission, is recalling about 10,000 Floor Puppet
Theaters.
The company said the surface paints on the puppet theater’s wooden panels
contain excessive levels of lead, violating the federal lead paint standard.
No injuries have been reported.
The recalled puppet theater has a chalkboard surface on the front and colored
side panels. The puppet theater measures about 35 inches in length, 14 inches
in width and about 52 inches in height.
These recalled puppet theaters were manufactured in China and are being sold
at specialty toy stores, gift shops, catalogs and Web sites nationwide from
June 2006 through August 2007 for about $90.
Picture of recalled puppet theaters:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07312.jpg
Consumers are advised to immediately take the recalled puppet theaters away
from children and contact Guidecraft to receive a replacement theater or
another product of equal value.
For additional information, contact Guidecraft toll-free at (888) 824-1308
between 9 a.m. and 5 p.m. CT Monday through Friday, or visit the firm’s Web
site: http://www.guidecraft.com
JOHNSON & JOHNSON: Denial of Class Certification Motion Appealed
----------------------------------------------------------------
Plaintiffs in a discrimination suit against Johnson & Johnson are seeking to
appeal a ruling denying a motion to certify the case as a class action.
In 2001, a lawsuit was filed against Johnson & Johnson claiming the company
discriminated against black and Hispanic managers and other salaried
employees.
Named plaintiffs in the suit are:
-- Nilda Gutierrez;
-- Linda Morgan, a former engineer at Johnson & Johnson's
Ethicon subsidiary;
-- Wayne Brown, a former security supervisor; and
-- Krista Marshall, a former production supervisor.
Plaintiffs claim pay discrimination against Hispanic employees, and both pay
and promotion bias against blacks.
In September 2004, plaintiffs moved to certify a class of all African
American and Hispanic salaried employees of the Company and its affiliates in
the U.S., who were employed at any time from November 1997 to the present.
Plaintiffs sought monetary damages for the period 1997 through the present
(including punitive damages) and equitable relief. The Court denied
plaintiffs' class certification motion in December 2006 and their motion for
reconsideration in April 2007.
Plaintiffs are seeking to appeal these decisions, according to Johnson &
Johnson’s Aug. 8 form 10-Q regulatory filing for the period ended July 1,
2007.
The suit is "Guitierrez, et al v. Johnson & Johnson, Case No.
2:01-cv-05302-WHW-RJH," filed in the U.S. District Court for the District of
New Jersey under Judge William H. Walls, with referral to Judge Ronald J.
Hedges.
Representing the defendants are:
Francis X. Dee, Esq.
McElroy, Deutsch, Mulvaney, & Carpenter, LLP
Three Gateway Center, 100 Mulberry Street
Newark, NJ 07102-4079
Phone: (973) 622-7711
E-mail: fdee@mdmc-law.com
-- and –
Theodore V. Wells, Jr., Esq.
Paul, Weiss, Rifkind, Wharton, & Garrison, LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Phone: (212) 373-3000
E-mail: twells@paulweiss.com
Representing plaintiffs are:
Scott A. George of Sheller, Esq.
Ludwig & Sheller, P.C.
One Greentree Centre
Route 73 & Greentree Road, Suite 201
Marlton, NJ 08053
Phone: (856) 988-5590
E-mail: sgeorge@sheller.com
Nicholas H. Politan, Esq.
Nicholas Politan Law Offices
5 Becker Farm Road, Fourth Floor, Roseland, NJ 07068
Phone: (973) 994-4740
Fax: (973) 994-4755
-- and --
Bennet Dann Zurofsky, Esq.
Reitman Parsonnet
744 Broad Street, Suite 1807, Newark, NJ 07102
Phone: (973) 642-0885
E-mail: bzurofsky@reitpar.com
JOHNSON & JOHNSON: Dismissed from Class 2, 3 Claims in AWP Suit
---------------------------------------------------------------
The Multi-District Litigation Federal District Court in Boston, Massachusetts
dismissed Johnson & Johnson from claims of certain classes of individuals in
the litigation related to the inflation Average Wholesale Price of certain
drugs.
Johnson & Johnson and several of its pharmaceutical subsidiaries, along with
numerous other pharmaceutical companies, are defendants in a series of
lawsuits in state and federal courts involving allegations that the pricing
and marketing of certain pharmaceutical products amounted to fraudulent and
otherwise actionable conduct because, among other things, the companies
allegedly reported an inflated AWP for the drugs at issue.
Most of these cases, both federal actions and state actions removed to
federal court, have been consolidated for pre-trial purposes in an MDL in
Federal District Court in Boston, Massachusetts. The plaintiffs in these
cases include classes of private persons or entities that paid for any
portion of the purchase of the drugs at issue based on AWP, and state
government entities that made Medicaid payments for the drugs at issue based
on AWP.
The MDL Court identified classes of Massachusetts-only private insurers
providing "Medi-gap" insurance coverage and private payers for physician-
administered drugs where payments were based on AWP (Class 2 and Class 3),
and a national class of individuals who made co-payments for physician-
administered drugs covered by Medicare (Class 1).
A trial of the two Massachusetts-only class actions concluded before the MDL
Court in December 2006. On June 21, 2007, the MDL
Court issued post-trial rulings, dismissing the Johnson & Johnson defendants
from the case regarding all claims of Classes 2 and 3.
The MDL Court subsequently indicated it would dismiss against the Johnson &
Johnson defendants all claims by the Class 1 plaintiffs as well. Trial in the
action brought by the Attorney General of the State of Alabama making
allegations related to AWP is set for the first quarter of 2008.
Additional AWP cases brought by various Attorneys General are expected to be
set for trial in 2008.
Johnson & Johnson -- http://www.jnj.com-- is engaged in the research and
development, manufacture and sale of a range of products in the healthcare
field. Johnson & Johnson has more than 250 operating companies.
JOHNSON & JOHNSON: Still Faces Endo-Mechanical Devices Suits
-------------------------------------------------------------
Johnson & Johnson, along with its wholly owned Ethicon and
Ethicon Endo-Surgery subsidiaries, remains a defendant in several federal
suits pending in California relating to endo-mechanical devices contracts.
In late December 2005 and early 2006, three purported class actions were
filed on behalf of purchasers of endo-mechanical instruments against the
Company and its wholly-owned subsidiaries, Ethicon, Inc., Ethicon Endo-
Surgery, Inc., and Johnson & Johnson Health Care Systems, Inc.
These challenge suture and endo-mechanical contracts with Group Purchasing
Organizations and hospitals, in which discounts are predicated on a hospital
achieving specified market share targets for both categories of products.
These actions have been filed in the Federal District Court for the Central
District of California.
The class actions filed in December 2005 are:
-- "Delaware Valley Surgical Supply Co., Inc. v. Johnson &
Johnson et al.;" and
-- "Niagara Falls Memorial Medical Center v. Johnson &
Johnson, et al."
The company reported no update on the cases at its Aug. 8 form 10-Q
regulatory filing for the period ended July 1, 2007.
KINDER MORGAN: Wins Favorable Order in CO2 Committee Arbitration
----------------------------------------------------------------
The New Mexico federal court entered a final judgment confirming that
defendants in a suit over alleged royalties underpayments in the McElmo Dome
Unit source field located in southwest Colorado did not breach settlement
agreement.
Cortez Pipeline Company and Kinder Morgan CO2 Co. L.P., successor to Shell
CO2 Company, Ltd., were among the named defendants in “CO2 Committee, Inc. v.
Shell Oil Co., et al.,” an arbitration initiated on November 28, 2005.
The arbitration arose from a dispute over a class action settlement agreement
which became final on July 7, 2003 and disposed of five lawsuits formerly
pending in the U.S. District Court, District of Colorado.
The plaintiffs in such lawsuits primarily included overriding royalty
interest owners, royalty interest owners, and small share working interest
owners who alleged underpayment of royalties and other payments on carbon
dioxide produced from the McElmo Dome Unit. The settlement imposed certain
future obligations on the defendants in the underlying litigation. The
plaintiff in the arbitration is an entity that was formed as part of the
settlement for the purpose of monitoring compliance with the obligations
imposed by the settlement agreement.
The plaintiff alleged that, in calculating royalty and other payments,
defendants used a transportation expense in excess of what is allowed by the
settlement agreement, thereby causing alleged underpayments of approximately
$12 million. The plaintiff also alleged that Cortez Pipeline Company should
have used certain funds to further reduce its debt, which, in turn, would
have allegedly increased the value of royalty and other payments by
approximately $0.5 million
Defendants denied that there was any breach of the settlement agreement.
On August 7, 2006, the arbitration panel issued its opinion finding that
defendants did not breach the settlement agreement. On October 25, 2006, the
defendants filed an application to confirm the arbitration decision in New
Mexico federal district court.
On June 21, 2007, the New Mexico federal district court entered final
judgment confirming the August 7, 2006 arbitration decision.
KINDER MORGAN: Seeks High Court Review in “J. Casper Heimann”
-------------------------------------------------------------
Kinder Morgan CO2 Co. LP intends to file a petition for certiorari with the
United States Supreme Court seeking further review of a court order denying
its motion to compel arbitration in a suit alleging it breached settlement
agreement in “Doris Feerer, et al. v. Amoco Production Company, et al.”
Kinder Morgan CO2 Co. is facing a suit (No. 04-26-CL) filed in the 8th
Judicial District Court, Union County New Mexico by J. Casper Heimann, Pecos
Slope Royalty Trust and Rio Petro Ltd., individually and on behalf of all
other private royalty and overriding royalty owners in the Bravo Dome Carbon
Dioxide Unit, New Mexico.
This case involves a purported class action against Kinder Morgan CO2
alleging that it has failed to pay the full royalty and overriding royalty on
the true and proper settlement value of compressed carbon dioxide produced
from the Bravo Dome Unit in the period beginning January 1, 2000. The
complaint purports to assert claims for violation of the New Mexico Unfair
Practices Act, constructive fraud, breach of contract and of the covenant of
good faith and fair dealing, breach of the implied covenant to market, and
claims for an accounting, unjust enrichment, and injunctive relief.
The purported class is comprised of current and former owners, during the
period January 2000 to the present, who have private property royalty
interests burdening the oil and gas leases held by the defendant, excluding
the Commissioner of Public Lands, the United States of America, and those
private royalty interests that are not unitized as part of the Bravo Dome
Unit.
The plaintiffs allege that they were members of a class previously certified
as a class action by the United States District Court for the District of New
Mexico in the matter “Doris Feerer, et al. v. Amoco Production Company, et
al., USDC N.M. Civ. No. 95-0012.”
Plaintiffs allege that Kinder Morgan CO2’s method of paying royalty interests
is contrary to the settlement of the Feerer Class Action. Kinder Morgan CO2
filed a motion to compel arbitration of this matter pursuant to the
arbitration provisions contained in the Feerer Class Action settlement
agreement, which motion was denied.
Kinder Morgan CO2 appealed this decision to the New Mexico Court of Appeals,
which affirmed the decision of the trial court. The New Mexico Supreme Court
granted further review in October 2006, and after hearing oral argument, the
New Mexico Supreme Court quashed its prior order granting review.
Kinder Morgan CO2 had said it intends to file a petition for certiorari with
the United States Supreme Court seeking further review.
MISSOURI: Eight Circuit Hears Appeal on Inmates' Abortion Case
--------------------------------------------------------------
The 8th U.S. Circuit Court of Appeals heard oral arguments in a class action
challenging Missouri's policy banning inmates from obtaining non-medically
necessary abortions, reports say.
The suit was originally brought by an inmate plaintiff known as "Jane Roe,"
who was denied an abortion in 2005. Before that, the Missouri Department of
Corrections had provided transportation for women seeking an abortion, but
amended their policy to do so if the abortion is not medically necessary.
The American Civil Liberties Union filed the suit on behalf of “Jane Roe.”
U.S. District Judge Dean Whipple in Jefferson ordered officials granted her
request on the same year she filed the case.
The office of the Attorney General, on behalf of the Department of
Corrections, appealed Judge Whipple's order up to the U.S. Supreme Court.
The Supreme Court upheld the district court's ruling. In 2006, Judge Whipple
upheld his preliminary injunction. He ruled that women prisoners maintain
their constitutional right to abortion and that prison officials must provide
access to the procedure. The Attorney General appealed again.
Assistant Attorney General Michael Pritchard argued for the state. He said
the prison officials' primary concern is with the safety of prisoners, guards
and the public because the trip to the hospital poses an increase risk of
inmate escape.
Some of the hearing focused on whether there is a difference between taking
an inmate out of prison or to a hospital or court, and whether an abortion
costs the state more than a birth, according to Robert Patrick of the St.
Louis Post-Dispatch.
A decision could take months, according to reports.
The suit is "Roe v. Crawford et al., Case No. 2:05-cv-04333-DW," filed in the
U.S. District Court for the Western District of Missouri under Judge Dean
Whipple.
Representing the plaintiffs are:
Thomas Michael Blumenthal, Esq.
Paule Camazine & Blumenthal, PC
165 N. Meramec Ave., 6th Floor
St. Louis, MO 63105-3789
Phone: 314-727-2266
Fax: 314-727-2101
E-mail: tblumenthal@pcblawfirm.com
Talcott Camp, Esq.
Diana Kasdan, Esq.
Jennifer Nevins, Esq.
Chakshu Patel, Esq.
American Civil Liberties Union Foundation
125 Broad St., 18th Floor
New York, NY 10004-2427
Phone: (212) 549-2632
Fax: (212) 549-2652
E-mail: tcamp@aclu.org
dkasdan@aclu.org
jnevins@aclu.org
cpatel@aclu.org
- and -
James G. Felakos, Esq.
American Civil Liberties Union of Eastern Missouri
4557 Laclede Ave.
St. Louis, MO 63108
Phone: (314) 361-3635
Fax: (314) 361-3135
E-mail: jim@aclu-em.org
Representing the defendant is:
Michael Pritchett, Esq.
Missouri Attorney General
P.O. Box 899
Jefferson City, MO 65102
Phone: 573-751-8864
Fax: (573) 751-9456
E-mail: mike.pritchett@ago.mo.gov
NATIONWIDE MUTUAL: Investigators File Suit Over FLSA Violations
---------------------------------------------------------------
The law firm of Nichols Kaster & Anderson, PLLP filed, on behalf of special
investigators, a putative collective action against Nationwide Mutual
Insurance Company in the Northern District of California on Sept. 21.
The lawsuit, filed September 21, 2007, alleges that Nationwide violated the
federal Fair Labor Standards Act and California state law by misclassifying
special investigators and senior special investigators as salaried exempt
employees and thereby denying these employees overtime compensation and
proper meal and rest breaks.
The lawsuit was brought by two special investigators who worked for
Nationwide in California and Arkansas. They brought the action as a
nationwide collective action and California class action on behalf of
themselves and other similarly situated employees.
Plaintiffs in the suit are Frank Foster and Phillip Wamock.
Plaintiffs' attorney Matt Morgan explained, "This does not appear to be an
isolated incident of not paying overtime to a few individuals in one
location. The company made a decision that special investigators should not
be paid for every hour they worked. We believe this decision runs afoul of
the law."
Nationwide is a national insurance and financial services company and employs
special investigators across the country.
The suit is “Foster et al. v. Nationwide Mutual Insurance Co., Case No.
3:2007cv04928,” filed in the U.S. District Court for the Northern District
Court of California under
Judge Susan Illston.
For more information, contact:
Matt Morgan
Nichols Kaster & Anderson
4600 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Phone: 612-256-3243 or 612.256.3200
Toll-Free: 877.448.0492
Fax: 612.338.4878
Email: intake@nka.com
Website: http://www.overtimecases.com/contact.aspx
NORDSTROM INC: 9th Circuit Affirms Dismissal of Antitrust Suit
--------------------------------------------------------------
The U.S. Court of Appeals for the 9th Circuit affirmed an approval of a
settlement of the California antitrust class action, "Azizian, et al. v.
Federated Department Stores, Inc., et al.," in which Nordstrom, Inc. is a
defendant.
Initially, the company was named as a defendant along with other department
stores and specialty retailers in nine separate, but virtually identical
class actions filed in various Superior Courts of the state of California in
May, June and July 1998. The suits were consolidated in Marin County
Superior Court.
In May 2000, plaintiffs filed an amended complaint naming a number of
manufacturers of cosmetics and fragrances and two other retailers as
additional defendants.
Plaintiffs' amended complaint alleged that the retailer and manufacturer
defendants in violation of the Cartwright Act and the California Unfair
Competition Act collusively controlled the retail price of the "prestige"
or "Department Store" cosmetics and fragrances sold in department and
specialty stores.
Plaintiffs sought treble damages and restitution in an unspecified amount,
attorneys' fees and prejudgment interest, on behalf of a class of all
California residents who purchased cosmetics and fragrances for personal use
from any of the defendants during the four years prior to the filing of the
original complaints.
While the company believes that the plaintiffs' claims are without merit, it
entered into a settlement agreement with the plaintiffs and the other
defendants on July 13, 2003 in order to avoid the cost and distraction of
protracted litigation.
In furtherance of the settlement agreement, the case was re-filed in the U.S.
District Court for the Northern District of California on behalf of a class
of all persons who currently reside in the U.S. and who purchased "Department
Store" cosmetics and fragrances from the defendants from May 29, 1994 through
July 16, 2003.
The court gave preliminary approval to the settlement, and a summary notice
of class certification and the terms of the settlement were disseminated to
class members.
On March 30, 2005, the court entered a final judgment approving the
settlement and dismissing the plaintiffs' claims and the claims of all class
members with prejudice, in their entirety.
On April 29, 2005, two class members who objected to the settlement filed
notices of appeal from the court's final judgment to the U.S. Court of
Appeals for the 9th Circuit.
One of the objectors has since dropped her appeal, but the other filed her
appeal brief on March 20, 2006. Plaintiffs' and defendants' briefs were
filed on May 25, 2006. The remaining objector filed her reply brief on June
14, 2006.
The Ninth Circuit heard oral arguments on the appeal on March 14, 2007 and
issued its decision on Aug. 23, 2007, affirming the District Court’s ruling,
according to the company's Sept. 12, 2007 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarterly period ended Aug. 4,
2007.
The suit is "Azizian, et al. v. Federated Department Stores, Inc., et al.,
Case No. 4:03-cv-03359," filed in the U.S. District Court for the Northern
District of California under Judge Saundra Brown Armstrong.
Representing the plaintiffs is:
Guido Saveri, Esq.
Saveri & Saveri, Inc.
111 Pine Street, Suite 1700
San Francisco, CA 94111-5630
Phone: 415-217-6810
Fax: 415-217-6813
E-mail: guido@saveri.com
Representing the company is:
Larry S. Gangnes, Esq.
1420 Fifth Avenue, Ste. 4100
Seattle, WA 98101-2338
Phone: (206) 223-7036
E-mail: gangnesl@lanepowell.com
PARTNER COMMUNICATIONS: Faces Lawsuit Over Unlawful SMS Charges
---------------------------------------------------------------
Partner Communications Company Ltd., a leading Israeli mobile communications
operator, announced that it was served on September 20, 2007, with a lawsuit
requesting certification as a class action.
The suit was filed against Partner and against two other cellular operators --
Cellcom Israel Ltd. and MIRS Communications -- in Israel in the District
Court of Jerusalem by plaintiffs claiming to be subscribers of the
Defendants, Globes Online reports.
The claim alleges that the Defendants charged consumers unlawfully, for SMS
messages sent to handsets which cannot receive such messages. Furthermore,
the claim alleges that the Defendants misled consumers who sent such
messages, as those consumers received an alert notifying that those messages
were sent.
According to the report, in 2005, cellular operates began marketing handsets,
nicknamed “kosher phones” to the haredi (ultra-orthodox) community. These
cellular telephones had a special prefix, which blocked SMS messages and
could not be used to surf the Internet.
The petitioners claim that the cellular operators are charging them for SMS
messages sent, but which they cannot receive. The plaintiffs say that they
receive notices about an incoming SMS, and are charged for an SMS message
even though they cannot read the messages.
Plaintiffs further claim that even though the operators know full well that
they - as kosher subscribers - cannot receive SMS messages, the operators are
not blocking the SMS service as Pele-Phone Communications Ltd. has done.
They claim that the operators are misleading them in two ways:
-- first, by notifying them that an SMS message has been
received when it has not, and
-- second, by charging them for the service.
If the lawsuit is certified as a class action, the total amount claimed from
the Defendants is estimated by the plaintiffs to be approximately $45.07
million (for all Defendants together).
Partner said it will contest this lawsuit vigorously. At this preliminary
stage, Partner is considering the merits of the claim and is unable to assess
the extent of the validity of the claim against it.
For more information contact:
Mr. Emanuel Avner - Chief Financial Officer
Mr. Oded Degany - Carrier, Investor and International
Relations
Partner Communications Company Ltd.
Tel: +972-54-7814951 or +972-54-7814151
Fax: +972-54-7815961 or +972-54 -7814161
E-mail: emanuel.avner@orange.co.il or
oded.degany@orange.co.il
Website: http://www.orange.co.il/investor_site/
RC2 CORP: Recalls More T&F Railway Toys Due to High Lead Levels
----------------------------------------------------------------
RC2 Corp. is voluntarily recalling five Thomas & Friends Wooden Railway items
due to levels of lead in surface paint that may exceed U.S. Consumer Product
Safety Commission requirements.
Since the Company's recall announced in June of 2007, more than 1,500
individual Thomas & Friends toy styles have been retested to ensure their
safety. This testing led to five additional discoveries that has prompted
this voluntary recall. In total, this recall affects up to 200,000 units in
the United States and an additional 69,000 units distributed outside the U.S.
There have been no reports of illness or injury related to any of the
recalled toys. The recalled toys were all manufactured before April 30, 2007.
"On behalf of everyone at RC2, let me personally apologize for the worry an
additional recall creates for parents everywhere," said Curt Stoelting, RC2's
chief executive officer. "We deeply regret the burden that recalling toys
creates for parents, but we believe parents should be assured of two things:
First, that the Thomas & Friends Wooden Railway toys they already have are
safe and, second, that the new toys in stores are safe."
The items subject to recall include two toy vehicles and three accessories:
-- The all-black cargo car included in the Brendam Fishing
Dock Set.
No other cargo cars are included in the recall, including all-black cargo
cars sold in sets other than the Brendam Fishing Dock Set. Recalled all-black
cargo cars from the Brendam Fishing Dock Set can be identified by either the
absence of a tracking code or one of the following tracking codes on the
car's underside.
26833i 24643i00 32043i00 04553i00 15453i00
28233i 25343i00 34743i00 13353i00 18353i00
23243i00 27443i00 01553i00 14753i00
-- A Toad vehicle with a brake lever, which can be
identified by a single tracking code, 1656OW00, on its
underside. No other Toad vehicles are included in the
recall, as each of these vehicles has a different
tracking code.
-- An olive green Sodor cargo box accessory included in the
Deluxe Cranky the Crane Set. This accessory did not in
the past carry a tracking code.
RC2 is asking consumers to return any olive green Sodor cargo box produced as
part of the Deluxe Cranky the Crane Set between January 2006 and December
2006. Current production of this accessory has a tracking code on the
underside and is not included in the recall. Therefore any olive green Sodor
cargo box with a tracking code on it is not subject to the recall. No other
Sodor cargo boxes are included in the recall, including those sold in sets
other than the Deluxe Cranky the Crane Set.
-- The all-green maple tree top and signal base accessories
included in the Conductor's Figure 8 Set. Because these
accessories did not in the past carry tracking codes,
RC2 is asking consumers to return any all-green maple
tree tops and signal bases produced as part of the
Conductor's Figure 8 Set from March 2006 to April 2007.
Current production of these accessories has tracking
codes and if the tree or signal base has a tracking code
on it then it is not included in the recall.
Parents and care givers are urged to immediately remove the recalled toys and
return them to RC2. Each consumer participating in the recall will receive a
replacement at no charge for each recalled toy that is returned and a free
gift.
For pre-paid shipping labels and help identifying and returning the recalled
toys, consumers are encouraged to visit RC2's recall website:
http://recalls.rc2.com.
Concerned parents may also email: recalls@rc2corp.com or call RC2's Consumer
Care Center toll-free at (866) 725-4407 for assistance in identifying and
returning the recalled toys.
"To assure that the toys families already have are safe, more than 1,500
individual Thomas & Friends Wooden Railway toy styles were retested," added
Mr. Stoelting. "By casting this wide net, we discovered that five additional
items were potentially unsafe, and they are being recalled today."
The Company worked in full cooperation with the U.S. Consumer Product Safety
Commission to voluntarily recall the five additional Thomas & Friends Wooden
Railway items.
"We've learned from our own experience and that of other toy companies and
have established significant additional safeguards to ensure that our toys
are safe," Stoelting said, "Since June, RC2 has instituted its Multi-Check
Toy Safety System to reduce potential future risks to children and preserve
parents' trust."
The Multi-Check Toy Safety System, which helps assure parents that new toys
are safe, includes:
-- Increased scope and frequency of testing of both
incoming materials and finished products, including
testing of finished products from every production run
-- Tougher certification program for contract manufacturers
and paint suppliers, including evidence that toy safety
standards and quality control procedures are in place
and operating effectively
-- Mandatory paint control procedures for contract
manufacturers, including certified independent lab test
results of every batch of wet paint before the paint is
released for production
-- Increased random inspections and audits of both
manufacturers and their suppliers, including semi-annual
audits and quarterly random inspections for key
suppliers
-- Zero tolerance for compromise on RC2 specifications
reinforced by mandatory vendor compliance seminars and
signed agreements
"And we're not finished. We know that every day we must earn the faith that
parents place in us and in the quality and safety of our toys. That's why we
will continue to look for and explore new ways to further improve the safety
of our toys," said Mr. Stoelting. "We take our toy safety responsibilities
very seriously and measure our success by the trust parents place in us and
in our toys. Many of us at RC2 are parents, so knowing that we're taking the
right steps to protect children is very important to us personally as well as
professionally."
Complete recall information and assistance in identifying the recalled toys
is available on RC2's recall website: http://recalls.rc2.comor from RC2's
Consumer Care Center, which can be reached toll-free at (866) 725-4407.
As part of its public outreach efforts, RC2 is notifying retailers to remove
the recalled items from their inventories and also is sending letters to
families who may have received one or more of the recalled items directly
from the Company.
REX ENERGY: Jury Trial in Ill. H2S Emissions Suit Set Aug. 2008
---------------------------------------------------------------
An August 18, 2008 jury trial is set in a putative class action filed against
Rex Energy Operating Corp. in the U.S. District Court for the Southern
District of Illinois over hydrogen sulfide emissions.
In general the suit is asserting that the operation of oil wells that are
controlled, owned or operated by the company has resulted in contamination of
the areas surrounding Bridgeport and Petrolia, Illinois, with hydrogen
sulfide, or H2S.
The complaint asserts several causes of action, including violation of the
Illinois Environmental Protection Act, negligence, private nuisance,
trespass, and willful and wanton misconduct.
The company has filed an answer to the complaint specifically denying
virtually all of the allegations in the complaint and asserting affirmative
defenses thereto.
The plaintiffs have filed a motion for class certification requesting that
the court certify the case as a class action.
On Jan. 26, 2007, the court issued a scheduling and discovery order stating
that the court will schedule a hearing on plaintiffs’ motion for class
certification after Aug. 31, 2007.
On Jan. 31, 2007, the plaintiffs filed a motion for leave seeking permission
to file an amended complaint that would add a claim against the defendants
for alleged violation of the Resource Conservation and Recovery Act, making
factual allegations similar to those previously asserted in the plaintiffs’
prior pleadings.
A final pretrial conference for this case has been set for Aug. 7, 2008, and
the case is scheduled for jury trial on Aug. 18, 2008, in the U.S. District
Court for the Southern District of Illinois.
The parties to this lawsuit have exchanged initial pretrial disclosures as
required under the applicable rules and each side has served and responded to
pre-deposition written discovery.
The suit is “Leib et al v. Rex Energy Operating Corp., Case No. 3:06-cv-
00802-JPG-CJP,” filed in the U.S. District Court for the Southern District of
New York under Judge J. Phil Gilbert with referral under Judge Clifford J.
Proud.
Representing the plaintiffs are:
Norman B. Berger, Esq.
Varga, Berger et al.
Cook County, 224 South Michigan Avenue, Suite 350
Chicago, IL 60604
Phone: 312-341-9870
Fax: 312-341-2900
E-mail: nberger@vblhc.com
- and -
Shawn M. Collins, Esq.
Collins Law Firm
Du Page County, 1770 North Park Street, Suite 200
Naperville, IL 60563
Phone: 630-527-1595
Fax: 630-527-1193
E-mail: smc@collinslaw.com
Representing the defendants are:
Kenneth R. Heineman, Esq.
Husch & Eppenberger
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
Phone: 314-480-1500
E-mail: kenneth.heineman@husch.com
- and -
Edward Lewis, Esq.
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, TX 77010-3095
Phone: 713-651-3760
Fax: 713-651-5246
E-mail: elewis@fulbright.com
SHENANDOAH VALLEY: Faces Wis. Lawsuit Alleging FCRA Violations
--------------------------------------------------------------
Shenandoah Valley National Bank, a subsidiary of Summit Financial Group,
Inc., continues to face a purported class action alleging violations of the
Federal Fair Credit Reporting Act, according to the company's Aug. 9, 2007
Form 10-Q Filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2007.
On Jan. 4, 2006, Mary Forrest, an individual, filed an alleged class action
in the U.S. District Court for the Eastern District of Wisconsin against the
company's subsidiary, Shenandoah Valley National Bank.
The suit claims that Shenandoah violated FCRA, alleging that Shenandoah used
information contained in their consumer reports, without extending a “firm
offer of credit” within the meaning of the FCRA.
In the Forrest case, responsive pleadings have been filed, written discovery
has been exchanged by the parties, and plaintiff’s deposition has been
taken.
Plaintiff moved to certify the case as a class action. Her motion was denied
on the ground that plaintiff is not an adequate class representative.
Plaintiff thereafter requested permission to appeal to the U.S. Court of
Appeals for the Seventh Circuit, and her request was denied.
Although the denial does not dispose of the certification issue with
finality, this is currently a single plaintiff case.
This case and certain other similar cases pending in the Eastern District of
Wisconsin were stayed awaiting a ruling from the U.S. Supreme Court on the
standard for determining what constitutes a “willful” violation under the
FCRA.
On June 4, 2007, the U.S. Supreme Court determined that willfulness under the
FCRA covers both knowing and reckless violations of the Act.
On June 19, 2007, the District Court lifted the stay.
The suit is “Forrest v. Shenandoah Valley National Bank, Case No. 2:06-cv-
00011-RTR,” filed in the U.S. District Court for the Eastern District of
Wisconsin under Judge Rudolph T. Randa.
Representing the plaintiff is:
John D. Blythin, Esq.
Ademi & O'Reilly LLP
3620 E Layton Ave
Cudahy, WI 53110
Phone: 414-482-8000
Fax: 414-482-8001
E-mail: jblythin@ademilaw.com
Representing the defendant is:
Michael J. Ganzer, Esq.
Hodan Doster & Ganzer
7161 N Port Washington Rd.
Milwaukee, WI 53217-3877
Phone: 414-351-9150
Fax: 414-352-6901
E-mail: mjg_hdgsc@sbcglobal.net
- and -
Eugene J Kelley, Jr., Esq.
Arnstein & Lehr LLP
120 S Riverside Plaza - Ste 1200
Chicago, IL 60606-3913
Phone: 312-876-7100
Fax: 312-876-0288
SPIRIT FINANCE: Yet to Reach Final Settlement in Merger Suits
-------------------------------------------------------------
Parties in class actions against Spirit Finance Corp. over a merger agreement
with Redford Merger Co. (MergerCo) have yet to enter into the Settlement
Stipulation for the matter.
On July 2, 2007, the holders of a majority of the outstanding shares of
common stock of Spirit Finance approved the merger of Spirit Finance with
MergerCo pursuant to the agreement and plan of merger, dated March 12, 2007,
among Redford Holdco, LLC, MergerCo and Spirit Finance.
On Aug. 1, 2007, the Merger was consummated and MergerCo was merged with and
into the Company, with Spirit Finance being the surviving company.
In connection with the Merger, the Company was served with two lawsuits filed
in Arizona and Maryland, each naming it and its directors and, in the case of
the Maryland action, also naming Macquarie Bank and Kaupthing Bank hf., as
defendants.
The complaints alleged, among other things, self-dealing and breach of
fiduciary duty against the individual directors based on the claim that the
consideration for the stockholders in the Merger was inadequate.
The complaints sought, among other relief, certification of the lawsuits as
class actions on behalf of all similarly situated stockholders.
Counsel for the defendants and the Arizona plaintiff have entered into a
Memorandum of Understanding that outlined a proposed settlement of the
Arizona and Maryland actions.
The MOU provides that the parties will execute a formal Settlement
Stipulation to be filed with the Court.
The Settlement Stipulation will provide for full and unconditional releases,
certification of the class for settlement purposes, and additional
disclosures that were made by Spirit Finance in its proxy statement that was
mailed to stockholders in connection with the meeting of stockholders to vote
on the Merger.
The MOU provides for a cash payment to the Arizona plaintiff for attorneys’
fees and expenses in an amount to be approved by the Court.
As of June 30, 2007, the parties had not entered into the Settlement
Stipulation.
Spirit Finance Corp. -- http://www.spiritfinance.com-- is a real estate
investment trust (REIT), that specializes in single-tenant, free-standing
properties. The company owns or has financed more than 1,000 that are leased
to retail, distribution, and service-oriented firms in more than 40 states.
It also offers commercial mortgage, business, and construction loans and
equipment financing.
ST. JUDE: Oral Arguments in Silzone Suit Could Occur Late 2007
--------------------------------------------------------------
Oral arguments in a multi-district proceeding over alleged adverse health
effects associated with the use of Silzone-coated mechanical heart valves
manufactured by St. Jude Medical Inc., are expected to occur later in 2007.
In July 1997, the Company began marketing mechanical heart valves which
incorporated Silzone coating. The Company later began marketing heart valve
repair products incorporating Silzone coating. Silzone coating was intended
to reduce the risk of endocarditis, a bacterial infection affecting heart
tissue, which is associated with replacement heart valve surgery.
In January 2000, the Company initiated a voluntary field action for products
incorporating Silzone coating after receiving information from a clinical
study that patients with a Silzone-coated heart valve had a small, but
statistically significant, increased incidence of explant due to paravalvular
leak compared to patients in that clinical study with heart valves that did
not incorporate Silzone coating.
Subsequent to the Company’s voluntary field action, the Company has been sued
in various jurisdictions by some patients who received a product with Silzone
coating and, as of July 20, 2007, such cases are pending in the United
States, Canada, United Kingdom and France. Some of these claimants allege
bodily injuries as a result of an explant or other complications, which they
attribute to Silzone-coated products.
Others, who have not had their Silzone-coated heart valve explanted, seek
compensation for past and future costs of special monitoring they allege they
need over and above the medical monitoring all other replacement heart valve
patients receive. Some of the lawsuits seeking the cost of monitoring have
been initiated by patients who are asymptomatic and who have no apparent
clinical injury to date. The Company has vigorously defended against the
claims that have been asserted and expects to continue to do so with respect
to any remaining claims.
Multi-District Litigation in Minnesota
In 2001, the U.S. Judicial Panel on Multi-District Litigation (MDL) ruled
that certain lawsuits filed in U.S. federal district court involving products
with Silzone coating should be part of MDL proceedings under the supervision
of U.S. District Court Judge John Tunheim in Minnesota. As a result, actions
in federal court involving products with Silzone coating have been and will
likely continue to be transferred to the District Court for coordinated or
consolidated pretrial proceedings.
The District Court ruled against the Company on the issue of preemption by
finding that the plaintiffs’ causes of action were not preempted by the U.S.
Food and Drug Act. The Company sought to appeal this ruling, but the
appellate court determined that it would not review the ruling at that point
in the proceedings.
Class Action Proceedings
Certain plaintiffs requested the District Court to allow some cases to
proceed as class actions. The first complaint seeking class-action status was
served upon the Company in April 2000 and all eight original class-action
complaints were consolidated into one case by the District Court in October
2001.
One proposed class in the consolidated complaint seeks injunctive relief in
the form of medical monitoring. A second class in the consolidated complaint
seeks an unspecified amount of monetary damages. In response to the requests
of the claimants in these cases, the District Court issued several rulings
concerning class action certification. The Company requested the Eighth
Circuit Court of Appeals to review the District Court’s class certification
orders.
In October 2005, the Eighth Circuit issued a decision reversing the District
Court’s class certification rulings. More specifically, the Eighth Circuit
ruled that the District Court erred in certifying a consumer protection class
seeking damages based on Minnesota’s consumer protection statutes, and
required the District Court in further proceedings to conduct a thorough
conflicts-of-law analysis as to each plaintiff class member before applying
Minnesota law.
In addition, in its October 2005 opinion, the Eighth Circuit also ruled that
the District Court’s certification of a medical monitoring class was an abuse
of discretion and thus reversed the District Court’s certification of a
medical monitoring class involving the products with Silzone coating.
After briefing and oral argument by the parties, the District Court issued
its further ruling on class certification issues in October 2006. At that
time, the District Court granted plaintiffs’ renewed motion to certify a
nationwide consumer protection class under Minnesota’s consumer protection
statutes and the Private Attorney General Act.
The Company sought appellate review of the District Court’s October 2006
decision, and in November 2006, the Eighth Circuit agreed to conduct a review
of the District Court’s decision.
The parties have submitted briefs to the Eighth Circuit and oral arguments
are expected to occur later in 2007.
The suit is "In Re: St Jude Medical Inc. et al., Case No. 0:01-md-01396-JRT-
FLN," filed in the U.S. District Court for the District of Minnesota under
Judge John R. Tunheim, with referral to Judge Franklin L. Noel.
Representing defendant are:
Steven E. Angstreich, Esq.
Carolyn Lindheim, Esq.
Levy Angstreich Finney Baldante Rubenstein & Coren
10 Melrose Ave Ste 100, Cherry Hill, NJ 08003
Phone: 856—0303
Fax: 18567957447
E-mail: sangstreich@levyangstreich.com or
clindheim@levyangstreich.com
James T. Capretz, Esq.
Capretz & Associates
5000 Birch St. Ste 2500
Newport Beach, CA 92660
Phone: 949-724-3000
Fax: 949-757-2635
E-mail: jcapretz@capretz.com
Joe D. Jacobson, Esq.
Green Jacobson & Butsch, PC
7733 Forsyth Blvd Ste 700, St Louis, MO 63105
Phone: 314-862-6800
Fax: 314-862-1606
E-mail: jacobson@stlouislaw.com
Steven M. Kohn, Esq.
Reed Smith - Oakland, 1999 Harrison
St Ste 2400, Oakland, CA 94612
Phone: 510-763-2000
Fax: 510-273-8832
E-mail: skohn@reedsmith.com
-- and --
Patrick Murphy, Esq.
The Murphy Law Office
844 E Sahara Ave., Las Vegas, NV 89104
Phone: 702-259-4600
Fax: 17022594748
Representing the plaintiffs are:
J. Gordon Rudd, Jr., Esq.
David M. Cialkowski, Esq.
Zimmerman Reed, P.L.L.P.
651 Nicollet Mall Suite 501
Minneapolis, Minnesota 55402 (Hennepin Co.)
Phone: 612-341-0400
Toll Free: 800-755-0098
Fax: 612-341-0844
ST. JUDE: Faces Suits in Canada Over Silzone-Coated Heart Valves
----------------------------------------------------------------
St. Jude Medical Inc. is facing four class actions and one individual case in
Canada over its Silzone-coated mechanical heart valves.
In one such case in Ontario, the court certified that a class action
involving Silzone patients may proceed. The Company’s request for leave to
appeal the rulings on certification was rejected, and the trial of the
initial phase of this matter is scheduled for April 2008.
A second case seeking class action in Ontario has been stayed pending
resolution of the other Ontario action.
A case filed as a class action in British Columbia is in the early stages of
discovery and has not been certified by the court as a class action.
A court in Quebec has certified a class action, and that matter is proceeding
in accordance with the court orders.
Additionally, in December 2005, the Company was served with a lawsuit by the
Quebec Provincial health insurer. The lawsuit asserts a subrogation right to
recover the cost of insured services furnished or to be furnished to class
members in the class action pending in Quebec. The complaints in these cases
each request damages ranging from CAD1.5 million to CAD2.0 billion ($1.4
million to $1.9 billion at June 30, 2007).
In France, one case involving one plaintiff is pending as of July 20, 2007.
In November 2004, an Injunctive Summons to Appear was served, requesting
damages in excess of EUR3 million ($4.0 million at June 30, 2007).
In July 1997, the Company began marketing mechanical heart valves which
incorporated Silzone coating. The Company later began marketing heart valve
repair products incorporating Silzone coating. Silzone coating was intended
to reduce the risk of endocarditis, a bacterial infection affecting heart
tissue, which is associated with replacement heart valve surgery.
In January 2000, the Company initiated a voluntary field action for products
incorporating Silzone coating after receiving information from a clinical
study that patients with a Silzone-coated heart valve had a small, but
statistically significant, increased incidence of explant due to paravalvular
leak compared to patients in that clinical study with heart valves that did
not incorporate Silzone coating.
Subsequent to the Company’s voluntary field action, the Company has been sued
in various jurisdictions by some patients who received a product with Silzone
coating and, as of July 20, 2007, such cases are pending in the United
States, Canada, United Kingdom and France. Some of these claimants allege
bodily injuries as a result of an explant or other complications, which they
attribute to Silzone-coated products.
Others, who have not had their Silzone-coated heart valve explanted, seek
compensation for past and future costs of special monitoring they allege they
need over and above the medical monitoring all other replacement heart valve
patients receive. Some of the lawsuits seeking the cost of monitoring have
been initiated by patients who are asymptomatic and who have no apparent
clinical injury to date. The Company has vigorously defended against the
claims that have been asserted and expects to continue to do so with respect
to any remaining claims.
ST. JUDE: Faces Silzone Suit Filed for All Persons in E.U.
----------------------------------------------------------
St. Jude Medical Inc. is facing a class action filed for all persons residing
in the European Economic Union member jurisdictions who have had a heart
valve replacement and/or repair procedure using a product with Silzone
coating.
The suit was filed in Minnesota state court and served upon the Company in
February 2004 by two European citizens who now live in Canada.
The complaint seeks damages in an unspecified amount for the class, and in
excess of $50 thousand for each plaintiff. The complaint also seeks
injunctive relief in the form of medical monitoring.
The Company is opposing the plaintiffs’ pursuit of this case on
jurisdictional, procedural and substantive grounds, according to the
company’s Aug. 9 form 10-k regulatory filing for the period ended June 30,
2007.
In July 1997, the Company began marketing mechanical heart valves which
incorporated Silzone coating. The Company later began marketing heart valve
repair products incorporating Silzone coating. Silzone coating was intended
to reduce the risk of endocarditis, a bacterial infection affecting heart
tissue, which is associated with replacement heart valve surgery.
In January 2000, the Company initiated a voluntary field action for products
incorporating Silzone coating after receiving information from a clinical
study that patients with a Silzone-coated heart valve had a small, but
statistically significant, increased incidence of explant due to paravalvular
leak compared to patients in that clinical study with heart valves that did
not incorporate Silzone coating.
Subsequent to the Company’s voluntary field action, the Company has been sued
in various jurisdictions by some patients who received a product with Silzone
coating and, as of July 20, 2007, such cases are pending in the United
States, Canada, United Kingdom and France. Some of these claimants allege
bodily injuries as a result of an explant or other complications, which they
attribute to Silzone-coated products.
Others, who have not had their Silzone-coated heart valve explanted, seek
compensation for past and future costs of special monitoring they allege they
need over and above the medical monitoring all other replacement heart valve
patients receive. Some of the lawsuits seeking the cost of monitoring have
been initiated by patients who are asymptomatic and who have no apparent
clinical injury to date. The Company has vigorously defended against the
claims that have been asserted and expects to continue to do so with respect
to any remaining claims.
ST. JUDE: Continues to Face Securities Fraud Lawsuit in Minn.
--------------------------------------------------------------
The U.S. District Court for the District of Minnesota denied a motion seeking
the dismissal of a consolidated securities fraud class action filed against
St. Jude Medical, Inc.
In April and May 2006, three shareholders, each purport to act on behalf of a
class of purchasers from Jan. 25 through April 4, 2006, separately sued the
company and certain officers, alleging that the company made materially false
and misleading statements during the class period relating to financial
performance, projected earnings guidance, and projected sales of implantable
cardioverter defibrillators.
The complaints, which all seek unspecified damages and other relief, as well
as attorneys' fees have been consolidated.
The Company filed a motion to dismiss, which was denied by the district court
in March 2007.
The company provided no development in the case at its Aug. 9 form 10-k
regulatory filing for the period ended June 30, 2007.
The suit is “In Re: St. Jude Medical, Inc. Securities Litigation, Case No. 06-
cv-01379-JMR-FLN,” filed in the U.S.
District Court for the District of Minnesota under Judge James
M. Rosenbaum with referral to Judge Franklin L. Noel.
Representing the plaintiffs are:
Jill S. Abrams, Esq.
Abbey Spanier Rodd Abrams & Paradis, LLP
212 E 39th St., New York, NY 10016
Phone: 212-284-5258
E-mail: jabrams@abbeyspanier.com
Stuart W. Emmons, Esq.
Federman & Sherwood
10205 N. Pennsylvania Ave.
Oklahoma City, OK 73120
Phone: 405-235-1560
Fax: 405-239-2112
E-mail: swe@federmanlaw.com
- and-
Gregg M. Fishbein, Esq.
Lockridge Grindal Nauen PLLP
100 Washington Ave., S. Ste. 2200
Minneapolis, MN 55401-2179
Phone: (612) 339-6900
Fax: (612) 339-0981
E-mail: gmfishbein@locklaw.com
Representing the defendant is:
Michelle S. Grant
Dorsey & Whitney LLP
50 S. 6th St., Ste. 1500
Minneapolis, MN 55402-1498
Phone: 612-340-5671
Fax: 612-340-2807
E-mail: grant.michelle@dorsey.com
TARGET: Recalls Gardening Tools for Lead Paint Standard Breach
--------------------------------------------------------------
Target, of Minneapolis, Minnesota, in cooperation with the U.S. Consumer
Product Safety Commission, is recalling about 350,000 units of Happy Giddy
Gardening Tools and Children’s Sunny Patch Chairs.
The company said the surface paint on the recalled gardening tools and chairs
contains excessive levels of lead, violating the federal lead paint standard.
No injuries have been reported.
The recall includes the Happy Giddy Gardening Tools and the Sunny Patch
Children’s Chairs.
Gardening tools: caterpillar trowel with an orange and multi-colored handle;
kitty cat broom with pink flowers and green handle; pink and green cultivator
with a solid green tool portion and pink flowers on the handle; orange and
green wood handle hoe and rake with orange flowers; pink and green shovel and
trowel with pink flowers; green, orange and light blue snail push broom;
multi-colored trowel, hoe, rake with orange on the tool body; multi-colored
shovel with solid red on the shovel and eyes on the top of the handle; red
and blue owl shaped broom with bristles painted blue, with yellow and black
large eyes on the face.
Children’s Chairs: multi-colored children’s Sunny Patch chairs with a
giraffe, monkey, and elephant on the back. The cloth seat and back are
striped in orange, yellow, green and blue. The chameleon, butterfly and lady
bug chair are not included in the recall.
These recalled gardening tools and chairs were manufactured by Starite
International Ltd., in China, and are being sold at Target stores nationwide
from August 2006 through August 2007 for between $3 and $10.
Pictures of recalled gardening tools and chairs:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07309a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07309b.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07309c.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07309d.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07309e.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07309f.jpg
Consumers are advised to immediately take the products away from children and
return the item to the nearest Target store for a full refund.
For additional information, contact Target at (800) 440-0680 between 7 a.m.
and 6 pm. CT Monday through Friday, or visit the firm’s Web site:
http://www.target.com
TNS INC: Parties in Va. Securities Lawsuit Enter Into Mediation
---------------------------------------------------------------
Parties in a purported securities fraud class action against TNS, Inc. are
engaged in a mediation session in hopes of resolving the matter, which is
currently pending in the U.S. District Court for the Eastern District of
Virginia.
The company and John J. McDonnell, Jr., chief executive officer, and Henry H.
Graham, Jr., chief financial officer are defendants in a putative class
action filed in connection with the company's secondary public offering of
common stock in September 2005.
The Cement Masons and Plasterers Joint Pension Trust, purportedly on behalf
of itself and others similarly situated, filed the putative class action
as, "Cement Masons & Plasterers Joint Pension Trust v. TNS, Inc., et al.,
Case No. 1:06 CV 363, CMH/BRP," on April 4, 2006.
Plaintiff claims that the Registration Statement filed in connection with the
secondary offering negligently failed to disclose that:
-- TNS' agreement with the Pepsi Bottling Group, Inc.
to provide cashless vending to Pepsi had been
delayed beyond Aug. 7, 2005;
-- TNS was generating less revenues and income than it had
anticipated from its contract with the Royal Bank of
Scotland, because Royal Bank purportedly had overstated
the number of transactions that TNS would be
responsible for processing for Royal Bank; and
-- TNS' International Services Division was experiencing
declining revenues during that time period because of
unfavorable foreign exchange rates.
The company filed a motion to dismiss the lawsuit on July 14, 2006.
Plaintiff filed its memorandum in opposition to TNS' motion to dismiss on
Aug. 4, 2006, and TNS filed its reply memorandum on Aug. 18, 2006.
The court denied the motion to dismiss on Sept. 12, 2006, and has since
ordered the parties to conduct discovery in the case.
In March 2007, the Court stayed further discovery in the case pending a
mediation of the matter. The parties conducted a mediation on April 26,
2007, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarterly period ended June 30,
2007.
The first identified complaint is "Cement Masons and Plasters
Joint Pension Trust, et al. v. TNS Inc., et al.," filed in the U.S. District
Court for the Eastern District of Virginia.
Representing the plaintiffs are:
Brodsky & Smith, LLC
11 Bala Avenue, Suite 39
Bala Cynwyd, PA 19004
Phone: 610.668.7987
Fax: 610-660-0450
E-mail: esmith@Brodsky-Smith.com
Federman & Sherwood
120 North Robinson, Suite 2720,
Oklahoma City, OK 73102
Phone: 405-235-1560
E-mail: wfederman@aol.com
Kahn Gauthier Swick, LLC
650 Poydras St. Suite 2150
New Orleans, LA 70130
Phone: (504) 455-1400
E-mail: lewis.kahn@kglg.com
- and -
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP
58 South Service Road, Suite 200
Melville, NY 11747
Phone: 631.367.7100
Fax: 631.367.1173
UNITED STATES: PRLDEF Files N.Y. Lawsuit Over ICE Pre-Dawn Raids
----------------------------------------------------------------
The Puerto Rican Legal Defense and Education Fund (PRLDEF) filed a purported
class action against the Immigration and Customs Enforcement (ICE) division
of the U.S. Department of Homeland Security over pre-dawn raids that it has
conducted.
The suit was filed in the U.S. District Court for the Southern District of
New York by PRLDEF and the international law firm of LeBoeuf, Lamb, Greene &
MacRae LLP on behalf of several plaintiffs that include:
-- Adriana Aguilar,
-- Andres Leon,
-- Elena Leon,
-- Erika Gabriela Garcia-Leon,
-- Carson Aguilar,
-- Nelly Amaya,
-- Mario Patzan DeLeon,
-- David Lazaro Perez,
-- John Does ##1-5, and
-- Jane Doe #1.
It is specifically charging that ICE agents unlawfully break into and enter
the homes of Latinos in the New York area without judicially issued warrants
or other legal justification.
The suit was brought on behalf of several families -- all Latinos whose homes
have been raided this year -- who say that ICE agents violently entered their
homes without first obtaining court warrants.
Specifically, the case alleges that the raids, part of a program
called, ”Operation Return to Sender,” are meant to target illegal immigrants
but often focus on homes that do not house them and where ICE agents could
not “reasonably expect” to find them.
Plaintiffs allege that ICE agents break down doors or force their way into
Latino households in the pre-dawn hours, abruptly roused sleeping family
members including young children, and detained and interrogated them without
the benefit of legal representation, sometimes forcing them to answer
questions without allowing them to get dressed.
The complaint alleges that none of the plaintiffs were ever shown a warrant
though several demanded to see one. It also alleges that ICE singled out
Hispanics.
According to the complaint obtained by the Class Action Reporter, as a direct
and proximate result of the conduct by defendants, the plaintiffs have been
harmed, which harm includes, but is not limited to:
-- violations of their constitutional rights to be free
from unreasonable searches and seizures;
-- having their homes and personal privacy invaded;
-- being intimidated, harassed, humiliated, and
threatened with force;
-- experiencing severe emotional and mental distress;
-- being illegally and unreasonably detained;
-- being subjected to an illegal and unreasonable
interrogation;
-- having their personal property damaged; and
-- other harm according to proof.
Furthermore, the complaint states that the acts by the defendants were done
intentionally, maliciously, and recklessly, and showed a callous disregard
for, or indifference to, the named plaintiffs' personal safety, security,
freedom, and civil and constitutional rights, and/or with intent to injure,
harass, and oppress plaintiffs and other members of the Latino community in
New York.
Plaintiffs are listing two claims for relief:
-- First Claim: Class Action Claim of Fourth Amendment
Violations
-- Second Claim: Bivens Claims of named plaintiffs
In its prayer for relief, plaintiffs request that the Court:
-- Issue a Declaratory Judgment on behalf of plaintiffs
with respect to the claims set forth in the First
Claim declaring that the actions of defendants
vis-a-vis the Plaintiffs as complained of herein
violated the Fourth Amendment to the U.S.
Constitution;
-- With respect to the claims set forth in the First
Claim, issue an order permanently enjoining
defendants, their agents, employees, and successors in
office and all others acting in concert with them from
engaging in the unlawful, abusive and discriminatory
actions as alleged;
-- Award the named plaintiffs actual, compensatory, and
punitive damages for violations of the Fourth
Amendment to the U.S. Constitution;
-- Award plaintiffs costs of this action;
-- Award plaintiffs pre- and post-judgment interest, as
permitted by law;
-- Award plaintiffs reasonable attorneys' fees with
respect to their claims set forth in the First and
Second Claims;
-- Grant plaintiffs such other relief as the Court deems
appropriate and just.
A copy of the complaint is available free of charge at:
http://researcharchives.com/t/s?23be
For more details, contact:
Patrick J. Gennardo, Esq.
Donna L. Gordon, Esq.
Richard J. Cairns, Esq.
Kelly H. Tsai, Esq.
Colin G. Stewart, Esq.
LeBoeuf, Lamb, Greene & MacRae LLP
125 W. 55th Street
New York, New York 10019
Phone: (212) 424-8000
Web site: http://www.llgm.com/Home.aspx
- and -
Foster Maer, Esq.
Jackson Chin, Esq.
Ghita Schwarz, Esq.
The Puerto Rican Legal Defense and Education Fund
90 Hudson Street, 14th Floor
New York, New York 10013
Phone: (212) 739-7507
Web site: http://www.prldef.org/
WILD OATS: Faces Lawsuit in Calif. Over Employee Classification
---------------------------------------------------------------
Wild Oats Markets, Inc. is a defendant in a purported labor-related class
action filed on behalf of Kelvin Massie, Anne Ress-Lemay and Gary Liss
against Wild Oats Markets, Inc. and Does 1 through 100.
The suit was filed in April 2007 in the Superior Court, County of Los
Angeles, arising from claimed misclassification of certain exempt employees
while such employees were in a training program.
The company reported no development in the matter in its Aug. 9, 2007 Form 10-
Q Filing with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2007.
Wild Oats Markets, Inc. -- http://www.wildoats.com/-- is a natural foods
supermarket chain in North America. As of Feb. 26, 2007, the Company
operated 110 natural foods stores in 24 states and British Columbia, Canada
under several names, including Wild Oats Marketplace (nationwide), Henry’s
Farmers Market (southern California), Sun Harvest (Texas) and Capers
Community Market (British Columbia, Canada).
Asbestos Alerts
ASBESTOS LITIGATION: Judge Stays Actions v. Mont., BNSF Railway
----------------------------------------------------------------
Judge Judith Fitzgerald temporarily stays all actions commenced against the
state of Montana and BNSF Railway Co. and its predecessors, the Great
Northern Railway Co., the Burlington Northern Railway Co., and the Burlington
Northern & Santa Fe Railway Co., that arise out of alleged exposure to
asbestos caused by the Debtors, pending a decision on W.R. Grace & Co.’s
Injunction Motion and responses to it.
The Debtors' Injunction Motion asked the Court to enjoin certain claimants
injured by exposure to asbestos from the Debtors' operations in Lincoln
County, Mont., from prosecuting asbestos-related actions and from commencing
new actions asserting asbestos-related claims against:
-- Sealed Air Corp., Sealed Air Corp. (US), Sealed Air (Canada) Inc., and
Cryovac Inc.;
-- National Medical Care Inc., Fresenius A.G., Fresenius U.S.A., Inc.,
Fresenius Medical Care, Inc., and Fresenius National Medical Care, Inc.;
-- Merrill Lynch, Pierce, Fenner & Smith Inc., Credit Suisse First Boston
Corp., and Robinson Insulation Co.;
-- Maryland Casualty Co., Continental Casualty Co. and their affiliates;
-- Certain of the Debtors affiliates that are not Chapter 11 Debtors;
-- Montana Vermiculite Co. (MVC);
-- The state of Montana; and
-- The BNSF Entities.
The Debtors also asked injunction of the continued prosecution of:
-- The litigation captioned Abner v. Grace pending in the California Superior
Court against Sealed Air, Merrill Lynch, CSFB and Fresenius, and enjoin the
commencement of additional fraudulent transfer cases against these entities;
-- Actions commenced by the Debtors' current or former officers, directors
and employees that arise out of their employment with the Debtors, including
the litigation captioned Robert H. Locke v. Grace and Robert Bettacchi, and
Munoz v. Grace & Gonzalez;
-- Several non-asbestos cases in which the Debtors may have indemnity
obligations to their co-defendants; and
-- Asbestos actions and future actions brought against MVC, the state of
Montana and BNSF.
In response to the Injunction Motion, BNSF sought the Court's permission to
conduct insurance discovery because it believes that independent, collateral
insurance coverage for the Montana Actions exists from Maryland Casualty,
Royal Indemnity, and Continental Casualty, where BNSF is a named insured.
The Official Committee of Asbestos Personal Injury Claimants objected to the
Injunction Motion to the extent it included BNSF and the state of Montana,
which are non-debtor parties. The PI Committee asserted that by extending the
Injunction to non-debtor parties, those persons pursuing claims against them
would be denied a timely and meaningful opportunity of presenting their
claims in court, and thus would be prejudiced.
Judge Fitzgerald adds that BNSF and the Libby Claimants are not stayed from
seeking the dismissal or termination of any of the Montana Actions, which the
parties agree or have agreed to settle.
Judge Fitzgerald also rules that BNSF may seek discovery of independent
asbestos-related insurance coverage policies that are not:
-- Policies that are property of the Debtors' estates,
-- Policies where any of the Debtors are an insured, or
-- Policies where any of the Debtors have a claim to their proceeds.
Certain claimants injured by exposure to asbestos from the Debtors'
operations in Lincoln County, Mont., takes an appeal from Judge Fitzgerald's
order enjoining them from prosecuting their tort claims against the state of
Montana and BNSF Railway Co. and its predecessors, the Great Northern Railway
Co., the Burlington Northern Railway Co., and the Burlington Northern & Santa
Fe Railway Co.
(W.R. Grace Bankruptcy News, Issue No. 139, Bankruptcy Creditors' Service
Inc., 215-945-7000, Fax: 215-945-7001)
ASBESTOS LITIGATION: Trial in Action v. Georgia-Pacific to Begin
----------------------------------------------------------------
Trial of a lawsuit filed by Chester Black against Georgia-Pacific Corp. in
Madison County Circuit Court, Ill., is set to commence, The Madison St. Clair
Record reports.
Judge Daniel Stack has begun picking a jury for the county's first asbestos
trial in more than a year.
Once the trial begins, Mr. Black of Joplin, Mo., will try to prove he was
exposed to and inhaled, ingested or otherwise absorbed large amounts of
asbestos fibers emanating from products he was working with or around.
Mr. Black, who filed suit early in 2007, seeks compensatory and punitive
damages in excess of US$400,000.
Mr. Black, who is represented by Randy Gori of The Goldenberg firm in
Edwardsville, Ill., was diagnosed with mesothelioma in May 2006.
Jeff Hebrank of Edwardsville, Ill., represents Georgia-Pacific, which was
granted defense verdicts in the last two Madison County trials they were
involved in.
Mr. Black alleges the defendants are guilty of willful and wanton misconduct.
He claims he has had to undergo costly medical treatment and that he suffers
great physical pain and mental anguish as a result of his asbestos exposure.
Mr. Black alleges that Georgia-Pacific and John-Crane Inc. included asbestos
in their products even when adequate substitutes were available and failed to
provide any or adequate instructions concerning the safe methods of working
with and around asbestos.
Mr. Black also claims he was exposed to asbestos during non-occupational work
projects including home and automotive repairs, maintenance and remodeling.
ASBESTOS LITIGATION: Asbestos Discovered in 6 Tasmanian Schools
----------------------------------------------------------------
Six southern schools in Tasmania, Australia, are found to have asbestos, with
at least 16 "significant instances" of the substance, Mercury reports.
A list of schools with asbestos, obtained under Freedom of Information
legislation, reveals Tasman District High has the most significant instances
of asbestos in the state.
The rural school has 13 instances of asbestos in building interiors and
another 10 on the site.
Kingston high and primary schools, Hobart College, Green Point Primary School
at Bridgewater and Geeveston District High School have between 16 and 22
cases of asbestos.
However, Education Department corporate services deputy secretary Greg Glass
said parents could "rest assured" that the asbestos posed no danger to
students or staff.
Mr. Glass said asbestos was common in many buildings in Tasmania built before
1984 and existed in the floor tiles and wall linings of some buildings.
There was an asbestos scare in August 2007 when chunks of asbestos were found
lying on grass less than 250 meters from a childcare centre at New Norfolk.
Thieves had been ripping up pipe casing from concrete trenches to steal
copper pipes from the site, tearing asbestos lagging in the process near the
kindergarten in the grounds of the disused Royal Derwent Hospital.
The Derwent Valley Council general manager had not read the environmental
assessment of the site commissioned by the State Government in 1996 which
stated, "Asbestos-lagged buried pipelines should be removed."
ASBESTOS LITIGATION: U.K. Inquest Links Welder’s Death to Hazard
----------------------------------------------------------------
An inquest at Eastbourne, East Sussex, U.K., has heard that the death of
retired welder James Patrick Michael Madden, who helped build the U.K.’s gas
work system in the 1960s, was related to asbestos, Bexhill-On-Sea Observer
reports.
The 76-year-old Mr. Madden had worked as a welder all his life in shipyards
and on oil refineries, and died at Eastbourne's District General Hospital in
April 2007.
The inquest heard Mr. Madden had inoperable lung cancer and a post mortem
examination after his death revealed he had asbestos within his lungs.
Pathologist Dr. Jane Mercer said Mr. Madden's death was related to asbestos.
Mr. Madden's son, Jimmy, told East Sussex Coroner Alan Craze his father had
spent all his working life as a welder first on the shipyards in Scotland, on
the oil refineries in Canvey Island, building the gas network in the 1960s
and in the North Sea oil industry.
Recording a verdict of death from industrial disease, Mr. Craze said, "There
is absolutely no doubt whatsoever that he was exposed to asbestos while he
was at work and the cause of his death was directly due to asbestos exposure."
ASBESTOS LITIGATION: Cleanup to Cost Pa. School District $35,000
----------------------------------------------------------------
The Oxford Area School District in Pennsylvania has estimated about $35,000
to remove asbestos from the old Penn’s Grove School, DailyLocal.com reports.
Getting rid of the extra asbestos, which was in the adhesive holding the
blackboards to the walls, will cost the district US$26,000 in asbestos
abatement to Safe Side Environmental Restoration and US$8,618 more to Eagle
Industrial Hygiene Association Inc. for the testing.
To clear out the building there was a sale at the old school to get rid of
extra equipment that was no longer needed. That included the blackboards, but
when they came down, suspicious-looking black dots of adhesive were left on
the walls.
“The black dots that were left on the walls were tested and they contain
asbestos,” district business manager Charles Lewis said at a school board
meeting.
ASBESTOS LITIGATION: Woman’s Death Linked to 2nd-Hand Exposure
----------------------------------------------------------------
An inquest heard that the death of Kathleen Thompson, the wife of a
firefighter from Nunthorpe, Cleveland, U.K., was linked to asbestos, Sunday
Sun reports.
Mrs. Thompson contracted cancer as a result of washing her husband Alan
Thompson’s clothes, which had asbestos in them. The 56-year-old Mr. Thompson
came into contact with asbestos through his work as a firefighter.
The inquest heard that the malignant mesothelioma with which Mrs. Thompson
was diagnosed was “almost certainly” caused by exposure to asbestos fibers.
Mr. Thompson said in a statement read to the inquest that at the fire station
in Middlesbrough, where he previously worked, there was a large pipe in the
basement which was lagged with asbestos. He said the firefighters used to
hang their kit in the basement, where they would spend a lot of their time.
Mr. Thompson reported that the lagging on the pipe was broken and hanging
from it, and that workers would often sweep up the asbestos left lying around.
Teesside Coroner Michael Sheffield recorded a verdict of misadventure, saying
Mrs. Thompson had intended to wash her husband’s clothes but certainly did
not intend the tragic consequences.
ASBESTOS LITIGATION: Court Affirms GE’s, CG&E’s Summary Judgment
----------------------------------------------------------------
The U.S. District Court, E.D. Kentucky, Northern Division, at Covington,
granted the summary judgment motions filed by General Electric Co. and
Cincinnati Gas & Electric Co., in an asbestos-related lawsuit filed by David
Martin, on behalf of his father Dennis Martin.
U.S. District Judge David L. Bunning entered decision of Civil Action No. 02-
201-DLB on Sept. 5, 2007.
Dennis Martin passed away on March 26, 2002, at age 49 of malignant
mesothelioma.
In this case, Dennis Martin’s father, Vernon Martin, was a long-time employee
of CG&E. David Martin’s claimed against GE and CG&E arose from "household"
or "bystander" exposure. More specifically, David Martin asserted that Dennis
Martin was exposed to asbestos fibers which were carried home on the
clothing, hair, and person of Vernon Martin, Dennis Martin’s father.
Vernon Martin worked in various capacities for CG&E from his hiring in 1951
as a laborer in the Underground Electric Distribution Department, until his
retirement in 1988.
During parts of the 1950s and 1960s, the relevant time frame, Vernon Martin
spent a considerable amount of time working in underground manholes,
substations, and vaults in the conduit construction section of CG&E's
Electric Transmission and Distribution Departments.
During this same time frame, CG&E provided its workforce with showers and
lockers so employees could shower and change their clothing before going
home. According to his deposition, Vernon Martin frequently showered or
changed his clothing at work before going home.
When he did not take advantage of this opportunity, Vernon Martin changed his
work clothing in his basement where it was washed by his wife.
In May 1963, Vernon Martin began working as an equipment operator in the
Underground Electric Distribution Department.
Discovery has established that Dennis Martin, who was born on Oct. 22, 1952,
spent a considerable amount of time playing in Vernon Martin’s basement as a
child.
However, it is undisputed that the washing machine and dryer were in a
separate room partitioned off from the rest of the basement where Dennis
Martin played.
David Martin alleged that Dennis Martin contracted and died from malignant
mesothelioma. According to the David Martin’s theory of the case, defendants
used, manufactured, and supplied asbestos-containing material, and this
material caused Dennis Martin’s illness and subsequent death.
In each motion, GE and CG&E challenged the existence of a legal duty owed to
Dennis Martin.
The injuries to Dennis Martin were not reasonably foreseeable to either CG&E
or GE during the relevant time periods. As a result, both CG&E and GE are
entitled to summary judgment on David Martin’s strict liability claim.
Joseph D. Satterley, Kenneth L. Sales, Paul J. Kelley, Sales, Tillman,
Wallbaum, Catlett & Satterley, PLLC, Louisville, Ky., represented David
Martin, Executor of the Estate of Dennis B. Martin.
C. Lynne Pierce, Scott T. Dickens, Tachau, Maddox, Hovious & Dickens, PLC,
Louisville, Ky., Eric M. Cavanaugh, Duke Energy Shared Services Inc.,
Plainfield, Ind., represented General Electric Co. and Cincinnati Gas &
Electric Co.
ASBESTOS LITIGATION: Pa. Court OKs Abex Summary Judgment Motion
----------------------------------------------------------------
The U.S. District Court, E.D. Pennsylvania, granted the summary judgment
motion filed by Pneumo Abex LLC’s predecessor-in-interest Abex Corp., in an
asbestos-related lawsuit filed by Carol D’Amico, in behalf of Alfred
Chairieri.
Judge O’Neill entered decision of Civil Action No. 92-5544 on Sept. 10, 2007.
Mr. Chairieri was diagnosed with mesothelioma on Nov. 8, 1990 and passed away
on Feb. 1, 1991.
On Sept. 23, 1992, Ms. D’Amico’s estate filed a complaint alleging Mr.
Chairieri developed and died from mesothelioma as a result of exposure to
asbestos from the products of Pneumo Abex LLC's predecessor-in-interest Abex
Corp. and 11 other companies while he worked as a welding inspector for
Conrail and its predecessors from 1941 through 1981.
Before Judge O’Neill were Abex's motion for summary judgment, Ms. D’Amico’s
response and Abex’s reply.
To establish that Mr. Chairieri breathed in asbestos dust or fibers from
Abex's products, Ms. D’Amico relied on the deposition testimony of Mr.
Chairieri’s co-worker Angelo Balestino.
Mr. Balestino worked as a car repairman and welder at Conrail's Hollidaysburg
Car Shop from 1966 to 1982. In his deposition, Mr. Balestino identified Abex
as a familiar name, asserted that Abex's products were made from asbestos,
and recalled that those products created dust.
Because it was found that Mr. Balestino's testimony was insufficient to
create a genuine issue of material fact regarding Mr. Chairieri’s exposure to
asbestos dust or fibers from any Abex product, Judge O’Neill granted Abex's
motion for summary judgment.
ASBESTOS LITIGATION: Claims v. Wolseley Rise to 320 at July 31
----------------------------------------------------------------
Wolseley plc recorded 320 outstanding asbestos-related claims filed against
it at July 31, 2007, compared with 246 claims at July 31, 2006, according to
a Company report, on Form 6-K, filed with the U.S. Securities and Exchange
Commission on Sept. 24, 2007.
The asbestos related litigation is fully covered by insurance and accordingly
an equivalent insurance receivable has been included in receivables. The
level of insurance cover available significantly exceeds the expected level
of future claims and no profit or cash flow impact is therefore expected to
arise in the foreseeable future.
Environmental and legal liabilities include known and potential legal claims
and environmental liabilities arising from past events where it is probable
that a payment will be made and the amount of such payment can be reasonably
estimated.
Included in this provision is an amount of GBP35 million (2006: GBP31
million) related to asbestos litigation involving certain Group companies.
The liability has been actuarially determined as at July 31, 2007 based on
advice from independent professional advisors.
Theale, U.K.-based Wolseley plc distributes central heating equipment,
fittings, lumber, pipes, underground drainage equipment, valves, and other
building materials from more than 4,000 outlets in about 20 countries in the
U.S., Canada, and Europe.
ASBESTOS LITIGATION: Ameron Int’l. Records 131 Claims at Aug. 26
----------------------------------------------------------------
Ameron International Inc. was a defendant in asbestos-related cases involving
131 claimants as of Aug. 26, 2007, compared with 132 claimants as of May 27,
2007, according to the Company’s quarterly report filed with the U.S.
Securities and Exchange Commission on Sept. 24, 2007.
The Company is one of numerous defendants in various asbestos-related
personal injury lawsuits. These cases seek unspecified damages for asbestos-
related diseases based on alleged exposure to products previously
manufactured by the Company and others.
At this time the Company is generally not aware of the extent of injuries
allegedly suffered by the individuals or the facts supporting the claim that
injuries were caused by the Company's products.
For the quarter ended Aug. 26, 2007, there were new claims involving three
claimants, dismissals and settlements involving four claimants and no
judgments.
Net costs and expenses incurred by the Company for the quarter ended Aug. 26,
2007 in connection with asbestos-related claims were US$425,000.
Pasadena, Calif.-based Ameron International Corp. makes steel pipe,
fiberglass-composite pipe, and reinforced concrete pipe for various
industrial uses, including chemical and petrochemical processing, water
transmission, and sewage collection. The Company supplies ready-mix concrete
and aggregates, box culverts, and dune sand and manufactures various
construction products for infrastructure projects.
ASBESTOS LITIGATION: ATSDR Says Hazard Levels Low at Calif. Site
----------------------------------------------------------------
An Agency for Toxic Substances and Disease Registry (ATSDR) report says that
exposure levels of asbestos that were measured around a construction site
near San Francisco's Bayview Hunters Point neighborhood were considerably
low, Business Wire reports.
The construction site that is being graded is the former Hunters Point Naval
Shipyard known as Parcel A.
There were concerns raised by residents on dust that was created by the
construction. The serpentine rock that is underlying the site has asbestos in
it. Out of California’s 58 counties, 50 have serpentine rock.
The California Department of Health and the San Francisco Department of
Health conducted an extensive analysis of the site. An independent
environmental consulting firm, the BAQMD, and Dr. John Balmes, Professor of
Medicine at the University of California in San Francisco took part in the
analysis as well.
Public health professionals who have studied the construction site reported
several observations:
- Major grading lasted 18 months. In order for a person to develop cancer as
a result of asbestos, a person would have to be exposed daily, 24 hours per
day for a period of 70 years to 16,000 asbestos f/m3 or higher.
- The air monitoring data that was collected at the site were well below the
suspension level for airborne asbestos dust.
- According to some scientists, chrysotile, the naturally occurring asbestos
found at the site, is one of the least toxic forms of the mineral, according
to an independent consulting firm ARC Ecology.
- The length of the asbestos fibers found in the dust at Parcel A are shorter
than the five micron length usually associated with asbestos-related cancer.
According to the Chief of the Division of Occupational and Environment
Medicine at San Francisco's General Hospital, Dr. Balmes, Bayview-Hunters
Point has had high rates of asthma in children. He feels that the
construction site may contribute to health problems in the Bayview-Hunters
Point community.
Lennar Urban, the construction site's developer has implemented an Asbestos
Dust Mitigation Plan along with the City's DPH and BAAQMD.
The construction company has voluntarily installed air monitors at the edge
of the construction site and around the adjacent community.
ASBESTOS LITIGATION: Mass. DEP Probes Mishandling Claim at Bldg.
----------------------------------------------------------------
Joe Ferson, spokesman for the Department of Environmental Protection, on
Sept. 21, 2007, said that the State of Massachusetts is looking into whether
asbestos was mishandled at the “Monarch on the Merrimack” condominium
project, The Eagle-Tribune reports.
Mr. Ferson said officials are investigating possible "violations of state
asbestos regulations" at the 250 Merrimack St. building. He said the
investigation involves asbestos removal both "inside and outside" the
building.
Once known as the "Eighth Wonder of the World," the Wood Worsted Mill was the
largest building of its type when it was built in 1905, spanning three
million square feet and more than 60 acres. Robert Ansin, chief executive
officer of developer MassInnovation LLC, bought the mill in 2003 for US$4.5
million.
According to the DEP, asbestos removal projects have been ongoing, both
inside and outside the building, since 2004.
Mr. Ferson said the DEP approved an "indoor asbestos abatement project" at
the site for removal of "7,200 square feet of transite asbestos panels" with
work to be done between July 27, 2007 and Sept. 27, 2007. Transite panels are
an early form of drywall that contains asbestos, he said.
Pat Sennott, vice president of Sencam Inc., said his asbestos abatement
company was originally called in 2004 to do "preliminary cleanup." The DEP
Web site lists Sencam as being on site in October and November 2004,
September 2005 and February 2006.
Mr. Sennott said the work consisted of clearing out "transite panels,
asbestos insulation, window glazing and debris." He said also Sencam
employees were working inside the building to clear out "stuff that was in
bad shape, like pipe insulation and transite panels."
Mr. Sennott said his company also removed asbestos from the ground outside
the building. Some of the glazing from the old windows contains asbestos, and
Sencam workers used machines to vacuum up the glazing that had dropped from
around the window panes onto the ground below.
Mr. Ferson said one of the asbestos removal contractors at “Monarch on the
Merrimack” is Marcor Remediation, a national environmental firm with local
offices in Wilmington, Mass.
Marcor is listed on the DEP Web site as working on the site in June 2007 and
September 2007. According to the DEP Web site, the company removed transite
panels from the site from June 6, 2007 to June 27, 2007, and again from Sept.
11 2007 to Sept. 13, 2007.
Another contractor involved in removing asbestos at the site, Premier
Abatement & Labor Services Inc., of Methuen, Mass., paid a US$1,000 penalty
on June 25, 2007, for asbestos violations at the site.
Several other contractors also are listed on the DEP Web site as taking part
in asbestos removal projects at the “Monarch on the Merrimack” site, listed
on the DEP site as the Wood Mill or the Wood Worsted Mill at 250 Merrimack St.
ASBESTOS LITIGATION: Asbestos Containment to Begin at N.H. Site
----------------------------------------------------------------
Federal, state and local cleanup experts are jointly moving forward to
address soil contaminated with asbestos adjacent to the Nashua Public Library
in Nashua, N.H., according to a U.S. Environmental and Protection Agency
Press release dated Sept. 24, 2007.
The work is being coordinated between the U.S.EPA, the city of Nashua, and
the New Hampshire Department of Environmental Services
Asbestos was found in elevated levels in the half acre lawn area between the
parking lot and the Nashua River, and adjacent to the library. EPA site
investigators determined that if the asbestos in the soil should ever become
airborne by activities such as natural erosion, or mowing, it could
potentially threaten public health.
Work to cap the area of contamination is scheduled to begin this week and
will take about three weeks to complete.
While this is EPA’s first cleanup at this site, the EPA has been involved in
multiple asbestos sites during the 1980s and 1990s throughout the city of
Nashua and regards this as a routine cleanup that should not cause alarm.
All parties involved are working to minimize any disruption to local town
activities while taking all possible measures to ensure the safety of library
employees and visitors. During any intrusive soil work, exposed earth will be
sprayed with surfactants to control dust.
In addition, air monitors will be placed around the perimeter of the site to
notify workers of any elevated levels of dust present in the air. In such an
event, operations would cease until any and all dust problems had been
contained.
The public is encouraged to respect work crews, signs and fencing to protect
their health and to help keep the cleanup on schedule.
For more information on EPA’s Emergency Response Program:
www.epa.gov/ne/superfund/er/index
ASBESTOS LITIGATION: OSHA Issues $7,500 Penalty to Ill. Hospital
----------------------------------------------------------------
The U.S. Department of Labor Occupational Safety and Health Administration
issued a US$7,500 fine to West Suburban Medical Center for three serious
asbestos-related violations, U.S. Newswire reports.
OSHA inspectors found that the hospital put employees at risk by not
following asbestos guidelines.
“These are serious violations,” said Mario Morales, an employee of the
Environmental Services Department at West Suburban Medical Center. “They put
us at risk by not providing us with adequate information and training about a
dangerous substance in the hospital.”
The violations include failing to inform housekeeping employees that asbestos
was present in places they work, failing to post warning signs at the
entrances where asbestos-containing materials were present, and failing to
provide training to the employees, at no cost, on the dangers of asbestos.
According to the U.S. Centers for Disease Control and Prevention, repeated
exposure to asbestos increases the risk of a variety of lung problems,
including cancer.
This is the 34th time over the course of five years that OSHA has cited
Resurrection for violations of workplace safety regulations, said Henry
Bayer, Executive Director of AFSCME Council 31, which is working with
employees at Resurrection hospitals who are seeking to form a union.
Resurrection Health Care is the second-largest health care system in the
Chicago metropolitan area and the largest Catholic health care system in
Illinois.
ASBESTOS LITIGATION: Ohio to Award $3M to University for Cleanup
----------------------------------------------------------------
The State of Ohio would award the University of Dayton a US$3 million Clean
Ohio Revitalization Fund grant for the removal of asbestos and purification
of contaminated soil, Dayton Business Journal reports.
Applied for in May 2007, the funds will enable the University to clean up
about 26.5 acres of largely vacant former NCR Corp. land between Brown and
Main streets, according to a Sept. 24, 2007 announcement from Ohio House
Speaker Jon Husted, R-Kettering.
The site targeted, the university's Research, Education and Development
Initiative, is part of a planned redevelopment project expected to retain 160
current jobs. The University will provide US$3 million in matching funds.
The university initiative includes both cleaning the soil and renovating the
477,000-square-foot College Park Center into a combination of facilities for
research and development, commercial uses as well as university and secondary
education purposes.
ASBESTOS LITIGATION: “Take-home” Suits Get Mixed Court Opinions
----------------------------------------------------------------
The so-called “take-home” asbestos lawsuits, in which plaintiffs are suing
employers over secondhand exposure to chemicals brought into the home on
clothing, are getting mixed reviews from judges, The National Law Journal
reports.
In the state of Washington, a state court of appeals ruled on Aug. 27, 2007
that families of workers who inadvertently bring asbestos home on clothes may
now file their own claims against the employer, paving the way for
potentially hundreds of plaintiffs to hold employers liable for asbestos-
related illnesses. This case is styled Rochon v. SaberHagen Holdings Inc.,
No. 58579-7-I (Wash. Ct. App.).
In Louisiana, an appellate court in December 2006 affirmed a US$3 million
trial verdict awarded to a man whose wife died from mesothelioma after
repeated exposure to his work clothes. This case is styled Chaisson v.
Avondale Indus. Inc. (La. Ct. App.).
In New Jersey, the state Supreme Court ruled early in 2006 that a company can
be liable for a person's secondhand exposure to asbestos chemicals. The case
involved a husband who was exposed to asbestos at work, and alleged that his
wife died of mesothelioma after years of washing his clothes. The case was
styled Olivo v. Owens-Illinois Inc., No.a-23-05 (N.J.).
On the other hand, the Michigan Supreme Court in July 2007 rejected a take-
home case against Ford Motor Co., finding that Ford did not have a duty to
protect a daughter from asbestos exposure because the plaintiff never set
foot on the company's premises, and Ford had no special relationship with the
plaintiff. The plaintiff alleged she became sick from exposure to her
stepfather's clothes. The case was styled Miller v. Ford Motor Co., No.
131517 (Mich.).
In California, a jury in October 2006 found that DaimlerChrysler Corp. was
not responsible for the asbestos-related illness of a woman who claimed she
became ill through exposure to relatives who worked as auto mechanics.
However, the jury found that DaimlerChrysler had negligently exposed the
woman to asbestos. The case was styled Price v. DaimlerChrysler Corp., No.
RG06254616 (Alameda Co., Calif., Super. Ct.).
Timothy Corriston of Connell Foley in Roseland, N.J., who also defends
companies in asbestos litigation, said women in particular are filing an
increasing number of take-home asbestos lawsuits, most of them claiming that
asbestos was brought into their homes by their husbands, fathers or uncles.
Meanwhile, Mr. Corriston said, employers are concerned about this new
frontier of asbestos litigation "because it opens up a whole other class of
potential plaintiffs."
But legal recourse for plaintiffs injured by secondhand asbestos exposure is
long overdue, countered Matthew Bergman, who won the recent take-home case
before the Washington Court of Appeals.
Mr. Bergman's case involved a man who for more than 10 years worked around
asbestos products at a paper mill. His wife, who washed his clothes, died in
2004 of mesothelioma. The lawsuit blamed her death on cancerous materials
brought into the home from her husband's workplace.
According to Mr. Bergman, Kimberly Clark Corp., which owned the mill, had
successfully argued in a lower court that it had no duty of care to the woman
because the potential for harm was not foreseeable.
However, the Washington Court of Appeals overturned the lower court's ruling,
holding that "Kimberly Clark had a duty to prevent injury from an
unreasonable risk of harm it had itself created."
ASBESTOS LITIGATION: U.K. Fire Union Calls for Health Screenings
----------------------------------------------------------------
Union bosses, on Sept. 25, 2007, called for urgent medical screenings after
it was found that firefighters used to store their kit in a basement
containing potentially lethal asbestos, Evening Gazette reports.
And they said it was impossible to estimate how many Cleveland Fire Brigade
staff might be affected by the deadly dust.
Now union chiefs are worried about the future health of other firefighters
and their families who may also have been exposed to asbestos.
Jeff Crawford, health and safety coordinator for the Cleveland branch of the
Fire Brigades' Union, said the Middlesbrough Station was built in 1939 and he
believed the asbestos had been removed about 10 to 15 years ago.
ASBESTOS LITIGATION: Hazard Not Found in Long Island High School
----------------------------------------------------------------
Authorities said that no asbestos particles were blown through a Long Island
high school's ventilation system after fumes forced students and staff to
evacuate the building, The Associated Press reports.
Hempstead District Superintendent Nathaniel Clay said that the high
school "received a clean bill of health — no asbestos" after a Sept. 24, 2007
evaluation.
Authorities said 15 students and two staff members asked to be taken to local
hospitals to be evaluated for possible exposure after the fumes shut down
Hempstead High School in the afternoon of Sept. 24, 2007.
Mr. Clay said construction workers failed to follow procedure and turned on
the school's ventilation system, drawing dust in and spreading it through the
school.
ASBESTOS LITIGATION: Concerns on Asbestos Halt Bldg. Demolition
----------------------------------------------------------------
Demolition of the historic Myer building in Hobart, Tasmania, Australia, has
been stopped on concerns about asbestos and other toxic dusts from the
wrecked site, ABC News reports.
Work to tear down the shell of the 19th century building began on Sept. 24,
2007, after it was gutted by a fire that burned through Sept. 22, 2007 and
Sept. 23, 2007.
However, workers from the Office of Workplace Safety halted work because they
were worried about asbestos and other toxic dusts escaping into the air.
Engineers are surveying the site and trying to determine how nearby buildings
will be affected by the demolition.
The incident controller says when safety controllers allow work to begin,
they will then knock down the rear wall.
Chris Tomes from the Tasmania Fire Service says the demolition is also being
delayed because of fears that adjoining buildings could be damaged.
ASBESTOS LITIGATION: Hazard Found During Va. School Renovation
----------------------------------------------------------------
Construction crews have found asbestos in Northside High School in Roanoke
County, Va., prompting the school to be closed on Sept. 20, 2007, abc 13
reports.
The building will reopen when state and federal health experts say it is
safe. However, they are not saying when that will be.
The asbestos, which was found while crews were working on an old library, has
been contained.
Over the summer, the entire school underwent a massive asbestos abatement
process, but crews obviously had not found this bit of asbestos.
ASBESTOS LITIGATION: Boston Replaces Asbestos Cleanup Contractor
----------------------------------------------------------------
A Boston Fire Department official, on Sept. 20, 2007, said the cleanup of a
burst steam pipe beneath Otis Street in Boston’s Financial District was
halted because the company hired for the work did not have a license to
remove asbestos, The Boston Globe reports.
Hazmat inspectors visited the site and determined that the company, Walton
Systems of Chelsea, was using the wrong type of truck and did not have the
license required to remove asbestos, according to Steve MacDonald, a
spokesman for the Boston Fire Department.
The 14-inch steam pipe burst as it was being repaired and spewed insulation
that contained asbestos in downtown Boston.
Mr. MacDonald said that fire officials measured the air quality on Otis
Street Wednesday on Sept. 19, 2007 and did not find harmful contaminants.
Trigen Energy Cos., which operates a 22-mile network of steam pipes beneath
the city, had hired LVI Services to clean up the area near Summer Street, Mr.
MacDonald said.
LVI in turn hired in Walton Systems, which was not licensed to do the work,
Mr. MacDonald added.
Fleet Environmental Services, which has an asbestos license, has been hired
to continue the cleanup.
ASBESTOS LITIGATION: Tersigni Probed for Alleged Billing Breach
----------------------------------------------------------------
The Associated Press reports that the United States Trustee for Region 3 is
seeking the appointment of an examiner to investigate the conduct of L.
Tersigni Consulting P.C., in W.R. Grace & Co. and G-I Holdings Inc.’s
bankruptcy cases on allegations of improper billing.
The U.S. Trustee and the U.S. Attorney for New Jersey have been investigating
the firm for a year now. They suspect that Loreto Tersigni, who died in May,
padded his firm's bills for years, the AP relates. The firm has worked in the
asbestos-related cases of Owens Corning, USG Corp., the U.S. unit of Swiss
engineering giant ABB Ltd., Federal-Mogul Corp., and Asarco Inc.
Court documents filed in W.R. Grace's bankruptcy cases indicate Mr. Tersigni
was allegedly improperly marking up the time charges on the firm’s fee
applications filed in numerous bankruptcy cases in which the firm was
employed. Specifically, it was alleged that prior to filing fee applications
with the court, Mr. Tersigni would receive internal time records from
employees at the firm who worked on the case.
It was also alleged that when preparing the firm's fee applications, Mr.
Tersigni would subsequently add on time for services that were not performed
by employees of the firm.
Results of a preliminary investigation show that the fee applications filed
by the firm in the asbestos cases since at least 2002 were improper because
time that was not worked was added to those fee applications.
The Associated Press notes that "months of Tersigni bills, which had been
submitted to the court for review and approval, have been withdrawn in both
the Federal-Mogul and W.R. Grace cases."
The AP further reports that Mr. Tersigni's firm earned these amounts from
these bankruptcy cases:
-- US$3 million from Armstrong World Industries Inc.
-- US$5 million from Owens Corning
-- US$4.6 million from USG Corp.
-- US$576,000 from Combustion Engineering
The Asbestos P.I. Claimants Committee in the Armstrong bankruptcy case
retained Tersigni Consulting as its accountant and financial advisor.
"The latest bill in Asarco's case shows a quarterly invoice of more than
US$500,000 from the accounting firm," the AP added.
(Armstrong Bankruptcy News, Issue No. 115; Bankruptcy Creditors' Service,
Inc. Phone 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Ky. Laborer Sues 46 Companies in Ill. Court
----------------------------------------------------------------
Herschel Belt of Kentucky sued 46 corporations in an asbestos-related lawsuit
filed on Sept. 21, 2007 in Madison County Circuit Court, Ill., The Madison
St. Clair Record reports.
Mr. Belt alleges that he was exposed to asbestos while employed by the Heat &
Frost Union, Local 37 in Evansville Ind., from 1965 to 1996 as an insulator
at various locations.
Mr. Belt claims that during the course of his employment he was exposed to
and inhaled, ingested or otherwise absorbed asbestos fibers emanating from
certain products he was working with and around.
According to the complaint, Mr. Belt was diagnosed with mesothelioma on July
17, 2007.
Mr. Belt claims the defendants knew or should have known that the asbestos
fibers contained in their products had a toxic, poisonous and highly
deleterious effect upon the health of people.
Mr. Belt also alleges that the defendants included asbestos in their products
even when adequate substitutes were available and failed to provide any or
adequate instructions concerning the safe methods of working with and around
asbestos.
Mr. Belt also claims that the defendants failed to require and advise
employees of hygiene practices designed to reduce or prevent carrying
asbestos fibers home.
Mr. Belt also claims that he has sought, but has been unable to obtain, full
disclosure of relevant documents and information from the defendants leading
him to believe the defendants destroyed documents related to asbestos.
Mr. Belt claims that as a result of each defendant breaching its duty to
preserve material evidence by destroying documents and information he has
been prejudiced and impaired in proving claims against all potential parties.
The complaint states that Mr. Belt also suffers "great physical pain and
mental anguish, and also will be hindered and prevented from pursuing his
normal course of employment, thereby losing large sums of money."
Mr. Belt seeks at least US$550,000 in damages for negligence, willful and
wanton acts, conspiracy, and negligent spoliation of evidence among other
allegations.
Timothy Hulla, of the Law Offices of Michael Bilbrey of Edwardsville, Ill.,
represents Mr. Belt.
Case No. 07 L 839 has been assigned to Circuit Court Judge Daniel Stack.
ASBESTOS LITIGATION: Inquest Links Electrician’s Death to Hazard
----------------------------------------------------------------
A South East Suffolk Magistrates’ Court inquest, on Sept. 25, 2007, heard
that the death of 61-year-old electrician Michael Trinder was probably caused
by exposure to asbestos, Evening Star reports.
Mr. Trinder, of East Bergholt, Suffolk, England, was diagnosed with
mesothelioma in February 2006 and died on June 26, 2007 at the St.
Elizabeth’s Hospice, Ipswich.
During an inquest, coroner Dr. Peter Dean read from statements from Mr.
Trinder’s family, which said he had trained as an electrician during his
youth.
Since then, Mr. Trindel had studied at Loughborough University and the
University of Essex, before working as an acoustic consultant to the air
conditioning industry.
The cause of Mr. Trindel’s death was given as mesothelioma, which can be
caused by asbestos exposure, by consultant respiratory physician Nicholas
Innes.
Dr. Dean said, “While he was ill Mr. Trinder said the only exposure to
asbestos he could recall was when changing soffit boards. However he could
not rule out that he may have encountered it during his earlier training as
an electrician, although he had no recollection of contact. We are left with
the question of whether this was industrial exposure or domestic exposure, or
one of the very small percentage of cases where there was no exposure at all.”
Dr. Dean recorded an open verdict.
ASBESTOS LITIGATION: EPA Says Church in Ill. Wrongly Demolished
----------------------------------------------------------------
The Illinois Environmental Protection Agency claims that Ronnie E. McCoy, a
local contractor, illegally demolished the former Mount Sinai Baptist Church
in East St. Louis, Ill., as the site contained asbestos, Belleville News-
Democrat reports.
The IEPA asked Illinois Attorney General Lisa Madigan to take action against
Mr. McCoy of McCoy Construction in East St. Louis, Ill.
Mr. McCoy owns the property at 1239 Gaty Ave., in which he claims the
building had been abandoned for more than eight years.
IEPA spokeswoman Maggie Carson said the IEPA alleged Mr. McCoy improperly
handled asbestos, failed to have a licensed asbestos contractor oversee the
demolition in early July and failed to notify the IEPA of the demolition.
Ms. Carson said the IEPA inspected the site after the demolition in response
to a complaint. Materials like floor tile and pipe insulation tested positive
for asbestos, so the attorney general was notified.
The IEPA asked Mr. McCoy to stop all activity on the site, keep it wet and
discourage public access to the area with asbestos-warning signs and fencing.
Ms. Carson said the IEPA must be notified 10 days before demolition. State
and federal law require that asbestos be removed before demolition.
Ms. Carson said the IEPA had been monitoring the site and was aware that
demolition was a possibility, but that McCoy Construction demolished the
building before an IEPA inspection and dumped contaminated materials in a
nearby landfill.
ASBESTOS LITIGATION: Court Affirms RHI AG’s Reorganization Plans
----------------------------------------------------------------
RHI AG, on Sept. 26, 2007, said that a U.S. Bankruptcy Court approved
reorganization plans of former affiliates, bringing closer an end to woes
triggered by asbestos-related claims, Reuters reports.
In a statement, RHI said that the plan for its former companies, including
North American Refractories Co., needs further approval by the District
Court, which can then be appealed within a month.
According to RHI, if the reorganization plan enters into force after that
period, RHI will have full protection from all remaining asbestos damage
claims against its former affiliates in the United States.
RHI wrote down all its U.S. assets in 2001, when the asbestos claims together
with a global slump of the steel industry nearly pushed it into insolvency.
The reorganization plans for the companies were filed in 2005.
Final approval of the plan will have no negative earnings impact but will
trigger a final US$40 million payment to RHI from Honeywell International Inc.
Vienna, Austria-based RHI AG manufactures heat-resistant refractory products.
The Company’s refractories are used in high-temperature industrial processes
such as steelmaking, copper and aluminum smelting, and glass production, and
in the construction of industrial kilns. The Company has manufacturing and
sales operations in four continents.
ASBESTOS LITIGATION: Kans. Jail Demolition Delayed Due to Hazard
----------------------------------------------------------------
Crews stopped the demolition of Anderson County Jail in East Kansas after
asbestos was found shortly after starting the project, The Associated Press
reports.
Workers got four hits into the building when they noticed the asbestos
material on Sept. 19, 2007.
The jail was built in the 1920s next to the Anderson County courthouse in
Garnett, Kans. Officials proposed to have it removed and replaced with a new
facility.
However, new jail has already been put on hold after construction bids came
in above the US$5.5 million estimate.
ASBESTOS LITIGATION: Auditor Gen. Says 8 Agencies Breaching Laws
----------------------------------------------------------------
Auditor General Colin Murphy says that eight West Australia government
agencies are breaking asbestos laws, ABC News reports.
Mr. Murphy has found that these government agencies do not know if their
buildings contain asbestos.
Mr. Murphy says the Fire and Emergency Services Authority, WA Police, and the
State Planning Commission do not have any type of asbestos register for their
buildings. Another five government departments had incomplete registers at
the time of the audit.
Under the law, all agencies were required to establish a register by the end
of 2005, or face a fine of up to AUD50,000.
Mr. Murphy says the absence of a register does not mean that buildings are
unsafe. He said, "Government has done quite a bit to address the asbestos
risk, but here is an issue where agencies are not up to date with their
registers and their management plans and they really need to get those in
place."
Asbestos products are usually found in pre-1990 buildings.
ASBESTOS LITIGATION: Union Leader Examines Compensation Levels
----------------------------------------------------------------
Paul Cooper, a former York Carriageworks union leader, questions the levels
of compensation paid to asbestos victims, The Press reports.
Mr. Cooper, on Sept. 26, 2007, claimed that sufferers and their families were
getting less in damages than criminals who injure themselves.
Mr. Cooper said, "We continue to have victims/sufferers of asbestos
mesothelioma facing a death sentence, with wives and children receiving
little more than GBP200,000 in compensation for their loss. Criminals who
self-injure get GBP500,000, even though they suffer no losses whilst in
prison. It is time for our workers to have real justice."
Mr. Cooper said in a letter to York MP Hugh Bayley that the Government had
failed to act on a Law Commission report of 1999, recommending increases in
damages for victims of serious diseases like abestosis and mesothelioma.
Mr. Cooper claimed the Government was looking at the law of damages, and was
planning to study various Law Commission reports from the 1990s which had not
been acted upon, but the review had left out the crucial 1999 report.
Scores of former Carriageworks employees have died from mesothelioma over the
years, following widespread exposure to asbestos, particularly in the 1950s,
1960s, and the early 1970s.
Hugh Bayley said he had been campaigning on behalf of Carriageworks asbestos
victims since becoming MP, and he had helped ensure that they remained
entitled to compensation when the railway industry was privatized in the
1990s.
Mr. Bayley said he had only recently signed a Commons Early Day Motion
calling for people suffering from pleural plaques, scarring of lung tissues
caused by exposure to asbestos, to be given more compensation.
ASBESTOS LITIGATION: Asbestos in Bldg. Materials Prompts Checks
----------------------------------------------------------------
An incident in which barge boards at a Clitheroe, U.K., home were found to
contain asbestos has stressed the need to carry out proper checks before
working on homes built before the 1970s, The Clitheroe Advertiser and Times
reports.
The Amosite (brown) asbestos was found in material tested by specialists.
Consequently the barge boards and fascias were put on without damaging the
Amosite boards.
The unnamed property owner of the property had sufficient knowledge of the
problems surrounding asbestos to obtain a second opinion on the material he
discovered. A sample was sent away to a laboratory and was found to contain
Amosite.
Although there is strict legislation in place for businesses regarding
asbestos and its removal, when it comes to private homes, many people feel
the legislation falls down.
In the Ribble Valley, there are believed to be hundreds of properties which
will still contain some form of asbestos, whether in gutters, outbuildings,
roof structures, floor tiles or elsewhere.
ASBESTOS LITIGATION: Court Upholds Board Ruling in Andres Matter
----------------------------------------------------------------
The Supreme Court, Appellate Division, 3rd Department, New York, upheld a
Workers’ Compensation Board ruling, dated June 29, 2006, which determined
that Workers’ Compensation Law is inapplicable, in an asbestos case filed by
Jane M. Andres for her decedent.
The case was styled In the Matter of the Claim of Jane M. Andres v.
Occidental Chemical et al. and Special Funds Conservation Committee.
Judges Mercure, Peters, Spain, Carpinello, and Kane entered decision of the
case on Sept. 20, 2007.
In 1994, Ms. Andres’ decedent filed two workers' compensation disability
claims due to asbestos exposure, one for pulmonary illness and one for colon
cancer, which were both closed in February 1995 for lack of prima facie
medical evidence.
Ms. Andres’ decedent died in March 2005 and she filed the instant claim for
death benefits in November 2005. The employer controverted the claim and
argued that, if an award is made, the Special Funds Conservation Committee
should be responsible under Workers' Compensation Law ss 25-a.
Ultimately, the Workers' Compensation Board determined that because no date
of disablement could be established based on the record as developed, the
employer had not demonstrated that the requisite passage of time had occurred
to shift potential liability to the Special Funds.
The employer appealed.
The Supreme Court stated that no date of injury can be established on the
record before it and, therefore, it is not possible to determine whether
Workers' Compensation Law ss 25-a applied to shift liability to the Special
Funds.
Consequently, the Supreme Court found no reason to disturb the Board's
determination. The Supreme Court, without costs, affirmed the Board’s
decision.
Jared L. Garlipp of Williams & Williams, Buffalo, N.Y., represented
Occidental Chemical and other appellants.
Steven Licht, Special Funds Conservation Committee, Albany, N.Y., (Jill
Waldman of counsel), for Special Funds Conservation Committee, represented
respondents.
ASBESTOS LITIGATION: Ship-Dismantling Order Criticized in India
----------------------------------------------------------------
An environmental groups’ coalition, the Indian Platform on Ship-breaking, on
Sept. 20, 2007, said it will challenge a decision by India's Supreme Court
allowing a Norwegian cruise liner, the Blue Lady, to be dismantled, claiming
the ship contained toxic materials, International Herald Tribune reports.
The Blue Lady is anchored along the coast of Alang in the western state of
Gujarat.
Two judges in India's Supreme Court had granted permission for the ship to be
dismantled on the basis of a court-commissioned report by technical experts.
The experts said there were no radioactive materials and whatever asbestos is
in the ship would be handled and disposed of properly, the Press Trust of
India news agency reported.
Environmental groups including Greenpeace have alleged that the ship contains
radioactive materials and asbestos that could endanger the lives of nearly
700 workers who would dismantle it and nearly 30,000 villagers living in the
area.
On Sept. 20, 2007, Gopal Krishna, an Indian Platform spokesman, told
reporters it would file a petition seeking a review of the order from a
larger group of Supreme Court judges.
The Indian Platform on Ship-breaking includes Greenpeace, the Ban Asbestos
Network of India, the Corporate Accountability Desk and the Basel Action
Network.
The dismantling process would take more than a year.
Environmental and labor groups have for years urged Indian authorities to
sharply curtail, or simply stop, the work being done at the Alang ship
breaking yard, where old ships are run aground in the shallows just offshore
and then dismantled largely by hand.
Old ships are not broken up in the West because of high labor costs and
because they contain hazardous materials, including asbestos, that would not
pass health standards.
That has made Asia, where regulations are often lax or nonexistent, a cheap
alternative.
Environmentalists say that ship breaking in India and Bangladesh is done
largely by uneducated migrants who are given little safety training or
equipment.
ASBESTOS LITIGATION: FCR, Committee Seek ASARCO Database Access
----------------------------------------------------------------
The Future Claims Representative and the Asbestos Committee ask the U.S.
Bankruptcy Court to compel ASARCO LLC to produce all financial databases and
information to give them total, immediate and unfettered access to all
databases and records.
The FCR and the Asbestos Committee also ask the Court to continue the
November 2007 estimation hearing to a date to be determined and suspend the
interim pre-trial deadlines until the time an estimation hearing date can be
established.
Debra L. Innocenti, Esq., at Oppenheimer, Blend, Harrison & Tate Inc., in San
Antonio, Tex., counsel for the FCR, tells the Court that ASARCO has been
withholding crucial financial evidence since the Asbestos Estimation Case
Management Order was established.
The time for ASARCO to produce all relevant financial documents has passed
and even if it were to produce those documents, the FCR and the Asbestos
Committee will not have time to examine them before the November 2007
estimation hearing dates, Ms. Innocenti points out.
Thus, an extension of the hearing date is warranted, Ms. Innocenti asserts.
(ASARCO Bankruptcy News, Issue No. 55; Bankruptcy Creditors' Service, Inc.
215-945-7000 FAX 215-945-7001)
New Securities Fraud Cases
FREMONT GENERAL: Cohen Milstein Files Cal. Securities Fraud Suit
----------------------------------------------------------------
The law firm Cohen, Milstein, Hausfeld & Toll, P.L.L.C. has filed a lawsuit
in the United States District Court for the Central District of California on
behalf of its client and on behalf of other similarly situated purchasers of
Fremont General Corporation common stock between May 9, 2006 through and
including February 27, 2007.
The complaint charges Fremont General and several of its officers and
directors during the Class Period with violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934. It is alleged that defendants omitted
or misrepresented material adverse facts about the Company's financial
condition, business prospects, and revenue expectations during the Class
Period.
Fremont General operates as the holding company for Fremont Investment & Loan
(FIL), which engages in residential real estate lending business in the
United States. The Company originates non-prime or sub-prime residential real
estate loans through independent brokers on a wholesale basis, which are
primarily sold to third party investors.
Specifically, the complaint alleges that, during the Class Period, defendants
issued numerous materially false and misleading statements which caused
Fremont General's securities to trade at artificially inflated prices. As
alleged in the complaint, these statements were materially false and
misleading because they misrepresented and failed to disclose that:
(1) the Company was operating with management whose
policies were detrimental to FIL;
(2) the Company was operating FIL without effective risk
management policies and procedures in place in relation
to FIL's primary line of business of brokered sub-prime
mortgage lending;
(3) the Company was operating FIL without effective risk
management policies and procedures in place in relation
to FIL's other primary line of business of commercial
real estate construction lending;
(4) the Company was operating with inadequate underwriting
criteria and excessive risk in relation to the kind and
quality of assets held by FIL;
(5) the Company was operating with a large volume of poor
quality loans and was engaging in unsatisfactory
lending practices;
(6) the Company was operating without an adequate strategic
plan in relation to the volatility of FIL's business
lines and the kind and quality of assets held by FIL
and in such a manner as to produce low and
unsustainable earnings;
(7) the Company was operating with inadequate provisions
for liquidity in relation to the volatility of FIL's
business lines and the kind and quality of assets held
by FIL;
(8) the Company was marketing and extending adjustable-rate
mortgage ("ARM") products to sub-prime borrowers in an
unsafe and unsound manner that greatly increased the
risk that borrowers would default on the loans or
otherwise cause losses to FIL;
(9) the Company was making mortgage loans without
adequately considering the borrower's ability to repay
the mortgage according to its terms; and
(10) the Company was operating inconsistently with the
Federal Deposit Insurance Corporation's ("FDIC")
Interagency Advisory on Mortgage.
According to the complaint, on February 27, 2007, after the market closed,
Fremont General issued a press release announcing that it was delaying the
filing of its 2006 10-K with the SEC and that it "intends to file a Form 12b-
25 with the Securities and Exchange Commission explaining the reasons
therefor." On this news, the Company's share price declined $2.84 per share,
or 24 percent, to close on February 28, 2007, at $8.81 per share, on
unusually heavy trading volume.
Then, on March 2, 2007, the Company did in fact file a Form 12b-25 with the
SEC and informed investors that it was unable to timely file its Form 10-K
and that it intended to exit its sub-prime residential real estate lending
business. Moreover, the Company announced that Fremont General, FIL, and
Fremont General Credit Corporation would enter into a voluntary cease and
desist order with the FDIC related to allegations of unsafe or unsound
banking practices.
Interested parties may move the court no later than November 13, 2007 for
lead plaintiff appointment.
For more information, contact:
Steven J. Toll, Esq.
Scott Evans
Cohen, Milstein, Hausfeld & Toll, P.L.L.C.
1100 New York Avenue, N.W.
West Tower, Suite 500
Washington, D.C. 20005
Telephone: (888) 240-0775 or (202) 408-4600
Email: stoll@cmht.com or sevans2@cmht.com
W HOLDING: Schatz Nobel Announces Securities Fraud Lawsuit
----------------------------------------------------------
The law firm of Schatz Nobel Izard P.C. announced that a lawsuit seeking
class-action status has been filed in the United States District Court for
the District of Puerto Rico on behalf of all persons who purchased the common
stock of W Holding Company, Inc. between April 24, 2006 and June 26, 2007,
inclusive.
The Complaint charges that W Holding and certain of its officers and
directors violated federal securities laws. Specifically, during the Class
Period, defendants issued materially false and misleading statements and
failed to disclose:
(i) that W Holding's financial results were artificially
inflated due to the Company's failure to write-down the
Inyx loans which were impaired. W Holding has now
admitted that it is not likely to collect on the Inyx
loans and that it will be toting a charge of at least
$80 million;
(ii) that the Company improperly delayed the recognition of
its impaired assets in order to inflate its reported
income and asset quality;
(iii) that the Company's "regulatory capital" was similarly
overstated; and
(iv) that the Company's "book value" per share was
materially overstated; and as more fully described in
the complaint, the Company's published financial
statements violated U.S. Generally Accepted Accounting
Principles.
According to the Complaint, on June 26, 2007, W Holding filed a Form 8-K with
the SEC which reported that the Company had determined that "one of its
larger asset-based loans" is impaired. In response to the Company's
announcement, the price of W Holdings stock dropped from $5.01 per share to
$3.14 per share and continued to decline, falling to $2.64 per share on June
29, 2007.
Interested parties may move the court no later than November 20, 2007 for
lead plaintiff appointment.
For more information, contact:
Wayne T. Boulton
Nancy A. Kulesa
Schatz Nobel Izard P.C.
Phone: (800) 797-5499
E-mail: firm@snilaw.com
Website: http://www.snilaw.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.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Ma. Cristina Canson, and Janice Mendoza, Editors.
Copyright 2007. All rights reserved. ISSN 1525-2272.
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Additional e-mail subscriptions for members of the same firm for the term of
the initial subscription or balance thereof are $25 each. For subscription
information, contact Christopher Beard at 240/629-3300.
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