/raid1/www/Hosts/bankrupt/CAR_Public/090626.mbx
C L A S S A C T I O N R E P O R T E R
Friday, June 26, 2009, Vol. 11, No. 125
Headlines
APPLIED SIGNAL: Securities Lawsuit Deal Pending Final Approval
BAKERS FOOTWEAR: Store Managers' Suit Settlement Approved in May
BANK OF AMERICA: Lawyer Says Agape Lawsuits to be Consolidated
CANDELA CORP: Mass. Court Approves Shareholder Suit Settlement
CEMIG: Continues to Defend Lawsuits Over Environmental Matters
CEMIG: Defending Lawsuits by Consumers Over Rates and Increases
CEMIG: Suit Seeking Nullification of Agreement Remains Pending
CITY OF JACKSON: Federal Government to Join "Crawford" Lawsuit
COUGAR BIOTECHNOLOGY: Calif. Court Dismisses "Puzanov" Lawsuit
ENDESA CHILE: Awaits Ruling on Niteroi Union's Resort v. Ampla
ENDESA CHILE: Emgesa Defends Lawsuit Over Damage at Tomine Dam
ENDESA CHILE: Emgesa Still Faces Lawsuit Over Contaminated Water
ENDESA CHILE: Suit v. Emgesa Over Bogota River Pollution Pending
NEUBERGER BERMAN: Reaches Settlement in Hartford Life ERISA Suit
LEE COUNTY: Property Appraiser Fla. Faces Suit Over High Values
LUFKIN INDUSTRIES: Federal Court Orders $5M Payment in "McClain"
MATRIXX INITIATIVES: June Hearing Set for Appeal of "Siracusano"
ORION ENERGY: Ruling on Bid to Junk Consolidated Lawsuit Pending
PFIZER INC: N.J. Judge Stays Celebrex-Related Securities Lawsuit
PRESTIGE BRANDS: Consolidated Suit Settlement Pending Approval
QUEST ENERGY: Royalty Owners' Lawsuit v. Quest Cherokee Pending
QUEST ENERGY: To Defend Consolidated Securities Suit in Okla.
REMEC INC: Pretrial Conference for Securities Suit on June 26
SAN DIEGO: Judge considers Class Certification for Fire Victims
SCOTT COUNTY: Plaintiff's Bankruptcy Stays Ark. Suit v. Assessor
SPRINT SOLUTIONS: Judge Reject Group Suit Over Taxes, Refunds
SQUARE ENIX: Faces Calif. Litigation Over Final Fantasy XI Fees
TAYLORVILLE CHIROPRACTIC: Faces Ill. Lawsuit Over "Junk Faxes"
TED LAY: Faces Illinois Litigation Alleging TCPA Violations
THOMSON CANADA: Ontario Court Provisionally Approves Settlement
UNITED STATES: Circuit Court Issues Ruling in Ala. Privacy Suit
WASHINGTON: Cities Face Lawsuit Over Fines From Traffic Cameras
New Securities Fraud Cases
SHEARSON FINANCIAL: Walden Law Firm Files Securities Fraud Suit
Asbestos Alerts
ASBESTOS LITIGATION: W. R. Grace Actions Expunged Last April 14
ASBESTOS LITIGATION: Remand Revisions Entered in Grenier Lawsuit
ASBESTOS LITIGATION: Court Affirms Ruling in Rozmyslowicz Action
ASBESTOS LITIGATION: Court Upholds Ruling in Buck Kreihs Action
ASBESTOS LITIGATION: Court Upholds Revocation of Hygeia License
ASBESTOS LITIGATION: 37% of Victims Unsure of Exposure Location
ASBESTOS LITIGATION: Hextable Builder's Death Linked to Exposure
ASBESTOS LITIGATION: Scottish Victims to Get Payout for Illness
ASBESTOS LITIGATION: Mallam Denies Causing Able UK Shipyard Fire
ASBESTOS LITIGATION: Hazard Found at Historic Gastonia Hospital
ASBESTOS LITIGATION: Asbestos Discovered in 60 Redbridge Schools
ASBESTOS LITIGATION: Aussie Local Seeks Review of School Cleanup
ASBESTOS LITIGATION: Exposure Cases Expected to Rise in Nahariya
ASBESTOS LITIGATION: Cleanup Plans in Westward Ho! Site Underway
ASBESTOS LITIGATION: 19 Cases Filed in Madison From June 1 to 5
ASBESTOS LITIGATION: 3 La. Firms Fined $112T for OSHA Violations
ASBESTOS LITIGATION: Inquest Rules on Peterborough Local's Death
ASBESTOS LITIGATION: U.K. Gardener Awarded GBP205,000 in Damages
ASBESTOS LITIGATION: Canadian Gov't. to Clean Up Old Radar Sites
ASBESTOS LITIGATION: Cape Building Worker Gets GBP84T in Payout
ASBESTOS LITIGATION: Northeast Workers Charged for CAA Breaches
ASBESTOS LITIGATION: Gordon-Smith Facing Asbestos Cleanup Charge
ASBESTOS LITIGATION: GM Objection in Bankruptcy Filed on June 19
ASBESTOS LITIGATION: Baylor "Unaware" of CSX Transportation Case
ASBESTOS LITIGATION: $440Mil Victory Secured in Travelers Action
ASBESTOS LITIGATION: CSR Ltd. to Address Asbestos Exposure Cases
ASBESTOS LITIGATION: Court Upholds Board Ruling in Dechio Action
ASBESTOS LITIGATION: Court Reverses Board Ruling in Stec's Claim
ASBESTOS LITIGATION: N.Y. Court Upholds Ruling in E.W. Tompkins
ASBESTOS LITIGATION: 29 New Cases Filed in Ill. From June 8 - 12
ASBESTOS LITIGATION: Cleanup at PHCC Could Start in August 2009
ASBESTOS LITIGATION: Taymor Fined $12,625 for Cleanup Violations
ASBESTOS LITIGATION: N.H. Local Charged for Disposal Violations
ASBESTOS LITIGATION: Northern Hotel Slated for Asbestos Cleanup
ASBESTOS LITIGATION: Deena Products Site in Ky. Set for Cleanup
ASBESTOS LITIGATION: Two Thieves Snatch Lathan's Asbestos Payout
ASBESTOS LITIGATION: Asbestos Found at Union Pacific's Work Site
ASBESTOS LITIGATION: Ross County to Clear Hazard from Courthouse
ASBESTOS LITIGATION: Asbestos Discovered at Homer Middle School
ASBESTOS LITIGATION: Probe Over Roanoke School Hazard Commences
ASBESTOS LITIGATION: Abatement at Bridgeview Elementary Ongoing
ASBESTOS LITIGATION: Asbestos Found in Rubbish Bins in Melbourne
ASBESTOS LITIGATION: Appellate Court Upholds Ruling in AGCO Case
ASBESTOS LITIGATION: Texas Court Issues Split Ruling in La Joya
ASBESTOS LITIGATION: Hardie Mulls Transferring Base to Ireland
ASBESTOS LITIGATION: Kubota Cites JPY200M for Claims at March 31
ASBESTOS LITIGATION: JPY1.15B Spent for Kubota Cases at March 31
ASBESTOS LITIGATION: Grupo Mexico Raises Asarco LLC Bid to $3.1B
ASBESTOS LITIGATION: Insurer to Pay $16M to Resolve Pfizer Cases
ASBESTOS LITIGATION: Specter Urges USEPA to Remediate BoRit Site
*********
APPLIED SIGNAL: Securities Lawsuit Deal Pending Final Approval
--------------------------------------------------------------
Settlement of a remanded consolidated securities class-action
suit against Applied Signal Technology, Inc. remains subject to
the U.S. District Court for the Northern District of
California's final approval.
On March 11 and July 19, 2005, purported securities class-action
complaints were filed against the company. Later, these suits
were consolidated as, "In re Applied Signal Technology Inc.
Securities Litigation, Master File No. 4:05-cv-1027 (SBA)."
The amended consolidated complaint is brought on behalf of a
putative class of persons who purchased the company's securities
from Aug. 24, 2004, to Feb. 22, 2005. The shareholders sued
Applied Signal in the U.S. District Court for the Northern
District of California, claiming the company's work reports were
deceptive.
The complaints name the company, its chief executive officer,
and its chief financial officer as defendants, and allege that
false and misleading statements regarding the company were
issued during the class period.
On Feb. 8, 2006, the court dismissed the case with prejudice and
entered judgment in defendants' favor.
The plaintiffs appealed the dismissal on March 23, 2006, and the
appeal was heard on Dec. 6, 2007 (Class Action Reporter, Jan.
24, 2008).
In the June 5, 2008 opinion, Judge Alex Kozinski of the U.S.
Court of Appeals for the Ninth Circuit reversed the dismissal
and remanded to the District Court. Judge Kozinski said four
former Applied Signal employees were willing to testify in
support of the plaintiffs' claims, and disputes about the
veracity of some evidence were a matter for discovery.
In its defense, Applied Signal said the plaintiffs had not
sufficiently established that the company had even received
three of the four stopwork orders or that these orders put a
stop to work accounted for in the backlog.
However, the appeals court rejected the argument, noting that
the suit identified four employee witnesses who would testify to
the existence of the disputed stopwork orders.
"Defendants quibble that these witnesses weren't in a position
to see the stopwork orders firsthand because they were
'engineers or technical editors' rather than managers. But any
number of company employees would be in a position to infer the
issuance of stopwork orders, which would have had the very
obvious effect of putting numerous employees out of work," the
appeals court said. "It's entirely plausible that 'engineers or
technical editors' would know or could reasonably deduce that
the company had suffered setbacks," it added.
The court also ruled that the shareholders had claimed with the
proper particularity that these stopwork orders were counted as
backlog, and that the company's insistence that work may have
resumed before the announcement of the backlog was a matter for
a jury. So, too, was the company's argument that reasonable
investors could well understand that stopped work was included
in the backlog.
The plaintiffs had also sufficiently alleged an economic loss
resulting from the company's misleading statements, Judge
Kozinski said (Class Action Reporter, June 19, 2008).
The parties have agreed to a settlement, which will be paid by
our insurers. The settlement has been given preliminary
approval, and is subject to final Court approval, which cannot
be guaranteed, according to its June 8, 2009 Form 10-Q Filing
with the U.S. Securities and Exchange Commission for the quarter
ended May 1, 2009.
The suit is "In Re: Applied Signal Technology, Inc. Securities
Litigation, Case No. 05-CV-01027," filed in the U.S. District
Court for the Northern District of California under Judge
Saundra Brown Armstrong.
Representing the plaintiffs is:
Robert S. Green, Esq. (rsg@classcounsel.com)
Green Welling, LLP
595 Market Street, Suite 2750
San Francisco, CA 94105
Phone: 415-477-6700
Fax: 415-477-6710
Representing the defendants is:
David A. Priebe, Esq. (david.priebe@dlapiper.com)
DLA Piper US, LLP
2000 University Avenue
East Palo Alto, CA 94303-2248
Phone: 650-833-2000
Fax: 650-833-2001
BAKERS FOOTWEAR: Store Managers' Suit Settlement Approved in May
----------------------------------------------------------------
The settlement of a class-action lawsuit filed by two former
store managers against Bakers Footwear Group, Inc. was approved
in May 2009, according to its June 8, 2009 Form 10-Q Filing with
the U.S. Securities and Exchange Commission for the quarter
ended May 2, 2009.
On June 2, 2008 the company was served with the class-action
lawsuit filed in the U.S. District Court for the Central
District of California.
The store managers alleged that they should have been classified
as non-exempt employees under both the California Labor Code and
the Fair Labor Standards Act and sought an unspecified amount of
damages.
The store managers filed the lawsuit on behalf of California
based store managers.
In December 2008, the parties agreed to a cash settlement, which
the court has preliminary approved.
The court approved the settlement on May 14, 2009.
Bakers Footwear Group, Inc. -- http://www.bakersshoes.com/-- is
engaged in the sale of shoes and accessories under the Bakers
and Wild Pair names. The company is a full-service retailer
specializing in moderately priced fashion footwear. Bakers
Footwear products include private-label and national brand
dress, casual, and sport shoes, boots, sandals and accessories,
such as handbags and costume jewelry.
BANK OF AMERICA: Lawyer Says Agape Lawsuits to be Consolidated
--------------------------------------------------------------
The attorney behind a $400 million class-action suit against
Bank of America and the futures trading companies through which
alleged Ponzi schemer Nicholas Cosmo lost nearly $100 million
has confirmed that he is combining his lawsuit two other class-
action suits that were also filed in federal court, Michael H.
Samuels of Long Island Business News reports.
Manhattan attorney Jacob Zamansky, Esq, of Zamansky & Associates
told LIBN that the new complaint will be filed within the next
30 days. He adds that he will be the point-person for the new
consolidated complaint.
Previously, David Winzelberg of Long Island Business News
reported that in a lawsuit filed on March 26, 2009, Manhattan
attorney Jacob Zamansky, Esq, of Zamansky & Associates claims
that the bank "aided and abetted, encouraged, and rendered
substantial assistance" to the $380 million fraud federal
prosecutors say was perpetrated by Mr. Cosmo's company, Agape
World, Inc. (Class Action Reporter, March 31, 2009).
The suit claims that the Bank of America branch in West
Hempstead assigned more than one bank employee to work out of
Mr. Cosmo's office in Hauppauge and supplied "bank equipment
and/or computer systems and direct access to the bank's accounts
and systems," reports Long Island Business News.
"Our investigation revealed that the Bank of America had a
branch office at Agape," Mr. Zamansky told Long Island Business
News.
The Long Island Business News reported that the federal charges
against Mr. Cosmo allege that he lost nearly $100 million in
online futures trading and Mr. Zamansky claims the bank
improperly approved those transfers of funds.
The suit claims that the futures trading companies are also at
fault because Mr. Cosmo had been barred from associating with
the securities industry. The suit says that the trading
companies should have also verified the "source and propriety"
of the millions that came from a convicted felon.
For more details, contact:
Jacob Zamansky, Esq.
Zamansky & Associates
50 Broadway - 32nd Floor
New York, NY 10004
Phone: (212) 742-1414
Fax: (212) 742-1177
CANDELA CORP: Mass. Court Approves Shareholder Suit Settlement
--------------------------------------------------------------
Candela Corporation (NASDAQ: CLZR) announced that the
United States District Court for the District of Massachusetts
granted final approval of the settlement of the previously-
disclosed consolidated shareholder class action lawsuit brought
against the Company and certain of its current and former
officers and directors.
In addition, the Superior Court for Middlesex County,
Massachusetts granted final approval of the settlement of the
previously-disclosed derivative lawsuit brought against certain
of Candela's current and former officers and directors.
Based on the final approval by both Courts and consistent
with the terms of the respective settlement agreements, all
claims against the Company and its current and former officers
and directors have been dismissed with prejudice and without any
admission of liability or wrongdoing.
Candela Corp. -- http://www.candelalaser.com-- manufactures and
distributes innovative clinical solutions that enable
physicians, surgeons, and personal care practitioners to treat
selected cosmetic and medical conditions using lasers, aesthetic
laser systems, and other advanced technologies. Founded near
Boston in 1970, Candela markets and services its products in 86
countries from offices and distributors in the United States,
Europe, Japan, China and other Asian locations. Candela
established the aesthetic laser market 20 years ago, and
currently has an installed base of over 13,500 systems
worldwide.
CEMIG: Continues to Defend Lawsuits Over Environmental Matters
--------------------------------------------------------------
Companhia Energetica de Minas Gerais (CEMIG) and its
subsidiaries remain defendants in several class action style
lawsuits involving environmental matters.
These proceedings and claims include court and administrative
disputes regarding certain environmental matters, protected and
Indian areas, environmental licenses and remediation of
environmental damages.
As of Dec. 31, 2008, the amount involved in these claims totaled
approximately BRL1.10 billion. Of this total amount, BRL6.6
million is related to proceedings for which the likelihood of
loss is evaluated as "probable," BRL1.01 billion is related to
proceedings for which the likelihood of loss is assessed as
"possible," and BRL80.2 million is related to proceedings for
which the likelihood of loss is assessed as "remote."
As of Dec. 31, 2008, the company had provisioned BRL6.6 million
for the payment of the contingencies assessed as "probable."
She class action style lawsuits may affect those other than the
parties directly involved, and these third parties may be
awarded other remedies as determined by the respective judges
and courts, according to Companhia Energetica de Minas Gerais'
June 19, 2009 Form 20-F Filing with the U.S. Securities and
Exchange Commission for the fiscal year ended Dec. 31, 2008.
Companhia Energetica de Minas Gerais (CEMIG) --
http://www.cemig.com.br-- is a Brazil-based company involved in
the energy sector. It is mainly engaged in the generation,
transmission and distribution of electric energy for industrial,
residential, commercial and rural consumption. The company is
also engaged in other businesses, such as natural gas
distribution in Minas Gerais through Companhia de Gas de Minas
Gerais (Gasmig); telecommunications through Empresa de Infovias
SA, which provides fiber-optics and coaxial cable network
installed along its transmission and distribution lines;
national and international consulting business through
Efficientia SA, which provides energy solutions for the
implementation and management of systems for electricity sector,
among others. In 2009, the company is due to start operating
abroad, through its subsidiary Transchile Charrua Transmision
SA, in the Chilean unit LT Charrua – Nueva Temuco.
CEMIG: Defending Lawsuits by Consumers Over Rates and Increases
---------------------------------------------------------------
Companhia Energetica de Minas Gerais (CEMIG) continues to defend
lawsuits and class actions brought by consumers, consumer rights
groups and the office of the public prosecutor of Minas Gerais.
The actions contest the rates the company charges its consumers,
the application of the rate increases determined by Agencia
Nacional de Energia Eletrica (ANEEL), the inflationary index
used to increase the company's rates and the rate subsidies
granted to low income consumers.
These lawsuits involve claims for the suspension of the rate
increases and for the reimbursement to the company's consumers
of twice the amount of any additional rates it collected.
All the company's rate increases are granted based on ANEEL's
prior authorization, according to the company's June 19, 2009
Form 20-F Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2008.
Companhia Energetica de Minas Gerais (CEMIG) --
http://www.cemig.com.br-- is a Brazil-based company involved in
the energy sector. It is mainly engaged in the generation,
transmission and distribution of electric energy for industrial,
residential, commercial and rural consumption. The company is
also engaged in other businesses, such as natural gas
distribution in Minas Gerais through Companhia de Gas de Minas
Gerais (Gasmig); telecommunications through Empresa de Infovias
SA, which provides fiber-optics and coaxial cable network
installed along its transmission and distribution lines;
national and international consulting business through
Efficientia SA, which provides energy solutions for the
implementation and management of systems for electricity sector,
among others. In 2009, the company is due to start operating
abroad, through its subsidiary Transchile Charrua Transmision
SA, in the Chilean unit LT Charrua – Nueva Temuco.
CEMIG: Suit Seeking Nullification of Agreement Remains Pending
--------------------------------------------------------------
Companhia Energetica de Minas Gerais (CEMIG) still faces a class
action requesting nullification of the Conduct Adjustment
Undertaking (TAC) signed between the Public Attorneys' Office
and the company.
The class action was brought against CEMIG and nine other
defendants ordering the restitution to public funds of the
amounts transferred to the defendant companies for
implementation of the Light for All (Luz para Todos) program.
The application for interim remedy was refused, and the
plaintiff appealed to the Regional Federal Appeals Court
(Tribunal Regional Federal).
The updated amount involved, of BRL1.44 billion, as of Dec. 31,
2008, refers to the request for restitution of the amounts
received by the companies that carried out the services
contracted by CEMIG in order to comply with such governmental
program, and fees of counsel.
The chance of loss is assessed as "possible," according to
Companhia Energetica de Minas Gerais' June 19, 2009 Form 20-F
Filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Dec. 31, 2008.
Companhia Energetica de Minas Gerais (CEMIG) --
http://www.cemig.com.br-- is a Brazil-based company involved in
the energy sector. It is mainly engaged in the generation,
transmission and distribution of electric energy for industrial,
residential, commercial and rural consumption. The company is
also engaged in other businesses, such as natural gas
distribution in Minas Gerais through Companhia de Gas de Minas
Gerais (Gasmig); telecommunications through Empresa de Infovias
SA, which provides fiber-optics and coaxial cable network
installed along its transmission and distribution lines;
national and international consulting business through
Efficientia SA, which provides energy solutions for the
implementation and management of systems for electricity sector,
among others. In 2009, the company is due to start operating
abroad, through its subsidiary Transchile Charrua Transmision
SA, in the Chilean unit LT Charrua – Nueva Temuco.
CITY OF JACKSON: Federal Government to Join "Crawford" Lawsuit
--------------------------------------------------------------
The U.S. Justice Department filed a motion to join a coalition
of disabled residents in a class-action lawsuit against the City
of Jackson and City of Jackson Public Transportation System, The
Jackson Clarion Ledger reports.
The suit was filed in Sept. 23, 2008 in the U.S. District Court
for the Southern District of Mississippi by Scott M. Crawford,
Dewone Banks, Jason Bunche, Gwendolyn Byrd, Lee Cole, Jan
Hawthorne, Irene Myers, Bonnie Thompson, Melvina Tobias, Eddie
Turner, Jerri Walton, Mississippi Coalition for Citizens with
Disabilities, and Mississippi Council for the Blind Jackson
Chapter, under the caption, "Crawford et al v. City of Jackson
et al., Case No. 3:2008-cv-00586."
Previously, The Jackson Clarion Ledger reported that the suit
asks for an injunction against the City of Jackson to force
compliance with the Americans with Disability Act and other
federal laws dealing with disabled access. The lawsuit seeks no
monetary damages (Class Action Reporter, Sept. 29, 2008).
The suit contends that wheelchair lifts "regularly break down"
on JATRAN's fixed-route buses and that the door-to-door service
provided by JATRAN's dozen "paratransit" buses is slow and
inefficient and "fails to provide even minimally adequate
service and is materially inferior to the JATRAN public
transportation available to people without disabilities."
For more details, contact:
Courtney A. Bowie, Esq. (courtney@cbowielaw.com)
LAW OFFICE OF COURTNEY BOWIE
P. O. Box 736
Jackson, MS 39205
Phone: 601/717-3107
Fax: 601/709-0250
Wendell C. Hutchinson, Esq. (wendell@mspas.com)
MISSISSIPPI PROTECTION & ADVOCACY SYSTEM, INC.
5305 Executive Place, Suite A
Jackson, MS 39206
Phone: 601/981-8207
Fax: 601/981-8313
- and -
Eugenia Esch, Esq. (eugenia.esch@usdoj.gov)
U. S. DEPARTMENT OF JUSTICE - Civil Rights Division
950 Pennsylvania Ave., N.W.-NYA
Washington, DC 20530
Phone: 202/514-3816
Fax: 202/305-9775
COUGAR BIOTECHNOLOGY: Calif. Court Dismisses "Puzanov" Lawsuit
--------------------------------------------------------------
Cougar Biotechnology, Inc. announced the voluntary
dismissal by the plaintiff of a class action complaint filed on
May 28, in the Superior Court of the State of California, Los
Angeles County.
In a release, the company noted that the complaint
captioned, "Puzanov v. Cougar Biotechnology, Inc., et al., Case
No. BC 414586," sought to enjoin the tender offer commenced by
Kite Merger Sub, Inc., a subsidiary of Johnson & Johnson, for
all of the outstanding shares of Cougar Biotechnology's common
stock at a price of $43.00 per share. Cougar will pay no
settlement or attorneys' fees or other expenses of the plaintiff
in connection with dismissal of the complaint.
Cougar also noted that the waiting period under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976 (HSR) applicable
to the tender offer was terminated on June 17. The termination
of the HSR waiting period satisfies one of the conditions of the
tender offer. Completion of the tender offer remains subject to
the tender of a majority of Cougar's outstanding shares of
common stock on a fully diluted basis and the satisfaction of
certain other conditions.
Cougar Biotechnology, Inc. --
http://www.cougarbiotechnology.com/-- is a biotechnology
company established to in-license and develop clinical stage
drugs, with a specific focus on the field of oncology.
ENDESA CHILE: Awaits Ruling on Niteroi Union's Resort v. Ampla
--------------------------------------------------------------
Ampla Energia e Servicos S.A. is waiting for the decision on the
resort filed the Union of Workers in the Niteroi Electrical
Energy Industry in a class action suit against Ampla, according
to Empresa Nacional de Electricidad SA's June 8, 2009 Form 20-F
Filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Dec. 31, 2008.
Ampla is a Brazilian distribution company operating in Rio de
Janeiro, owned by Endesa Brasil, S.A., a subsidiary of the
company's parent company, Enersis S.A..
In April 1989, the Niteroi Union, in representation of 2841
employees, launched an action claiming salary differences of
26.05% since February 1989 that were related to the economic
plan instituted by Decree Law 2.335/87, or "Summer Plan."
The suit was filed in the Niteroi Work Chamber, Labour Complaint
884/1989.
Ordinary proceedings have finished. The current discussion is
focused on the compliance with the final judicial decision where
execution motion to dismiss was filed. The main proceedings
were accepted in accordance with the execution motion to
dismiss.
The amount involved is BRL48.3 million, or approximately US$20.4
million.
Empresa Nacional de Electricidad SA (Endesa Chile) --
http://www.endesa.cl/-- is an electric generation company with
operations in Chile, Argentina, Colombia and Peru, and an equity
interest in Brazil. Endesa Chile's core business is electricity
generation. The company also participates in the engineering
services industry and has a tunnel concession.
ENDESA CHILE: Emgesa Defends Lawsuit Over Damage at Tomine Dam
--------------------------------------------------------------
Emgesa S.A. E.S.P. continues to defend a class action on its
responsibility for the environmental damage at the Tomine dam,
according to Empresa Nacional de Electricidad SA's June 8, 2009
Form 20-F Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2008.
Emgesa is a Colombian generation company controlled by Endesa
Chile.
Juan Andres Cano Garcia and others have filed a suit against
Emgesa and 18 other entities, including the ministries of mining
and the environment, Corporacion Autonoma Regional ("CAR"),
National Institute of Mines and various municipalities in the
zone of influence.
The suit was filed in Administrative Circuit Court, Case No.
2005-1990.
This is a Class Action claiming that Emgesa is responsible for
environmental damage at the Tomine dam and specifically the
reduction of the volume of water in the reservoir since 1997 and
an abundance of non-native vegetation, thus neglecting to comply
with its function of guaranteeing public assets that it uses to
carry on business.
The plaintiffs argue that Emgesa has not invested in the
recovery and conservation of water resources and to date has not
carried out any kind of work to clear the non-native vegetation.
The matter is still pending compliance by the plaintiffs with
the notification of the individuals who should be notified of
the content of the demand.
The amount involved is approximately US$0.9 million.
Empresa Nacional de Electricidad SA (Endesa Chile) --
http://www.endesa.cl/-- is an electric generation company with
operations in Chile, Argentina, Colombia and Peru, and an equity
interest in Brazil. Endesa Chile's core business is electricity
generation. The company also participates in the engineering
services industry and has a tunnel concession.
ENDESA CHILE: Emgesa Still Faces Lawsuit Over Contaminated Water
----------------------------------------------------------------
Emgesa S.A. E.S.P., a Colombian generation company controlled by
Empresa Nacional de Electricidad SA (Endesa Chile), is facing a
class action lawsuit, Case No. 2001-016, in the Administrative
Tribunal of Cundinamarca, First Section.
The plaintiffs are Orlando Enrique Guaqueta and the Sibate
residents (class action Miguel angel Chavez - Nancy Stella
Martinez Pulido and others).
The named defendants are Emgesa, Empresa de Energia de Bogota
S.A. ESP ("EEB") and Corporacion Autonoma Regional "CAR").
The plaintiffs seek the joint liability of the defendants
related to the damages produced in the Muña reservoir due to
contaminated water from the Bogota river pumped in by Emgesa.
The case was sent to the State Council to resolve the motions
presented by the companies (among others, Encomables, Hospital
Juan N Corpas, Agrinal S.A., Liquido Carbonico Colombiana S.A.,
Tinzuque, Refisal, Peldar, Incollantas), that do not believe
they can be considered direct defendants in the case.
According to the company's June 8, 2009 Form 20-F Filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Dec. 31, 2008, once these motions are ruled on, the first
instance evidence stage should begin.
The amount involved is US$1.32 million.
Empresa Nacional de Electricidad SA (Endesa Chile) --
http://www.endesa.cl/-- is an electric generation company with
operations in Chile, Argentina, Colombia and Peru, and an equity
interest in Brazil. Endesa Chile's core business is electricity
generation. The company also participates in the engineering
services industry and has a tunnel concession.
ENDESA CHILE: Suit v. Emgesa Over Bogota River Pollution Pending
----------------------------------------------------------------
Emgesa S.A. E.S.P., a Colombian generation company controlled by
Empresa Nacional de Electricidad SA (Endesa Chile), remains
involved in a class action for alleged contribution to the
pollution of the Bogota River by action or omission.
Gustavo Moya filed suit against Emgesa, Empresa de Energia de
Bogota S.A. ESP ("EEB"), the Capital District of Bogota, Empresa
de Acueducto y Alcantarillado de Bogota, the Municipality of
Sibate and other industries and government entities, Case No.
2001-479, in the Administrative Tribunal of Cundinamarca, Fourth
Section.
Class action seeking to declare the defendants responsible for
damages caused to the environment produced by storing
contaminated water in the Muña reservoir, and thus compensate
for the collective damage caused.
Appeal proceedings pending against the first instance sentence
before the State Council, which exonerated Emgesa from
responsibility and a compliance agreement was approved.
For its part, the Administrative Tribunal of Cundinamarca has
held various audiences for checking compliance with the Bogota
river decontamination works. The audience of Dec. 16, 2008
Emgesa reaffirmed that the company has complied with all its
commitments under the agreement signed.
The amount involved remains undetermined, according to the
company's June 8, 2009 Form 20-F Filing with the U.S. Securities
and Exchange Commission for the fiscal year ended Dec. 31, 2008.
Empresa Nacional de Electricidad SA (Endesa Chile) --
http://www.endesa.cl/-- is an electric generation company with
operations in Chile, Argentina, Colombia and Peru, and an equity
interest in Brazil. Endesa Chile's core business is electricity
generation. The company also participates in the engineering
services industry and has a tunnel concession.
NEUBERGER BERMAN: Reaches Settlement in Hartford Life ERISA Suit
----------------------------------------------------------------
Neuberger Berman Management LLC settled a proposed class-action
lawsuit that a pension fund administrator launched against it
and Hartford Life Insurance Co. over an alleged kickback scheme
involving employee retirement plans, Law360 reports.
On June 23, 2009, Phones Plus, Inc., a telephone systems
distributor filed a motion in the U.S. District Court for the
District of Connecticut, seeking court approval for a settlement
that would allocate $225,000 to a settlement fund, according to
Law360.
The suit, captioned, "Phones Plus, Inc. v. The Hartford
Financial Services Group, Inc., Hartford Life Insurance Company
and Neuberger Berman Management, Inc., Civil Action No. 3:06-CV-
01835 (AVC)," accuses Neuberger Berman and Hartford Life of
violating the Employee Retirement Income Security Act (ERISA) of
1974.
Shepherd, Finkelman, Miller & Shah announced that, on Oct. 23,
2007, the defendants' Motions to Dismiss the litigation was
denied in an opinion authored by the Honorable Alfred V. Covello
of the U.S. District Court for the District of Connecticut
(Class Action Reporter, Jan. 28, 2008).
The case was brought by plaintiff, Phones Plus, Inc.,
individually, and on behalf of all similarly situated persons
and entities, under the Employee Retirement Income Security Act,
29 U.S.C. SS1001 et seq., for defendants' alleged breaches of
fiduciary duties, prohibited transaction rules and other
provisions of ERISA, including dealing with the assets of
plaintiff's 401K retirement plan in The Hartford's own interest
and contrary to the interests of the Plan.
Both defendants The Hartford and Neuberger moved to dismiss
Plaintiff's Amended Complaint for a purported failure to state a
claim upon which relief could be granted. In opposition, Phones
Plus argued that it sufficiently alleged violations of ERISA by
The Hartford and Neuberger and that The Hartford Financial
Services Group, Inc. (HFSG) had direct liability as a fiduciary
of the Plan, or, in the alternative, was jointly and severally
liable to the Plan as a co-fiduciary for Hartford Life Insurance
Company's breaches of fiduciary duty; and that, to the extent
that any of the Defendants were not deemed fiduciaries or co-
fiduciaries under ERISA, each of the Defendants were liable to
the Class as non-fiduciaries that knowingly participated in a
breach of trust.
The Court rejected The Hartford's argument that it was not a
fiduciary of the Plan under ERISA. Instead, the Court upheld
Counts I and II of plaintiff's Amended Complaint and found that
Phones Plus had specifically alleged that each of the defendants
is a fiduciary of the Plan and had alleged sufficient facts to
support claims under ERISA.
The Court also upheld Count III of plaintiff's Amended Complaint
and found that plaintiff's allegations were sufficient to
support a claim for relief for a non-fiduciary's knowing
participation in a breach of trust by an ERISA fiduciary.
Further, the Court found that Phones Plus sufficiently alleged a
breach of fiduciary duty by Neuberger and that The Hartford
knowingly participated in Neuberger's breach, and that damages
resulted from this conduct. The Court also found that the
allegations in plaintiff's Amended Complaint were sufficient to
raise claims for relief against HFSG, which The Hartford
Defendants had argued was a holding company that was not a party
to any contract with Plaintiff.
Finally, the Court denied Neuberger's Motion to Dismiss, thereby
rejecting Neuberger's argument that it was not a proper party to
the action. The Court concluded that Phones Plus sufficiently
alleged that Neuberger is an ERISA fiduciary with respect to the
conduct alleged in Phones Plus' Amended Complaint.
The suit is "Phones Plus, Inc. v. Hartford Fin Svc Inc., et al.,
Case No. 3:06-cv-01835-AVC," filed in the U.S. District Court
for the District Court of Connecticut under Judge Alfred V.
Covello.
Representing the plaintiffs are:
James E. Miller, Esq. (jmiller@sfmslaw.com)
Sheperd Finkelman Miller & Shah-Chester
65 Main St., Chester, CT 06412
Phone: 860-526-1100
Fax: 860-526-1120
Web site: http://www.sfmslaw.com/
- and -
Matthew Borden, Esq. (mborden@linerlaw.com)
Liner Yankelevitz Sunshine & Regenstraif LLP - CA
199 Fremont St., 20th Fl.
San Francisco, CA 94105
Phone: 415-489-7700
Fax: 415-489-7701
Representing the defendants are:
Joseph T. Baio, Esq. (jbaio@willkie.com)
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
Phone: 212-728-8203
Fax: 212-728-8111
- and -
Christopher G. Barnes, Esq. (cgb@jordenusa.com)
Jorden Burt
175 Powder Forest Drive,Ste 201
Simsbury, CT 06089
Phone: 860-392-5018
Fax: 860-392-5058
LEE COUNTY: Property Appraiser Fla. Faces Suit Over High Values
---------------------------------------------------------------
A purported class-action suit filed against Lee County Property
Appraiser Kenneth M. Wilkinson charging that his office is
setting values of property unfairly high by refusing to consider
the most recent nearby sales, Dick Hogan of The News-Press
reports.
Someone who thinks his property has been unfairly valued too
high for the purpose of assessing property taxes can appeal to a
special magistrate through the Value Adjustment Board, but few
prevail. Of roughly 5,000 people who objected to the board for
2007's taxes, only about 400 won their cases, Jason King, firm
administrator for The Thompson Law Firm, tells The News-Press.
Mr. King is also the representative of the class in the suit.
Attorney Eddie Mekias of The Thompson Law Firm, who filed the
suit, tells The News-Press that he hopes Circuit Judge Sherra
Winesett will certify a class including the people who, like Mr.
King, lost their adjustment board cases.
Then, Mr. Mekias tells The News-Press, he'd like to see the
judge reduce the assessments to a fair level or at least bounce
their cases back to the board.
LUFKIN INDUSTRIES: Federal Court Orders $5M Payment in "McClain"
----------------------------------------------------------------
A federal district court judge ordered Lufkin Industries Monday
to pay what the plaintiff's attorney estimates to be $3.1
million plus 5-percent interest as a result of a class-action
discrimination lawsuit, Jeff Awtrey of KTRE reports.
The order was a result of an appeal to a decision in "McClain v.
Lufkin Indus, Inc." in 2005 which found Lufkin Industries had
discriminated unlawfully, according to KTRE.
Attorney Tim Garrigan, Esq. estimates Lufkin Industries will pay
about $5 million after interest, pending any further appeals.
Mr. Garrigan told KTRE that the initial plaintiffs in the case
are Buford Thomas and Sylvester McClain, plus 13 class-action
plaintiffs and about 900 class-action members. He said it has
not yet been determined how the award money will be shared.
It was previously reported that a ruling in the matter styled,
"McClain, et al., v. Lufkin Industries, Case No. 9:97-cv-00063-
HC," a race discrimination lawsuit filed by present and former
employees of the company, is expected by the end of the second
quarter of 2009 (Class Action Reporter, March 31, 2009).
An employee and a former employee of the company filed the class
action suit in the U.S. District Court for the Eastern District
of Texas on March 7, 1997, alleging race discrimination.
Certification hearings were conducted in Beaumont, Texas, in
February 1998 and in Lufkin, Texas, in August 1998. In April
1999, the District Court issued a decision that certified a
class for this case, which included all black employees employed
by the company from March 6, 1994, to the present.
The case was closed from 2001 to 2003 while the parties
unsuccessfully attempted mediation. Trial for this case began
in December 2003, but was postponed by the District Court and
was completed in October 2004. The only claims made at trial
were those of discrimination in initial assignments and
promotions.
On Jan. 13, 2005, the District Court entered its decision
finding that the company discriminated against African-American
employees in initial assignments and promotions. The District
Court also concluded that the discrimination resulted in a
shortfall in income for those employees and ordered that the
company pay those employees back pay to remedy such shortfall,
together with pre-judgment interest in the amount of 5%.
On Aug. 29, 2005, the District Court determined that the back-
pay award for the class of affected employees would be $3.4
million -- including interest to Jan. 1, 2005 -- and provided a
formula for attorney fees that the company estimates will result
in a total not to exceed $2.5 million.
In addition to backpay with interest, the District Court
enjoined and ordered the company to cease and desist all
racially biased assignment and promotion practices and ordered
the company to pay court costs and expenses.
The company reviewed this decision with its outside counsel and
on Sept. 19, 2005, appealed the decision to the U.S. Court of
Appeals for the 5th Circuit.
On April 3, 2007, the company appeared before the appellate
court in New Orleans for oral argument in this case. The
appellate court subsequently issued a decision on Feb. 29, 2008,
that reversed and vacated the plaintiff's claim regarding the
initial assignment of black employees into the Foundry Division.
The appellate court also denied the plaintiff's appeal for class
certification in order to claim disparate treatment. The
plaintiff's claim on the issue of the company's promotional
practices was affirmed but the backpay award was vacated and
remanded for recomputation in accordance with the opinion.
The District Court's injunction was vacated and remanded with
instructions to enter appropriate injunctive relief. Finally,
the issue of the plaintiff's attorney's fees was remanded to the
district court for further consideration in accordance with
prevailing authority.
The plaintiff and the company subsequently filed requests for
rehearing with the court on March 20, 2008, in order to address
significant issues.
On April 10, 2008, the company was informed that the Fifth
Circuit had denied both requests for a rehearing.
At present, however, the district court will conduct further
proceedings on the injunctive relief to be entered, back pay and
plaintiffs' request for attorneys' fees.
The Fifth Circuit's opinion to reverse and affirm portions of
the District Court's decision, together with the assignment of a
different judge for this case in the District Court (the trial
judge who wrote the trial court decision is deceased) prevents
the company from estimating the back pay or attorneys' fees
award at this time.
The District Court will interpret the Fifth Circuit's
instructions and take additional evidence to determine these
issues.
On July 2, 2008, the company filed a Petition for Writ of
Certiorari in the U.S. Supreme Court, requesting that the court
review the decision of the U.S. Court of Appeals for the Fifth
Circuit. The U.S. Supreme Court denied the company's petition
on Oct. 6, 2008.
The company, with the assistance of outside counsel, is
reviewing its appellate options at this time as well as its
position in future proceedings in the District Court. At
present, however, pursuant to the court of appeal's mandate, the
District Court will conduct further proceedings on the
injunctive relief to be entered, back pay and plaintiffs'
request for attorneys' fees. The Fifth Circuit's opinion to
reverse and affirm portions of the District Court's decision,
together with the assignment of a different judge for this case
in the District Court (the trial judge who decided the case is
deceased) prevented the company from estimating the back pay or
attorneys' fees before the commencement of proceedings in the
District Court. The District Court will interpret the Fifth
Circuit's instructions and take additional evidence to determine
these issues.
On Dec. 5, 2008, the U.S. District Court Judge Clark held a
hearing in Beaumont, Texas during which he reviewed the 5th U.S.
Circuit Court of Appeals class action decision and informed the
parties that he intended to implement the decision in order to
conclude this litigation. At the conclusion of the hearing
Judge Clark ordered the parties to submit positions regarding
the issues of attorney fees, a damage award and injunctive
relief. Subsequently, the company has reviewed the plaintiff's
submissions which describe the formula and underlying
assumptions that support their positions on attorney fees and
damages. After review of the plaintiff's submission to the
court the company continues to have significant differences
regarding legal issues that materially impact the plaintiff's
requests.
Additional court proceedings are scheduled and the company
expects the District Court to reach a decision by the end of the
second quarter of 2009, according to the company's Feb. 27, 2009
Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2008.
The suit is "McClain, et al., v. Lufkin Industries, Case No.
9:97-cv-00063-HC," filed in U.S. District Court for the Eastern
District of Texas, Judge Judge Howell Cobb, presiding.
Representing the plaintiffs are:
Morris J. Baller, Esq. (mjb@gdblegal.com)
Goldstein Demchak Baller Borgen
300 Lakeside Dr., Suite 1000
Oakland, CA 94612
Phone: 510-763-9800
Fax: 1-510-835-1417
Timothy Borne Garrigan, Esq.
(tbgstugar@cox-internet.com)
Stuckey Garrigan & Castetter
2803 North Street, P.O. Box 631902
Nacogdoches, TX 75963-1902
Phone: 936-560-6020
Fax: 1-936-560-9578
Representing the company is:
Christopher V. Bacon, Esq. (cbacon@velaw.com)
Vinson & Elkins
1001 Fannin St., Suite 2300
Houston, TX 77002-6760
Phone: 713-758-2222
Fax: 1-713-615-5014
MATRIXX INITIATIVES: June Hearing Set for Appeal of "Siracusano"
----------------------------------------------------------------
Oral arguments on the appeal from the dismissal of a
consolidated securities fraud class-action lawsuit, captioned,
"Siracusano, et al. v. Matrixx Initiatives, Inc. et al.," was
set for June 2009.
In April and May 2004, two class-action complaints were filed
against the company; its president and chief executive officer,
Carl J. Johnson; and its executive vice president and chief
financial officer, William J. Hemelt, alleging violations of
federal securities laws (Class Action Reporter, Feb. 12, 2008).
On Jan. 18, 2005, the cases were consolidated and the court
appointed James V. Sircusano as lead plaintiff. The
consolidated case is "Sircusano, et al. vs. Matrixx Initiatives,
Inc., et al., Case No. CV04-0886 PHX DKD," and was filed in the
U.S. District Court for District of Arizona.
An amended complaint, filed March 4, 2005, added as defendant
the company's vice president for research and development,
Timothy L. Clarot.
The lawsuit alleges that between October 2003 and February 2004,
the company made materially false and misleading statements
regarding its Zicam Cold Remedy product, including failing to
adequately disclose to the public the details of allegations
that the company's products caused damage to the sense of smell
and of certain of the product liability lawsuits in faces.
The company filed a motion to dismiss the lawsuit and on Dec.
15, 2005, the Court granted the request and dismissed the case
without prejudice.
On April 3, 2006, the plaintiffs appealed the dismissal order to
the U.S. District Court of Appeals for the Ninth Circuit.
An oral argument is scheduled for June 9, 2009, by the Ninth
Circuit Court.
In accordance with and subject to the provisions of the
company's Certificate of Incorporation, Messrs. Johnson, Hemelt,
and Clarot will be indemnified by the company for their expenses
incurred in defending these lawsuits and for any other losses
which they may suffer as a result of these lawsuits.
The company has submitted this matter to its insurance carriers
and may incur charges up to the deductible amount of $1 million,
according to the company's June 5, 2009 Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended March 31, 2009.
The suit is "Sircusano, et al. vs. Matrixx Initiatives, Inc., et
al., Case No. CV04-0886 PHX DKD," filed in the U.S. District
Court for District of Arizona, Judge Mary H. Murguia, presiding.
Representing the plaintiffs are:
Ramzi Abadou, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
401 B St., Ste 1600
San Diego, CA 92101
Phone: 619-231-1058
e-mail: LukeO@Lerachlaw.com
- and -
Francis Joseph Balint, Jr., Esq. (fbalint@bffb.com)
Bonnett Fairbourn Friedman & Balint PC
2901 N Central Ave, Ste. 1000
Phoenix, AZ 85012-3311
Phone: 602-274-1100
Fax: 602-274-1199
Representing the company are:
Maureen Beyers, Esq. (mbeyers@omlaw.com)
Osborn Maledon, P.A.
2929 North Central Avenue
Phoenix, AZ 85012-2794
Phone: 602-640-9305
Fax: 602-664-2053
- and -
Amy J. Longo, Esq. (alongo@omm.com)
O'Melveny & Myers
610 Newport Center Dr., 17th Floor
Newport Beach, CA 92660
Phone: 949-823-7175
Fax: 949-823-6994
ORION ENERGY: Ruling on Bid to Junk Consolidated Lawsuit Pending
----------------------------------------------------------------
The U.S. District Court for the Southern District of New York's
review and decision on Orion Energy Systems, Inc.'s motion to
dismiss the consolidated amended complaint remain pending.
In February and March 2008, three class-action suits were filed
in the U.S. District Court for the Southern District of New York
against the Company, several of its officers, all members of the
board of directors, and certain underwriters relating to its
December 2007 Initial Public Offering.
The plaintiffs claim to represent those persons who purchased
shares of the Company's common stock from Dec. 18, 2007 through
Feb. 6, 2008.
The plaintiffs allege, among other things, that the defendants
made misstatements and failed to disclose material information
in the Company's registration statement and prospectus.
The claims allege various claims under the U.S. Securities Act
of 1933, as amended.
The complaints seek, among other relief, class certification,
unspecified damages, fees, and such other relief as the court
may deem just and proper.
On Aug. 1, 2008, the court-appointed lead plaintiff filed a
consolidated amended complaint in the U.S. District Court for
the Southern District of New York.
On Sept. 15, 2008, the Company and the other defendants filed a
brief in support of the Company's motion to dismiss the
consolidated complaint (Class Action Reporter, Dec. 5, 2008).
On Nov. 13, 2008, the lead plaintiff filed a brief in opposition
to the motion to dismiss. On Dec. 15, 2008, the company and the
other director and officer defendants, filed a reply brief in
support of their motion to dismiss.
The underwriter defendants and the lead plaintiff filed a set of
briefs in January and March 2009, in connection with the
underwriter defendants' motion to dismiss. Having been fully
briefed, the respective motions to dismiss are awaiting the
court's review and decision, according to the company's June 15,
2009 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the fiscal year ended March 31, 2009.
Orion Energy Systems, Inc. -- http://www.oriones.com– designs,
manufactures, markets and implements energy management systems
consisting primarily of energy efficient lighting systems,
controls and related services. The Company's energy management
systems deliver energy savings and efficiency gains to its
commercial and industrial customers without compromising their
quantity or quality of light. Orion has sold and installed its
HIF fixtures in over 3,655 facilities across North America,
representing over 587 million square feet of commercial and
industrial building space, including for 91 Fortune 500
companies, such as Coca-Cola Enterprises Inc., General Electric
Co., Kraft Foods Inc., Newell Rubbermaid Inc., OfficeMax, Inc.,
and SYSCO Corp.
PFIZER INC: N.J. Judge Stays Celebrex-Related Securities Lawsuit
----------------------------------------------------------------
A federal judge stayed a securities fraud class-action lawsuit
accusing Pfizer, Inc. of misrepresenting clinical studies of
arthritis painkiller Celebrex, because the U.S. Supreme Court
has decided to take on a similar case, Law360 reports.
In an order filed on June 24, 2009, Judge Anne E. Thompson of
the U.S. District Court for the District of New Jersey stayed
the case, according to Law360.
PRESTIGE BRANDS: Consolidated Suit Settlement Pending Approval
--------------------------------------------------------------
The settlement of a consolidated shareholder lawsuit filed
against Prestige Brands Holdings, Inc., is pending court
approval.
The first of the six cases that were later consolidated was
filed against the company and certain of its officers and
directors on Aug. 3, 2005. The cases were filed in the U.S.
District Court for the Southern District of New York.
The plaintiffs purport to represent a class of stockholders of
the company that purchased shares between Feb. 9, 2005, and Nov.
15, 2005.
The plaintiffs also named as defendants the underwriters in the
company's initial public offering and a private equity fund that
was a selling stockholder in the offering.
The district court has appointed a lead plaintiff, who, on Dec.
23, 2005, filed a consolidated class action complaint asserting
claims under Sections 11, 12(a)(2) and 15 of the U.S. Securities
Act of 1933 and Sections 10(b), 20(a), and 20A of the U.S.
Securities Exchange Act of 1934.
The lead plaintiff generally alleged that the company issued a
series of materially false and misleading statements in
connection with its initial public offering and thereafter with
regard to:
-- the accounting issues described in the company's press
release issued on or about Nov. 15, 2005; and
-- the alleged failure to disclose that demand for certain
of the company's products was declining and that the
company was planning to withdraw several products from
the market.
The plaintiffs seek an unspecified amount of damages.
Pursuant to the company's request, the court, in a pretrial
ruling on July 10, 2006, dismissed claims that the management
acted fraudulently. The court also dismissed all claims against
the company and the individual defendants arising under the U.S.
Securities Exchange Act of 1934.
On Sept. 4, 2007, the U.S. District Court for the Southern
District of New York certified a class consisting of all persons
who purchased the common stock of the company pursuant to, or
traceable to, the company's initial public offering on or about
Feb. 9, 2005, through Nov. 15, 2005.
On Jan. 8, 2008, the parties to the action engaged in mediation
to explore the terms of a potential settlement of the pending
litigation. However, no settlement agreement was reached during
mediation (Class Action Reporter, Sept. 25, 2008).
On Jan. 16, 2009, after unsuccessful mediation, the Court
ordered that notice of the pending class action lawsuit be sent
to all persons who purchased the company's common stock between
Feb. 9, 2005 and Nov. 15, 2005 pursuant or traceable to the
company's initial public offering (Class Action Reporter, Feb.
20, 2009).
In March 2009, the notice of class action law suit was mailed.
The defendants and the lead plaintiffs have reached an agreement
in principle to settle the class action lawsuit without any
admission of liability by the defendants, subject to the
execution of appropriate settlement documents and court
approval. It is expected that the settlement funds will come
entirely out of insurance proceeds. If approved, the settlement
would result in dismissal of all claims against the company, its
officers and directors and the other defendants in the action
with prejudice. If the settlement is not completed, then the
parties may attempt to reach agreement on another settlement or
resume the litigation, according to the company's June 15, 2009
Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended March 31, 2009.
The suit is "In re Prestige Brands Holdings, Inc. Securities
Litigation, Case No. 7:05-cv-06924-CLB," filed in the U.S.
District Court for the Southern District of New York, Judge
Charles L. Brieant presiding.
Representing the plaintiffs are:
William J. Ban, Esq. (wban@barrack.com)
Barrack, Rodos & Bacine
Two Commerce Square
2001 Market Street, Suite 3300
Philadelphia, PA 19103
Phone: 215-963-0600
Fax: 215-963-0838
- and -
Russell James Gunyan, Esq. (rgunyan@csgrr.com)
Coughlin, Stoia, Geller, Rudman & Robbins, LLP
58 South Service Road, Suite 200
Melville, NY 11747
Phone: 631-367-7267
Fax: 631-367-1173
Representing the defendants are:
Todd R. David, Esq. (todd.david@alston.com)
Alston & Bird, L.L.P.
One Atlantic Center, 1201 West Peachtree Street
Atlanta, GA 30309-3424
Phone: 404-881-7357
Fax: 404-527-8717
- and -
John Gueli, Esq. (jgueli@shearman.com)
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Phone: 212-848-4744
Fax: 212-848-7179
QUEST ENERGY: Royalty Owners' Lawsuit v. Quest Cherokee Pending
---------------------------------------------------------------
The class action suit styled "Hugo Spieker, et al. v. Quest
Cherokee, LLC Case No. 07-1225-MLB," remains pending, according
to Quest Energy Partners, L.P.'s June 16, 2009 Form 10-K Filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended Dec. 31, 2008.
Quest Cherokee, LLC is a wholly-owned subsidiary of the owner of
the company's general partner, Quest Resource Corporation.
Quest Cherokee was named as a defendant in a class action
lawsuit filed on Aug. 6, 2007, by several royalty owners in the
U.S. District Court for the District of Kansas.
The case was filed by the named plaintiffs on behalf of a
putative class consisting of all Quest Cherokee's royalty and
overriding royalty owners in the Kansas portion of the Cherokee
Basin.
Plaintiffs contend that Quest Cherokee failed to properly make
royalty payments to them and the putative class by, among other
things, paying royalties based on reduced volumes instead of
volumes measured at the wellheads, by allocating expenses in
excess of the actual costs of the services represented, by
allocating production costs to the royalty owners, by improperly
allocating marketing costs to the royalty owners, and by making
the royalty payments after the statutorily proscribed time for
doing so without providing the required interest.
Quest Cherokee has answered the complaint and denied plaintiffs'
claims. Discovery in that case is ongoing.
Quest Energy Partners, L.P. -- http://www.qelp.net/-- was
established to acquire, exploit and develop oil and natural gas
properties. Its operations are focused on the development of
coal bed methane (CBM), in a 15-county region in southeastern
Kansas and northeastern Oklahoma, (referred to as the Cherokee
Basin). In addition to its producing properties, the company
has an inventory of potential drilling locations and acreage in
the Cherokee Basin.
QUEST ENERGY: To Defend Consolidated Securities Suit in Okla.
-------------------------------------------------------------
Quest Energy Partners, L.P. intends to defend a consolidated
securities class action complaint pending in the U.S. District
Court for the Western District of Oklahoma.
Four putative class-action complaints were filed in the U.S.
District Court for the Western District of Oklahoma against
Quest Energy GP et al. The complaints were filed by certain
unitholders on behalf of themselves and other unitholders who
purchased the company's common units between Nov. 7, 2007 and
Aug. 25, 2008 and by certain stockholders on behalf of
themselves and other stockholders who purchased QRCP's common
stock between May 2, 2005 and Aug. 25, 2008.
The complaints assert claims under Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, and Sections 11 and 15 of the Securities Act of
1933.
The complaints allege that the defendants violated the federal
securities laws by issuing false and misleading statements
and/or concealing material facts concerning certain unauthorized
transfers of funds from subsidiaries of QRCP to entities
controlled by the company's former chief executive officer,
Jerry D. Cash.
The complaints also allege that, as a result of these actions,
the company's unit price and the stock price of QRCP was
artificially inflated during the class period.
On Dec. 29, 2008, the court consolidated these complaints as
Michael Friedman, individually and on behalf of all others
similarly situated v. Quest Energy Partners LP, Quest Energy GP
LLC, Quest Resource Corporation, Jerry Cash, and David E. Grose,
Case No. 08-cv-936-M, in the Western District of Oklahoma.
Various individual plaintiffs have filed multiple rounds of
motions seeking appointment as lead plaintiff, however the court
has not yet ruled on these motions and appointed a lead
plaintiff. Once a lead plaintiff is appointed, the lead
plaintiff must file a consolidated amended complaint within 60
days after being appointed. No further activity is expected in
the purported class action until a lead plaintiff is appointed
and an amended consolidated complaint is filed, according to the
company's June 16, 2009 Form 10-K Filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
Dec. 31, 2008.
Quest Energy Partners, L.P. -- http://www.qelp.net/-- was
established to acquire, exploit and develop oil and natural gas
properties. Its operations are focused on the development of
coal bed methane (CBM), in a 15-county region in southeastern
Kansas and northeastern Oklahoma, (referred to as the Cherokee
Basin). In addition to its producing properties, the company
has an inventory of potential drilling locations and acreage in
the Cherokee Basin.
REMEC INC: Pretrial Conference for Securities Suit on June 26
-------------------------------------------------------------
Pretrial conference for the consolidated securities fraud
lawsuit filed against REMEC, Inc. in the U.S. District Court for
the Southern District of California has been set for June 26,
2009.
On Sept. 29, 2004, three class actions were filed against the
company and certain former officers in the U.S. District Court
for the Southern District of California, alleging violations of
federal securities laws between Sept. 8, 2003 and Sept. 8, 2004.
On Jan. 18, 2005, the law firm of Milberg Weiss Bershad &
Schulman, LLP, was appointed lead counsel and its client was
appointed lead plaintiff.
After several consolidated and amended complaints were filed,
challenged by the company and dismissed by the court with leave
to amend, the court denied REMEC's motion to dismiss the fourth
amended complaint on Sept. 25, 2006.
REMEC filed its answer to the fourth amended complaint on Nov.
6, 2006, denying all liability and asserting certain affirmative
defenses. The court granted plaintiff's motion for class-
certification on Nov. 21, 2007.
The parties engaged in discovery, including production of
documents, between May 2007 and March 2009. All discovery,
including expert discovery, is now closed.
There are four motions seeking summary judgment or partial
summary judgment pending before the Court, three made by the
Defendants and one made by the Plaintiffs. The time period for
filing dispositive motions has closed. A Pretrial Conference
has been scheduled by the Court for June 26, 2009.
REMEC maintains directors' and officers' liability insurance,
and has tendered the defense of this lawsuit to its insurance
carriers. The primary insurance carrier has agreed to pay
defense costs and provide coverage of this action, subject to a
reservation of rights, according to the company's June 15, 2009
Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarter ended May 1, 2009.
The suit is "In re: REMEC Inc. Securities Litigation, Case No.
04-CV-1948," filed in the U.S. District Court for the Southern
District of California, Judge Jeffrey T. Miller, presiding.
Representing the plaintiffs are:
Jeff S. Westerman, Esq.
Milberg Weiss Bershad & Schulman, LLP
355 South Grand Avenue, Suite 4170
Los Angeles, CA 90071
Phone: (213) 617-1200
Fax: (213) 617-1975
David W. Mitchell, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP,
655 West Broadway, Suite 1900
San Diego, California 92101-4297
Phone: 619-231-1058 and 800-449-4900
Fax: 619-231-7423
Web site: http://www.lerachlaw.com
- and -
Blake Muir Harper, Esq.
Hulett Harper Stewart, LLP
550 West C. Street, Suite 1600
San Diego, CA 92101
Phone: (619) 338-1133
Fax: (619) 338-1139
Representing the defendants is:
Robert W. Brownlie
DLA Piper Rudnick Gray Cary, US, LLP,
401 "B" Street, Suite 1700
San Diego, California 92101
Phone: (619) 699-2700 and 858-638-6886
Fax: 858-677-1401
Web site: http://www.dlapiper.com
SAN DIEGO: Judge considers Class Certification for Fire Victims
---------------------------------------------------------------
Judge Richard Strauss of the Superior Court of San Diego County
has indicated that he is not inclined to allow class-action
status for victims of the 2007 wildfires that were blamed on San
Diego Gas & Electric's downed power lines, Teri Figueroa of
North County Times reports.
In a tentative ruling, Judge Strauss said it appears that the
class of victims -- who suffered damages or were ordered to
evacuate -- as proposed to him are not well-enough legally
defined by common claims for damages, according to North County
Times.
It was revealed though that Judge Strauss will address the
matter this week after attorneys on both sides lobby their case
in oral arguments, North County Times reports.
Bonnie Kane, Esq., one of the attorneys for the fire victims,
tells North County Times that the potential decision to reject
the class-action suits could mean the lawsuits would drag on for
years as each individual claim gets a separate trial.
Victims of the massive Witch Creek/Guejito and Rice fires are
suing SDG&E and Cox Communications for damages.
State fire officials have concluded that SDG&E's power lines
sparked the fires in late October 2007. SDG&E has said fierce
Santa Ana winds were to blame, reports the North County Times.
The blazes wiped out nearly 1,400 homes and forced thousands of
people to evacuate.
Attorneys wanted two class-action suits: one for people who
suffered actual property damages and one to help evacuees recoup
costs for fleeing the fire. The proposed class-action status
would have included anyone in those two camps, unless they
specifically asked to opt out, North County Times reported.
SCOTT COUNTY: Plaintiff's Bankruptcy Stays Ark. Suit v. Assessor
----------------------------------------------------------------
A purported class-action lawsuit charging Scott County Assessor
Sherri Thompson with unequal property tax assessments has been
stayed due to the bankruptcy of its plaintiff, Rusty Garrett of
Fort Smith Times Record reports.
Terry Sullivan, District Judge for the Fifteenth Judicial
District, notified Scott County Circuit Clerk Sandy Staggs and
attorneys in the suit of his decision to stay action in the case
in a June 4, 2009 letter, according to the Fort Smith Times
Record.
According to Judge Sullivan, Arthur Oldner, a Waldron insurance
agent who had filed the lawsuit on March 30, 2009 "is in
bankruptcy." Mr. Sullivan said he was told of the situation by
Brian P. Simpson, Esq., a Fort Smith attorney representing Mr.
Oldner, the Fort Smith Times Record reports.
Given the circumstances, Judge Sullivan wrote the case would not
be placed on the court's active docket "until I'm advised by the
parties as to the status of the bankruptcy action." The judge
also canceled a hearing set for July 14, 2009 in the case, Fort
Smith Times Record reported.
The lawsuit, which sought certification as a class action, asks
the property owners in Scott County who are subject to property
tax assessments be identified as the class, Fort Smith Times
Record reports.
It claims that there is a "regular, systematic and widespread
practice of unequal property tax assessments" in the county. It
also claims "certain 'favorites' and 'friends' enjoy
substantially lower tax rates than other taxpayers," reports
the Fort Smith Times Record.
SPRINT SOLUTIONS: Judge Reject Group Suit Over Taxes, Refunds
-------------------------------------------------------------
Judge Robert J. Bryan of the U.S. District Court for the Western
District of Washington refuses to certify a national class in
the purported class-action lawsuit, "Utility Consumers' Action
Network v. Sprint Solutions Inc., 07-cv-2231," Jef Feeley and
Bill Callahan of Bloomberg reports.
The Utility Consumers' Action Network, a California nonprofit
group filed the suit in 2007 at the U.S. District Court for the
Southern District of California. The suit generally claims that
the company overcharged data-card customers for taxes and
refused to issue refunds, according to Bloomberg.
Judge Bryan took over the case after his counterparts in San
Diego recused themselves in April 2008, according to court
filings obtained by Bloomberg.
In essence, the consumer-advocacy group, which has more than
30,000 members, accused Sprint of charging additional fees for
text messages sent to customers who bought network cards to
access the Internet.
Although the company assigned card buyers a phone number, the
cards are intended to process data transmissions and have no
keypad, screen or other way to alert customers who receive calls
or messages, according to the group's lawsuit, reports
Bloomberg.
The consumer group said in its suit that beginning in September
2006, Sprint charged some customers taxes and surcharges that
should only be associated with cell phones. Sprint also left
accounts open to receive text messages and didn't automatically
block them.
Consumers sought to have the case designated as a national
class-action suit so the claims could be combined and reviewed
efficiently.
However, according to Bloomberg, Judge Bryan in Tacoma,
Washington, concluded Sprint customers couldn't show that being
allowed to press claims about wireless-network card charges as a
group would insure the case would be handled efficiently.
In a June 23, 2009 decision, the judge wrote, consumers "have
not proven that the benefits of adjudication of the plaintiffs'
claims at one trial would outweigh the complexity of such a
proceeding."
Judge Dryan further concluded, "Certifying a nationwide class in
this situation would not be a superior method of adjudicating"
customers' claims, Bloomberg reports.
The judge though pointed out that his ruling doesn't preclude
the consumer group from seeking to have a California-only class
created for tax claims, Bloomberg reported.
SQUARE ENIX: Faces Calif. Litigation Over Final Fantasy XI Fees
---------------------------------------------------------------
Square Enix of America Holdings, Inc., and Square Enix, Inc. are
facing a purported class-action lawsuit claiming that 100,000
customers have been deceived by the publisher over fees related
to subscription-based MMO Final Fantasy XI, Jim Sterling of
Destructoid reports.
The suit was filed on June 22, 2009 in the U.S. District Court
for the Central District of California by Esther Leong under the
caption, "Esther Leong v. Square Enix of America Holdings, Inc.
et al., Case No. 2:2009-cv-04484."
It alleges that Square Enix lied about or purposefully concealed
information on its monthly fees, penalties for late payments,
interest, restrictions and a number of other items that were not
disclosed in full to the consumers, according to Destructoid.
The plaintiff -- represented by attorneys Ronald Makarem, Esq.
and Michael Kim, Esq. -- seeks $5 million in damages for "unfair
business practices, false advertising and unjust enrichment,"
reports Destructoid.
For more details, contact:
Ronald W. Makarem, Esq. (makarem@law-rm.com)
Makarem and Associates APLC
11601 Wilshire Boulevard Suite 2440
Los Angeles, CA 90025-1740
Phone: 310-312-0299
Fax: 310-312-0296
- and -
Michael Hyungchoon Kim, Esq.
Michael H. Kim P.C.
3699 Wilshire Boulevard Suite 860
Los Angeles, CA 90010
Phone: 213-639-2900
Fax: 213-639-2909
TAYLORVILLE CHIROPRACTIC: Faces Ill. Lawsuit Over "Junk Faxes"
--------------------------------------------------------------
Taylorville Chiropractic Clinic, LLC is facing a purported
class-action lawsuit over "junk faxes" that violate federal
telephone and privacy laws, Amelia Flood of The St. Clair Record
reports.
The suit, captioned, "Locklear vs. Taylorville, Case No. 09-L-
606," was filed by Locklear Electric of Wood River on June
9,2009 in Madison County Circuit Court, claiming violations of
the Telephone Consumer Protection Act. It is seeking damages
for the loss of toner, ink, and privacy that the "junk faxes"
caused, The St. Clair Record reported.
The company specifically seeks $75,000 in damages. It is asking
for the class to be compensated $500 per violation of the
federal law.
Judge Dennis Ruth was assigned as the presiding judge over the
case, according to The St. Clair Record.
For more details, contact:
Robert Sprague, Esq.
Sprague & Urban
26 E Washington
Belleville, IL 62220
Phone: (618) 233-8383
- and -
Brian J. Wanca, Esq.
ANDERSON + WANCA
6 W. Hubbard, Suite 500
Chicago, Illinois 60610
Phone: (312) 494-9500
Fax: (312) 494-1209
TED LAY: Faces Illinois Litigation Alleging TCPA Violations
-----------------------------------------------------------
Theodore and Norma Lay of the Ted Lay Real Estate Agency are
facing a purported class-action lawsuit over "junk faxes" that
violate federal telephone and privacy laws, Amelia Flood of The
St. Clair Record reports.
The suit, captioned, "Locklear vs. Lay, Case No. 09-L-605," was
filed by Locklear Electric of Wood River on June 9,2009 in
Madison County Circuit Court, claiming violations of the
Telephone Consumer Protection Act. It is seeking damages for
the loss of toner, ink, and privacy that the "junk faxes"
caused, The St. Clair Record reported.
The company specifically seeks $75,000 in damages. It is asking
for the class to be compensated $500 per violation of the
federal law.
Judge Barbara Crowder was assigned as the presiding judge over
the case, according to The St. Clair Record.
For more details, contact:
Robert Sprague, Esq.
Sprague & Urban
26 E Washington
Belleville, IL 62220
Phone: (618) 233-8383
- and -
Brian J. Wanca, Esq.
ANDERSON + WANCA
6 W. Hubbard, Suite 500
Chicago, Illinois 60610
Phone: (312) 494-9500
Fax: (312) 494-1209
THOMSON CANADA: Ontario Court Provisionally Approves Settlement
---------------------------------------------------------------
Justice Maurice Cullity of the Ontario Superior Court of Justice
provisionally approved the settlement in the class-action suit,
"Robertson v. Thomson Canada Ltd.," Julius Melnitzer of The
National Post reports.
The provisional approval came about after Justice Cullity
expressed concerns over the efficiency of the proposed claims
distribution process and refused to give final approval to
either the settlement or the $4 million in counsel fees
requested, according to The National Post.
Previously, Julius Melnitzer of The National Post reported that
the Ontario Superior Court of Justice will be asked on June 16,
2009 to consider a proposed settlement in "Robertson v.
Thomson," (Class Action Reporter, May 7, 2009).
The class-action lawsuit involves breach of copyright claims by
freelance writers who objected to the defendants publishing
works written for print media in electronic databases without
paying the writers for the electronic rights, reports The
National Post.
Canada's Supreme Court ruled in favor of a freelance writer in a
class action she filed in 1996 against Globe and Mail and
Thomson Corp. over reproduction of articles in online databases
without additional compensation to the author, the Canadian
Press reports, The National Post reported.
The suit was filed in 1996 by freelance writer Heather Robertson
against against Globe and Mail and Thomson Corp. after Globe and
Mail reproduced two of her articles in an online database (Class
Action Reporter, Oct. 18, 2006). Kirk Baert of Koskie Minsky
represented the plaintiffs.
The settlement involves a payment of CDN$11 million to provide
benefits to class members including a claims-based compensation
plan and an alternative take-down benefit for certain freelance
work, as well as certain donations, according to The National
Post report.
UNITED STATES: Circuit Court Issues Ruling in Ala. Privacy Suit
---------------------------------------------------------------
The U.S. Court of Appeals for the Eleventh Circuit has ruled
that veterans suffering anxiety and paranoia following the theft
of a government hard drive containing the medical histories and
Social Security numbers of 198,000 of their brethren cannot
recover financial damages, David Kravets of Wired News reports.
In ruling that largely dismisses the class-action suit, "Fanin
v. U.S. Department of Veterans Affairs et al., Case No. 2:07-cv-
00310-IPJ," the Eleventh Circuit ruled that the veterans could
recoup at least $1,000 under the Privacy Act if they could show
financial damages, not mental anguish, according to Wired News.
Wired News reported that a three-judge panel of the Eleventh
Circuit wrote that it must stand by its 1982 precedent in which
it denied money damages surrounding an Internal Revenue Service
privacy breach that caused sleeplessness, anxiety, isolation and
anger.
Stephen Gidiere, Esq., the Alabama plaintiff's lawyer on the
case, told Wired News in a telephone interview that he would ask
the full circuit court to hear the case. Court rules, he noted,
allow a so-called en banc panel to change circuit precedent.
"The 11th Circuit decision is a relic and does not reflect the
realities of technology or the Privacy Act," according to him.
Previously, The Courthouse News Service reported that the U.S.
Department of Veterans Affairs faces a class action in the U.S.
District Court for the Northern District of Alabama after
admitting that it lost a computer hard drive containing
confidential medical information of about 535,000 patients.
The complaint, filed Feb. 15, 2007 alleges defendants have
committed and continue to commit multiple violations of the
Privacy Act, 5 U.S.C. Section 552a, with respect to the Personal
Information and the Medical Information.
Such violations include, but are not limited to:
(1) disclosing the personal information and the Medical
Information without the prior written consent of the
individuals to which the information pertains;
(2) failing to establish rules of conduct for persons
involved in the design, development, operation or
maintenance of any system of records, or in maintaining
any record, and instruct each such person with respect
to such rules and the requirements of the Privacy Act
and the penalties for non-compliance; and
(3) failing to establish appropriate administrative,
technical and physical safeguards to insure the
security and confidentiality of records and to protect
against any anticipated threats or hazards to their
security or integrity which could result in substantial
harm, embarrassment, inconvenience, or unfairness to
any individual on whom information is maintained.
Named plaintiff Greg Fanin, a member of the Alabama National
Guard who served in both Persian Gulf Wars, says an employee of
the Veterans Affairs' Medical Center in Birmingham reported the
hard drive missing on Jan. 22, 2007.
In addition to patient records, the hard drive contained billing
records for 1.3 million doctors, the complaint states, but the
defendant did not announce it until Feb. 2, 2007.
Mr. Fanin claims the Veterans Affairs informed him he is at risk
of identity theft, and he claims the Veterans Affairs violated
the Privacy Act and federal regulations by failing to protect
the information and failing to encrypt it.
Plaintiff, on behalf of himself and all others similarly
situated, pray that the court grant the following relief:
-- declare that defendants' acts and admissions constitute
a willful and intentional failure to establish
appropriate safeguards to ensure the security and
privacy of the Personal Information and the Medical
Information to protect against known and anticipated
threats or hazards to the security and integrity of
these records in violation of the Privacy Act and the
Administrative Procedure Act;
-- that the court order injunctive relief enjoining,
prohibiting, and preventing defendants from continuing
to operate without appropriate safeguards to ensure the
security and privacy of the Personal Information and the
Medical Information and similar information and to
protect anticipated threats or hazards to the security
and integrity of these records;
-- that the court permanently enjoin defendant VA, its
officers, agents, employees and those acting for and
with them, from accessing, viewing, handling,
disclosing, or in any way transferring any record or
system of records subject to Privacy Act requirements at
the Birmingham, Alabama VA Medical Center until an
independent panel of experts finds that adequate
information security has been established and
implemented by VA, unless such activity is explicitly
allowed by court order and under supervision of persons
independent of VA, such supervision to be at VA expense;
-- that the court enjoin defendant VA, its officers,
agents, employees and those acting for and with them
from removing any device capable of storing, containing
or transferring any record or system of records,
including, but not limited to, laptop computers,
portable hard drives, memory stick or similar devices
and "iPods" and similar devices, from property under
VA's supervision and control at the Birmingham, Alabama
VA Medical Center until unless VA demonstrates that
adequate information security has been established to
the court's satisfaction;
-- that the court grant to plaintiff and the class
judgment against defendant VA for damages in an amount
not less than $1,000 for each individual who was
adversely affected by defendant's Privacy Act
violations;
-- that the court grant to plaintiffs their costs and
reasonable attorneys' fees; and
-- that the court grant such additional relief as the court
deems proper and just.
A copy of the complaint and the recent decision is available at:
http://ResearchArchives.com/t/s?182a(Complaint)
http://ResearchArchives.com/t/s?3e22(Ruling)
The suit is "Fanin v. U.S. Department of Veterans Affairs et
al., Case No. 2:07-cv-00310-IPJ," filed in the U.S. District
Court for the Northern District of Alabama under Judge Inge P.
Johnson.
For more details, contact:
P. Stephen Gidiere, III, Esq. (sgidiere@balch.com)
BALCH & BINGHAM LLP
1710 6th Avenue North
PO Box 306
Birmingham, AL 35201-0306
Phone: 205-251-8100
Fax: 205-226-8798
- and -
Caroline Smith Gidiere, Esq. (cgidiere@cwp-law.com)
CAMPBELL WALLER & POER LLC
2100-A Southbridge Parkway, Suite 450
Birmingham, AL 35209
Phone: 205-803-0051
Fax: 205-803-0053
WASHINGTON: Cities Face Lawsuit Over Fines From Traffic Cameras
---------------------------------------------------------------
About nineteen Washington cities are facing a purported class-
action lawsuit filed on behalf of drivers who have been caught
by traffic cameras and paid too much for a ticket, Josh Kerns of
KIRO Radio reports.
On June 23, 2009, Rob Williamson, Esq. of Williamson & Williams
and the Bowler Law Office filed a class-action lawsuit against
several cities in Washington that use "automated traffic safety
cameras" to detect violations of certain traffic laws. The suit
claims that the cities have imposed fines for these violations
that are far more than what was intended, and is permitted, by
the State Legislature.
The use of automated traffic safety cameras was initially
authorized by RCW 46.63.170, a state law passed in 2005. The
main purpose of the legislation is to promote safety, not raise
revenue. The law permits municipalities to use the cameras at
two-arterial intersections, railroad crossings and school speed
zones. The law also provides that the fine issued for an
infraction shall not exceed the amount of the fine issued for
"other parking infractions within the jurisdiction."
Notwithstanding the clear intention of the legislature and the
law, the defendant cities have used the law as a way to generate
revenue. The cities generally charge the same amount -- $124 --
as if the driver had been observed and cited by a police
officer. These fines are up to four times more than the
"parking fines" the state law permits.
Mr. Williamson contends the legislature never meant for cities
to charge the same fine for an infraction caught on a traffic
camera as you would be charged if caught by police. "It was
meant to be a safety measure, not a revenue raiser, and what's
happened I think is that the cities have not really taken that
to heart," he tells KIRO Radio.
The complaint was filed in the King County Superior Court and
has been assigned to Judge Jeffrey Ramsdell. It seeks to
certify a class of all persons who have paid the excess fines.
It also seeks declaratory relief that the practices of the
cities are illegal, an injunction ordering them to stop
assessing the excess fines, and restitution of the excess
amounts paid.
For more details, contact:
Rob Williamson, Esq. (roblin@williamslaw.com)
Williamson & Williams
187 Parfitt Way SW
Suite 250
Bainbridge Island, WA 98110
Phone: (206) 780-4457 or (206) 780-4447
Fax: (206) 780-5557
Web site: http://www.williamslaw.com/
New Securities Fraud Cases
SHEARSON FINANCIAL: Walden Law Firm Files Securities Fraud Suit
---------------------------------------------------------------
Walden Law Firm, PLLC announced that a class action has
been commenced in the United States District Court for the
Eastern District of Arkansas on behalf of purchasers of Shearson
securities between May 7, 2009, and May 12, 2009.
The complaint charges Shearson and certain of its officers
and directors with violations of the Securities Exchange Act of
1934.
Shearson is a financial services company that conducts
business in 47 states throughout the United States.
The complaint alleges that during the Class Period,
defendants issued materially false and misleading statements
regarding the Company's emergence from bankruptcy. The Company
caused a press release to be issued on May 7, 2009, that stated
the Company had emerged from bankruptcy.
In the press release, the Company used the ticker symbol,
SHSNQ to identify itself, which was the ticker symbol belonging
to the Company's old stock which would ultimately be cancelled.
However, at the time the Company issued the press release
the stock listed under the ticker symbol SHSNQ was still trading
and had not been cancelled. As a result of defendants' false
and misleading statements, Shearson's securities traded at
artificially inflated prices during the Class Period, reaching a
high of $.039 on May 8, 2009.
On May 11, 2009, the Company issued a press release stating
among other things that the stock trading under the ticker
symbol SHSNQ would be cancelled and that Shearson's new stock
would trade under a different ticker symbol.
Plaintiff seeks to recover damages on behalf of all
purchasers of Shearson's securities during the Class Period.
For more details, contact:
Richard E. Walden, Esq.
Walden Law Firm, PLLC
Phone: 501-907-7000
e-mail: charterlitigation@gmail.com
Web site:
http://www.waldenlawfirm.com/Cases/Shearson/Shearson.html
Asbestos Alerts
ASBESTOS LITIGATION: W. R. Grace Actions Expunged Last April 14
----------------------------------------------------------------
The U.S. Bankruptcy Court, District of Delaware, on April 14,
2009, disallowed and expunged 35 W. R. Grace & Co. asbestos
claims by the applicable Canadian ultimate limitations periods.
Case No. 01-01139 is styled In re W. R. Grace & Co., et al.,
Debtor(s). Bankruptcy Judge Judith K. Fitzgerald entered
judgment in the case.
The matter before the court is Debtors' Motion and Memorandum
for an Order Disallowing and Expunging Eighty-Eight Time-Barred
Canadian Asbestos Property Damage Claims, docketed as a Motion
for Summary Judgment.
Since the filing of the motion, the 88 claims have been reduced
to 35 due to withdrawal, expungement, or settlement of claims.
Debtors asserted that these remaining 35 claims were time-barred
by the applicable Canadian ultimate limitations periods, similar
to American statutes of repose, and moved for summary judgment.
Anderson Memorial Hospital filed a response to Debtors' motion
on its own behalf and on behalf of the Canadian Claimants. The
Canadian Claimants disputed the dates upon which the ultimate
limitations periods would begin to run and contend that the
limitations periods were tolled.
The 35 claims numbers disallowed and expunged were: 011620,
011632, 012377, 012388, 012394, 012410, 012412, 012421, 012422,
012423, 012438, 012439, 012442, 012443, 012454, 012457, 012489,
012496, 012498, 012500, 012501, 012503, 012537, 012541, 012542,
012546, 012548, 012549, 012554, 012557, 012570, 012576, 012590,
012591, and 014885.
ASBESTOS LITIGATION: Remand Revisions Entered in Grenier Lawsuit
----------------------------------------------------------------
The Superior Court of Delaware, New Castle County, noted remand
revisions in the case styled Roland Leo Grenier, Sr., Plaintiff-
Appellee v. General Motors Corporation and Ford Motor Company,
Defendants-Appellants.
Judge Joseph R. Slights revised and corrected judgment in Civil
Action No. 05C-11-257 ASB on April 8, 2009.
On Feb. 4, 2009, the Supreme Court of Delaware remanded this
case with instructions that the Superior Court determine whether
certain erroneous factual findings set forth in its in limine
ruling denying a defense motion to exclude expert testimony are
of such a nature that the Court, upon considering the correct
facts, must now conclude that the expert testimony is
inadmissible.
To assist the Court in this review, the parties were asked to
supply memoranda that addressed the following question: "Do the
factual errors in this Court's Dec. 13, 2006, opinion require
that the Court reach a different conclusion regarding the
reliability and/or admissibility of Dr. Lemen's causation
testimony?"
The Court has reviewed these memoranda, studied the record and
carefully considered the Supreme Court's Feb. 4, 2009 Opinion.
The Superior Court remained satisfied that the Court properly
determined that Dr. Lemen's general causation testimony was
sufficiently reliable to be presented at trial.
Roland Grenier, Sr. sued General Motors Corporation and Ford
Motor Company alleging that exposure to asbestos contained in
their automotive friction products (including brakes and
clutches) caused him to develop mesothelioma. In the pre-trial
proceedings, Mr. Grenier relied upon this judge's previous
ruling denying an omnibus motion in limine brought by certain
friction product defendants to exclude plaintiffs' expert
causation testimony.
In denying the motion, the Court held that plaintiffs' general
causation experts could testify that exposure to friction
products can proximately cause asbestos-related diseases. The
trial judge relied upon that ruling and allowed plaintiffs'
general causation expert to testify at trial. That decision then
became an issue on appeal.
In its opinion, the Supreme Court identified several factual
errors committed by this judge in connection with the Daubert
ruling, and instructed me to "reconsider and clarify [my]
evidentiary determinations underlying [the] decision to admit
the experts' opinions."
The Prothonotary is directed to deliver this Report on Remand
and the record of this case to the Clerk of the Supreme Court of
Delaware.
Yvonne T. Saville, Esq., of Weiss & Saville, P.A. in Wilmington,
Del.; John J. Spillane, Esq., Kevin D. McHargue, Esq., Renee M.
Melancon, Esq., of Baron & Budd, P.C. in Dallas, represented
Roland Leo Grenier, Sr.
Christian J. Singewald, Esq., of White & Williams, LLP, in
Wilmington, Del.; Eileen Penner, Esq., Andrew Tauber, Esq., of
Mayer Brown, LLP in Washington, D.C., represented General Motors
Corporation and Ford Motor Company.
ASBESTOS LITIGATION: Court Affirms Ruling in Rozmyslowicz Action
----------------------------------------------------------------
The Supreme Court, Appellate Division, Second Department, New
York, upheld the ruling of the Supreme Court, Queens County,
which denied certain motions in a case involving asbestos
cleanup filed by Konstanty Rozmyslowicz.
The case is styled Konstanty Rozmyslowicz, Appellant v. Keyspan
Generation, LLC, Respondent.
Judges Steven W. Fisher, Mark C. Dillon, Ariel E. Belen, and
Cheryl E. Chambers entered judgment in the case on March 3,
2009.
Mr. Rozmyslowicz, who worked for asbestos removal contractor
Keyspan Generation, LLC, was assigned the task of constructing a
wooden tunnel through which workers would pass on their way to a
"mobile decontamination unit."
Mr. Rozmyslowicz brought action under scaffold law to recover
damages for personal injuries sustained after he fell from
tunnel.
After a jury verdict in favor of Keyspan, the Queens County
court denied Mr. Rozmyslowicz' motion for judgment as a matter
of law and his motion to set aside the verdict as against the
weight of the evidence.
Mr. Rozmyslowicz appealed. The Supreme Court, Appellate
Division, held that ample evidence supported jury's verdict.
ASBESTOS LITIGATION: Court Upholds Ruling in Buck Kreihs Action
----------------------------------------------------------------
The U.S. Court of Appeals, Fifth Circuit, upheld the ruling of
the U.S. District Court for the Eastern District of
Louisiana, which granted summary judgment in favor of Chicago
Insurance Company and Interstate Fire and Casualty Company, in a
case involving the Buck Kreihs Company Inc.
The case was a declaratory judgment action to determine
insurance coverage of asbestos-related claims by former Buck
Kreihs employees.
The cases are styled:
-- Fidelity & Casualty Company of New York, Plaintiff v. Buck
Kreihs Company Inc., Defendant.
-- Jimmy Lang, Plaintiff v. Eagle Inc., Defendant.
-- Buck Kreihs Company Inc, as successor to Sank Inc and
formerly known as J.K.T. and Associates, Inc., Defendant-
Third-Party Plaintiff-Appellant v. Chicago Insurance Company;
Interstate Fire and Casualty Company, Third-Party Defendants-
Appellees.
-- Chicago Insurance Company; Interstate Fire and Casualty
Company, Plaintiffs-Appellees v. Buck Kreihs Company Inc., as
successor to Sank Inc and formerly known as J.K.T. and
Associates, Inc., Defendants-Appellants.
Circuit Judges Jerry Smith, Carl Stewart, and Leslie Southwick
entered judgment in Case No. 08-30954 on April 20, 2009.
In August 2007, Chicago and Interstate sued for a declaratory
judgment determining that their policies do not provide coverage
to Buck Kreihs regarding a group of pending asbestos exposure
cases involving former employees.
Buck Kreihs then filed a counter claim alleging the Insurers'
bad faith in handling the claims. Chicago and Interstate moved
for summary judgment and dismissal of Buck Kreihs's
counterclaim. On Oct. 9, 2007, the district court granted
summary judgment to Insurers on their declaratory judgment
action, but denied it as to dismissal of Buck Kreihs's
counterclaim.
On Sept. 16, 2008, the district court entered final judgment.
Dona Jeanne Dew, Esq., George J. Nalley, Jr., Esq., of Nalley &
Dew in Metairie, La., represented Defendant-Third-Party
Plaintiff-Appellant.
Robert Edwin Torian, Esq., of Laborde & Neuner in Lafayette,
La., represented Plaintiff/Third-Party Defendants-Appellees.
ASBESTOS LITIGATION: Court Upholds Revocation of Hygeia License
----------------------------------------------------------------
The Supreme Court, Appellate Division, Fourth Department, New
York, upheld a ruling, which revoked for two years the asbestos
handling license of Hygeia of New York Inc.
The case is styled In the Matter of Hygeia of New York, Inc. and
Eugene A. Carcone, Petitioners v. New York State Department of
Labor and M. Patricia Smith, Commissioner, New York State
Department of Labor, Respondents.
Judges Robert G. Hurlbutt, Erin M. Peradotto, Carni, Samuel L.
Green, and Elizabeth W. Pine entered judgment in Case No. TP 08-
02167 on April 24, 2009.
Petitioners commenced this proceeding seeking to annul the
determination that revoked the asbestos handling license of
Hygeia of New York, Inc. for a two-year period.
Hygeia was hired by the Rome City School District to perform
monitoring services for an asbestos abatement project. Although
Hygeia's president, Eugene A. Carcone, was aware that the
abatement subcontractor had violated part 56 of the Industrial
Code (12 NYCRR part 56) involving the removal of asbestos,
Hygeia nevertheless issued a report to the School District
indicating that the asbestos abatement project was completed in
accordance with all applicable laws.
The Hearing Officer properly determined that the act of falsely
reporting to the School District that the asbestos abatement
project was in compliance with all applicable laws was an
adequate basis for the revocation of Hygeia's asbestos handling
license for two years.
The petition was dismissed.
Anthony J. LaFache, Esq., in Utica, N.Y., represented
Petitioners.
Andrew M. Cuomo, Attorney General, (Paul Groenwegen, Esq., of
Counsel) in Albany, N.Y., represented Respondents.
ASBESTOS LITIGATION: 37% of Victims Unsure of Exposure Location
----------------------------------------------------------------
It was found on June 17, 2009 that 37 percent of asbestos
disease sufferers, who responded to a Japanese Environment
Ministry survey, say they did not know where they inhaled
asbestos fibers, The Yomiuri Shimbun reports.
The Ministry surveyed 3,351 people eligible for financial
support under a law aimed at assisting people with health
problems caused by asbestos. The survey covered a two-year
period from the enforcement of the law in 2006 through the end
of fiscal 2007.
Many of the people recognized with asbestos-induced illnesses
like lung cancer or mesothelioma are believed to have inhaled
asbestos fibers in or near factories that deal with the
substance.
ASBESTOS LITIGATION: Hextable Builder's Death Linked to Exposure
----------------------------------------------------------------
An inquest heard that the death of 60-year-old carpenter and
builder, John Towersey, of Hextable, England, was linked to
workplace exposure to asbestos, This is Local London reports.
Mr. Towersey's widow, Beverely, says her husband would still be
alive today had he worn protective clothing. He died on May 31,
2009 after a six-year battle with mesothelioma.
Mr. Towersey came into contact with asbestos when he worked as
an apprentice carpenter in Dartford in the 1960s and later as a
builder for Greenwich Council. However, Mrs. Towersey says
people were not fully aware of its risks.
Mr. Towersey's mother died from the same illness four years ago
aged 82. At the inquest, the coroner ruled that she contracted
the disease from washing his overalls when he was serving his
apprenticeship.
In his final years, Mr. Towersey gave support and advice to
fellow mesothelioma sufferers at the Barking and Dagenham
Asbestos Victims Support Group in Essex.
Mr. Towersey's funeral was held on June 11, 2009.
ASBESTOS LITIGATION: Scottish Victims to Get Payout for Illness
----------------------------------------------------------------
June 18, 2009 marks the beginning of a process, which allows
Scottish asbestos victims to claim thousands of pounds in
compensation, the Chronicle reports.
A new law allowing the victims of pleural plaques to claim
compensation from employers who exposed them to asbestos fibers
came into force on June 17, 2009 after being approved by the
Scottish Parliament in March.
It means Scottish sufferers of pleural plaques, which is
associated with an increased risk of developing fatal cancer
mesothelioma, are now able to set their claims in motion.
However, English victims, including hundreds of former workers
across Tyneside, are still living in legal limbo awaiting a
Government announcement.
Justice Secretary Jack Straw has repeatedly delayed an
announcement on the future of compensation. The latest promise
was to reveal a decision before Parliament's summer recess.
Experts believe the Government is waiting for the outcome of a
judicial review which was launched in Scotland by insurance
bosses who stood to lose thousands under the new law.
Compensation was snatched away from English workers back in 2007
when the High Court ruled in favor of the insurance industry,
who claimed plaques do not have symptoms. Yet there were high
hopes that the Government would announce a compensation U-turn
as a result of the review.
Sufferers, many of whom are elderly and plagued by illness, are
unable to move any further in the long process of filing a claim
against negligent employers while they wait for news from
ministers.
ASBESTOS LITIGATION: Mallam Denies Causing Able UK Shipyard Fire
----------------------------------------------------------------
Michael John Mallam appeared at Hartlepool Magistrates' Court to
deny causing a fire at the Able UK's recycling shipyard at
Graythorp, Teesside, England, the Hartlepool Mail reports.
The fire caused damages worth GBP112,000 to asbestos
decontamination chambers and cleaning facilities.
The 41-year-old Mr. Mallam, of Frampton Green, Middlesbrough,
has pleaded not guilty to committing criminal damage at the
shipyard on March 7, 2009. He also denied an assault alleged to
have been committed at the yard on the same day.
Justices at the Magistrates' Court declined jurisdiction, and
Mallam will appear back at the court on Aug. 12, 2009 for a
committal hearing. He was granted conditional bail until then.
ASBESTOS LITIGATION: Hazard Found at Historic Gastonia Hospital
----------------------------------------------------------------
A historic hospital in Gastonia, N.C., contains asbestos and
prompting Gaston County Commissioners to consider demolishing
the hospital, Mesothelioma.com reports.
The property's appraised value is US$275,000. However, the
estimated costs of demolishing the building and removing the
toxic asbestos and other contaminants lurking in the walls would
cost an estimated US$750,000.
Gaston County Commissioners voted to transfer the 64-year-old
hospital into the care of the City. The building was home to
several county offices until the site was vacated in 2007. The
City is currently seeking grant money to raze the hospital and
replace it with new residential housing units.
The County therefore decided to hand the building over to the
City, as city officials have better access to US$2 million in
federal grants. It is believed that the City will have a better
chance of gathering the funds to tear down the building and
erect a new structure on the property. In addition, the building
is a huge safety liability and no longer generates tax revenue
for Gaston County.
The building is no longer structurally sound, and dead birds and
their feces have contaminated the building. Black mold, smoke
damage, and asbestos rounds out the list of problems that make
demolishing the building seem like the best choice.
ASBESTOS LITIGATION: Asbestos Discovered in 60 Redbridge Schools
----------------------------------------------------------------
More than 60 primary and secondary schools in Redbridge,
England, contain asbestos, the Guardian reports.
Figures obtained by the Guardian show nearly every major
secondary and most primary schools have been identified by
Redbridge Council as having structures containing asbestos.
However the authority says the school figures comprise "a
significant amount of lowest risk category material."
The revelations come after a former Redbridge teacher, 58-year-
old Carole Hagedorn, warned asbestos was a "ticking cancer
timebomb" for pupils and staff at schools.
Ms. Hagedorn, who was diagnosed with mesothelioma in the summer
of 2008, taught at three unnamed schools in the borough during a
career spanning 34 years.
A council spokeswoman said: "The Council's key priority is to
ensure the health and safety of all teachers and pupils and
anybody working or visiting a council or school building. As
such the council has put in place robust measures to identify
asbestos and where necessary remove it.
"This is in line with the guidance from the Health and Safety
Executive that does not recommend the automatic removal of
asbestos. The Council's Asbestos Management System (AMS) ensures
that regular inspections of all known asbestos materials are
carried out by trained inspectors."
Under recent government legislation, Redbridge Council has been
forced to identify and monitoring the presence of asbestos in
its buildings.
An estimated 80 percent of schools in the United Kingdom are
thought to contain asbestos. Around 4,000 people die annually
from diseases like mesothelioma and lung cancer caused by
inhaling asbestos.
ASBESTOS LITIGATION: Aussie Local Seeks Review of School Cleanup
----------------------------------------------------------------
Simon Smith, a father from Gold Coast, Queensland, Australia, is
calling for a Queensland Government review of its building arm
Qbuild after a botched asbestos removal operation from the
Caningeraba State School, NEWS.com.au reports.
Despite assurances from the school that material being removed
was not asbestos, it was indeed asbestos. Public Works Minister
Robert Schwarten has asked for anyone with information that
Qbuild lied over the issue to contact him.
Mr. Smith would not rest until he knew for certain whether a bag
rack removed from the school on June 3, 2009 contained asbestos.
He said despite QBuild workers' denials, his suspicions proved
correct.
As a result of his investigation, the Minister for Public Works,
Robert Schwarten, said QBuild would review its removal processes
so that such items were removed well outside school hours.
Mr. Smith said he had already contacted the Premier's Department
and he would definitely be taking the matter to Minister
Schwarten.
ASBESTOS LITIGATION: Exposure Cases Expected to Rise in Nahariya
----------------------------------------------------------------
Experts believe the number of mesothelioma cases in Nahariya,
Israel, is expected to increase as individuals exposed to
asbestos will age, HAARETZ.com reports.
Nahariya and the surrounding area have one of the largest
concentrations in the world of people with mesothelioma.
The information was presented at a conference at Petah Tikva's
Rabin Medical Center by Dr. Micha Bar-Hana, director of the
Health Ministry's cancer registry.
Dr. Bar-Hana said the prevalence of mesothelioma in the Acre
District, which includes Nahariya, reached 5.72 per 100,000
residents between 2002 and 2008. The overall total number of
patients for the period was 19.
Nahariya was home to the only asbestos plant in the country,
which was shut down in 1997.
Seven years ago, in the Acre district the rate stood at only
3.55 per 100,000. By comparison, in the Tel Aviv district the
rate is only 0.55 cases per 100,000 residents.
Between 1990 and 2008 there were a total of 606 cases of
mesothelioma in Israel. Most of the people who developed the
disease have died.
In recent years, there have been 30 new cases of mesothelioma
per year, mainly among men who worked with asbestos.
According to the International Agency for Research on Cancer,
the highest rate of asbestos-related cancer cases in the world
can be found in the environs of Genoa, Italy, where there are
5.8 cases for every 100,000 persons.
ASBESTOS LITIGATION: Cleanup Plans in Westward Ho! Site Underway
----------------------------------------------------------------
Asbestos cleanup at the former John Fowler Holiday Park site in
the village of Westward Ho!, England, is set to commence, the
North Devon Journal reports.
The Health and Safety Executive stepped in at April 2009,
stopping development work on the former John Fowler Holiday
Park.
Chalets which contain asbestos had been demolished and so the
HSE issued notices to Alpha Project Ltd, which owns the site,
and contractors, Higham Manor Properties Ltd to stop work. Some
two months later, the asbestos is still on the site and near to
people's homes.
Nick Spence of Alpha Project Ltd said he is hoping that work
will soon begin on the clear up which is expected to take four
to five weeks. He said that subcontractors Project24 from
Holsworthy, England, had done the initial demolition work.
The HSE said it was responsible for ensuring the safety of those
working on site while Torridge District Council is responsible
for the health of those living in the surrounding areas.
However, both said that they had no powers to step in and take
legal action to ensure the site is cleared up at the moment. An
HSE spokesman said its main concern was getting the site cleared
up, but this was the responsibility of the owners.
Despite Torridge District Council knowing about the asbestos
when the HSE stepped in on April 3, 2009, it did not impose
orders to limit emissions until April 15, 2009. However, the
Council does not accept that there was undue delay in its
investigation.
Peter Snart-Smith, environmental protection co-manager at the
council, told the Journal, "Although there is potential for wind
entrainment to carry asbestos fibers away from the site,
repeated air tests over many weeks have failed to demonstrate
that this is occurring. The actual health risk to members of the
public is therefore negligible at present."
The 60 chalets on the site were being knocked down in order to
build 160 holiday apartments, an indoor swimming pool and a cafe
bar.
ASBESTOS LITIGATION: 19 Cases Filed in Madison From June 1 to 5
----------------------------------------------------------------
During the week of June 1, 2009 through June 5, 2009, about 19
new asbestos lawsuits were filed in Madison County Circuit
Court, Ill., The Madison St. Clair Record reports.
These cases are:
-- (Case No. 09-L-564) Nicholas S. Argenti Sr. and June Loretta
Argenti of New York claim Mr. Argenti developed asbestosis
after his work in the U.S. Navy. Elizabeth V. Heller, Esq.,
and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli
and Rowland in Edwardsville, Ill., will be representing the
Argentis.
-- (Case No. 09-L-573) Dennis Bernard of Maryland, a bricklayer
and pipefitter, claims lung cancer. Bernard Robert Phillips,
Esq., Perry J. Browder, Esq., and Rosalind M. Robertson,
Esq., of SimmonsCooper in East Alton, Ill., represent Mr.
Bernard.
-- (Case No. 09-L-570) Anthony Branconi of Pennsylvania, an
electrician, claims lung cancer. Robert Phillips, Esq., Perry
J. Browder, Esq., and Rosalind M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., represent Mr. Branconi.
-- (Case No. 09-L-571) Kenneth Heasley Sr. of South Dakota, a
boiler and furnace repairman and installer, furnace
insulator, construction foreman, mechanic and maintenance
worker, claims lung cancer. Robert Phillips, Esq., Perry J.
Browder, Esq., and Rosalind M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., represent Mr. Heasley.
-- (Case No. 09-L-557) James A. Hendren of Virginia, a
sanitation worker for the town of South Boston, Va., claims
mesothelioma. Elizabeth V. Heller, Esq., and Robert Rowland,
Esq., of Goldenberg, Heller, Antognoli and Rowland in
Edwardsville, Ill., represent Mr. Hendren.
-- (Case No. 09-L-572) Isiah Hill Jr. of New Jersey, an
electrician, claims lung cancer. Robert Phillips, Esq., Perry
J. Browder, Esq., and Rosalinid M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., represent Mr. Hill.
-- (Case No. 09-L-561) Dennis Hubner of Illinois, a machinist,
shift coordinator and fork lift operator, claims
mesothelioma. He also helped on the family farm. Timothy F.
Thompson Jr., Esq., of SimmonsCooper in East Alton, Ill.,
will be representing Mr. Hubner.
-- (Case No. 09-L-559) Mark S. Junghans of Wisconsin, a
drywaller, laborer, engine mechanic, mechanic, medic,
residential construction and remodeling worker and shade-tree
mechanic, claims mesothelioma. Randy L. Gori, Esq., of Gori,
Julian and Associates in Alton, Ill., represents Mr.
Junghans. W. Mark Lanier, Esq., Patrick N. Haines, Esq., and
W. Casey Harris, Esq., of The Lanier Law Firm in Houston will
serve of counsel.
-- (Case No. 09-L-568) Earl Leeder of California, a custodian,
engineer and plant director, claims lung cancer. Robert
Phillips, Esq., Perry J. Browder, Esq., and Rosalind M.
Roberstson, Esq., of SimmonsCooper in East Alton, Ill.,
represent Mr. Leeder.
-- (Case No. 09-L-550) Steven Meyer of Okawville claims his
deceased wife, Olivia Meyer, developed pleural mesothelioma
after her work as a bundle girl and custodian. She was also
secondarily exposed to asbestos fibers through her son, who
worked as a mechanic, Mr. Meyer claims. G. Michael Stewart,
Esq., and Jill Price, Esq., of SimmonsCoooper in East Alton,
Ill., will be representing Mr. Meyer.
-- (Case No. Joyce Mullenix of Georgia claims her deceased
husband, Walt T. Mullenix, developed lung cancer after his
work as an insulator. Mrs. Mullenix says her husband also
worked at industrial and commercial job sites, including
paper mills, hospitals, colleges, power plants, refineries,
hotels, airports, schools, textile mills and chemical plants.
Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of
Goldenberg, Heller, Antognoli and Rowland in Edwardsville,
Ill., will be representing Mrs. Mullenix.
-- (Case No. 09-L-574) James Nangle of Florida, a truck driver
at various locations, claims mesothelioma. Brian J. Cooke,
Esq., and Drew Sealey, Esq., of SimmonsCooper in East Alton,
Ill., will be representing Mr. Nangle.
-- (Case No. 09-L-556) Bonnie Nichols of Kansas claims her
deceased husband, Neal Nichols, developed mesothelioma after
his work from as a carpenter, laborer and truck driver. Brian
J. Cooke, Esq., of SimmonsCooper in East Alton, Ill.,
represents Mrs. Nichols.
-- (Case No. 09-L-576) Brian Noe Jr. of Minnesota claims his
deceased father, Brian Noe Sr., developed mesothelioma after
his work as a laborer at Admiral TV; as a laborer in the U.S.
Navy and at Al Phister Plumbing and Heating; as a laborer at
Butcher Boy Doors; as a foreman at Roy Hunt Construction; as
a foreman at Bosin Construction and as a laborer at Smith
Steel Inc. Randy L. Gori, Esq., and Barry Julian, Esq., of
Gori, Julian and Associates in Edwardsville, Ill., represent
Mr. Noe.
-- (Case No. 09-L-569) Charles Scott of Georgia, an aircraft
worker, equipment cleaner, aircraft parts assembler, ship
mechanic and insulator, claims lung cancer. Robert Phillips,
Esq., Perry J. Browder, Esq., and Rosalind M. Robertson,
Esq., of SimmonsCooper in East Alton, Ill., will be
representing Mr. Scott.
-- (Case No. 09-L-358) David Sommerman of Georgia claims Edward
Sommerman died after developing mesothelioma after working as
a fire proofer. Richard L. Saville Jr., Esq., and Ethan A.
Flint, Esq., of Alton, Ill., represent Mr. Sommerman.
-- (Case No. 09-L-567) James Spangler of Kentucky, a
construction worker, claims lung cancer. He says he was
secondarily exposed to asbestos fibers through his family
member, John Spangler, who worked as an electrician. Robert
Phillips, Esq., Perry J. Brower, Esq., and Rosalind M.
Robertson, Esq., of SimmonsCooper in East Alton, Ill., will
be representing Mr. Spangler.
-- (Case No. 09-L-577) Leslie Vernon Sr. and Mary Ivy Lea Vernon
of Texas allege Mr. Vernon developed mesothelioma after his
work in the U.S. Marine Corps and as an electrician.
Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of
Goldenberg, Heller, Antognoli and Rowland in Edwardsville,
Ill., represent the Hellers.
-- (Case No. 09-L-566) Louise Wilkerson of North Carolina, a
spinner and laborer, claims lung cancer. Robert Phillips,
Esq., Perry J. Browder, Esq., and Rosalind M. Robertson,
Esq., of SimmonsCooper in East Alton, Ill., represent Mr.
Wilkerson.
ASBESTOS LITIGATION: 3 La. Firms Fined $112T for OSHA Violations
----------------------------------------------------------------
The U.S. Department of Labor's Occupational Safety and Health
Administration has cited Louisiana Health Care Consultants LLC,
Dean Building Holdings and Bob Dean Enterprises Inc. jointly for
three alleged willful and 10 alleged serious violations of
federal health and safety regulations, according to an OSHA
press release dated June 19, 2009.
Proposed penalties total US$112,000.
Dean McDaniel, OSHA's regional administrator in Dallas, said,
"These companies failed to follow OSHA's standards for asbestos-
related projects in the construction industry. Employers must be
committed to keeping the workplace safe and healthful to prevent
injuries, illnesses and fatalities."
The willful violations were issued for failing to provide a
competent person to supervise the removal of a ceiling that
contained asbestos, to provide the required respiratory
equipment and to inform workers that the worksite contained
asbestos.
Serious violations included failing to monitor for asbestos
materials, to utilize engineering controls to determine and
minimize employee exposure to asbestos, to provide and ensure
the use of personal protective equipment, to properly manage
contaminated clothing and asbestos containing waste and to train
employees engaged in the removal of asbestos.
Louisiana Health Care Consultants specializes in the management
and maintenance of nursing homes. Bob Dean Enterprises manages
commercial and residential properties. The two companies each
employ about 10 workers in Baton Rouge, La. The citations
stemmed from work being performed at the State National Life
Building in downtown Baton Rouge, which is owned by Dean
Building Holdings and managed by Bob Dean Enterprises.
The companies have 15 working days from receipt of the citations
to comply, request an informal conference with OSHA's Baton
Rouge area director or contest the citations and penalties
before the independent Occupational Safety and Health Review
Commission.
ASBESTOS LITIGATION: Inquest Rules on Peterborough Local's Death
----------------------------------------------------------------
An inquest heard that the death of retired plumber David Jones,
of Peterborough, England, was linked to exposure to asbestos,
the Evening Telegraph reports.
The 66-year-old Mr. Jones died at Thorpe Hall Hospice in
Peterborough on April 14, 2009 from malignant mesothelioma.
The inquest, held at Peterborough Register Office in Thorpe
Road, heard Mr. Jones had worked as a fitter's mate at Battersea
power station in London during the 1960.
Mr. Jones had also handled asbestos in other jobs, including
when he worked as a plumber for South Holland District Council
from 1999.
Concluding that Mr. Jones had died from an industrial disease,
the coroner said, "The position is very clear. The cause of
death was malignant mesothelioma, a disease which is known to be
caused by exposure to asbestos."
ASBESTOS LITIGATION: U.K. Gardener Awarded GBP205,000 in Damages
----------------------------------------------------------------
A gardener, who was known only as Mr. Gaffney and was diagnosed
with mesothelioma, has been awarded GBP205,000, with the help of
UNISON, according to a UNISON press release dated June 22, 2009.
The United Kingdom's largest public sector union helped Mr.
Gaffney claim the compensation after he was exposed to asbestos
while working for the University of Liverpool during the 1980s.
The 57-year-old Mr. Gaffney took his lunch breaks in the boiler
room at the university, which had asbestos insulation.
Mr. Gaffney was diagnosed with mesothelioma on February 2008.
Following his diagnosis, Mr. Gaffney contacted UNISON. The
union's solicitors, Thompsons, pursued the claim for 12 months
in the High Court, in London.
ASBESTOS LITIGATION: Canadian Gov't. to Clean Up Old Radar Sites
----------------------------------------------------------------
The Canadian Government, over the next six years, will be
cleaning up 16 abandoned Cold War radar sites in northern
Ontario at an estimated cost of more than CAD100 million, The
Canadian Press reports.
The sites, part of the old Mid-Canada advance warning line, are
contaminated with PCBs, hydrocarbons, mercury, and asbestos.
The Province of Ontario will provide CAD73 million to clean up
toxic materials at all 16 radar sites along the coasts of James
Bay and Hudson Bay. The federal government will contribute up to
CAD30 million to help clean up 11 of the most highly
contaminated radar stations.
Local First Nations people will be hired to help eliminate
pollutants at the radar stations, which have not bee used since
the mid-1960s.
Natural Resources Minister Donna Cansfield says the sites must
be cleaned up to help conserve the unique ecology of Ontario's
vast boreal region.
ASBESTOS LITIGATION: Cape Building Worker Gets GBP84T in Payout
----------------------------------------------------------------
Field Fisher Waterhouse LLP has won GBP84,000 in compensation
for a certain Mr. B, a 67-year-old man from Hayes, England,
according to a Field Fisher Waterhouse press release dated June
21, 2009.
Mr. B contracted lung cancer after being exposed to asbestos
dust while working as a laborer for Cape Building Products
Limited in the 1960s.
During his 18 months at Cape Building Products, Mr. B was
heavily exposed to asbestos dust in the course of his work. His
tasks included handling sacks of raw asbestos which he was
required to open and empty out.
Generally it is very difficult to prove the connection between
lung cancer and asbestos exposure where the sufferer has not
first contracted asbestosis. In this case, Mr. B had also smoked
heavily for most of his adult life, making it even harder to
establish the connection.
Michael Osborne, solicitor in the Asbestos Claims Group at Field
Fisher Waterhouse, was able to negotiate a settlement from Cape
Building Products' insurer with the help of a medical report
proving that asbestosis did not need to be present for a
patient's lung cancer to be attributed to asbestos exposure. Mr.
B received a settlement of GBP84,000 in compensation which took
into account a deduction of 17.5 percent to reflect his history
of smoking.
Michael Osborne, senior associate in the Asbestos Claims Group
at Field Fisher Waterhouse, commented, "I am pleased that we
were able to prove the connection between Mr. B's lung cancer
and his exposure to asbestos at Cape Building Products in the
1960s. Despite being exposed to asbestos dust for only a short
time, this was enough for him to contract a serious disease.
This settlement will provide Mr. B and his family with the
necessary means to cover the costs of his ongoing care."
Mr. B's son said, "I would like to take this opportunity, on
behalf of my father and myself, to thank the firm for the
professional and sympathetic way they have dealt with our claim.
On a personal note, I would like to thank Michael for making
such a big difference to our situation."
ASBESTOS LITIGATION: Northeast Workers Charged for CAA Breaches
----------------------------------------------------------------
Two workers of Northeast Demolition and Removal, 49-year-old
Arthur Amaral and 37-year-old Shaun Amaral, on June 18, 2009,
were charged for improperly removing asbestos from properties in
Attleboro, Mass., and North Attleboro, Mass., The Sun Chronicle
reports.
Arthur, of Middleboro, owner of Northeast Demolition and
Removal, and Shaun, of Norton, the Company's site foreman, were
indicted on charges that they failed to file notices of asbestos
demolition with the Massachusetts Department of Environmental
Protection, failed to conduct proper asbestos removal and failed
to comply with asbestos disposal regulations.
Arthur and Shaun will be summonsed for arraignment in Bristol
County Superior Court at a later date.
Authorities allege the defendants directed workers to demolish
parts of the old Balfour building at 21 East St. in North
Attleboro, and buildings at 888-896 North Main St. in Attleboro
before asbestos had been removed.
It is alleged a consultant for the Company conducted an asbestos
survey of the buildings but the Company did not properly remove
the asbestos from the sites before it began demolition or
renovation work.
Inspectors from MassDEP inspected the properties in September
2007 and allegedly discovered evidence that floor tiles, piping
and other debris from the demolition was covered in asbestos.
Inspectors also allegedly discovered 76 cardboard drums
containing tiles and pipe insulation that tested positive for
asbestos inside a storage facility in Middleboro.
The case was investigated by the Massachusetts Environmental
Crimes Strike Force. Assistant Attorney General Joe Eisenstadt,
Esq., is prosecuting the case.
Environmental analysts Joseph Leary and Andrew Cooney and
attorney Daniel d'Hedouville from MassDEP's southeast regional
office investigated the case.
ASBESTOS LITIGATION: Gordon-Smith Facing Asbestos Cleanup Charge
----------------------------------------------------------------
Kevin Gordon-Smith, a 51-year-old asbestos abatement contractor
from Chili, N.Y., was arraigned on June 19, 2009 on federal
charges that he mishandled asbestos cleanup projects at seven
sites, DemocratANDChronicle.COM reports.
On June 18, 2009, Mr. Gordon-Smith was charged with 15 criminal
offenses, including four instances of improper asbestos removal
or disposal and four charges of providing false information to
federal officials.
Among the work sites where federal officials now question
asbestos-handling practices are two elementary schools, Roberts
Wesleyan College, buildings owned by two well-known human
service agencies and the former Genesee Hospital.
However, there are no allegations and no evidence that anyone at
those work sites was exposed to asbestos, except at the
Alexander Street hospital complex, where it is claimed that
employees of Gordon-Smith Contracting were directed to remove
and cut up asbestos-containing materials in 2007 without taking
any precautions.
Craig R. Gestring, Esq., the assistant U.S. attorney prosecuting
the case, said, "He had workers removing pipes, ceiling tiles,
without any protection at all."
Mr. Gestring said officials have tried to locate and advise
those workers, at least some of whom did not speak English. He
said he did not know whether any had health problems and did not
know if all of them have been identified.
Mr. Gordon-Smith was arraigned before U.S. District Judge
Charles J. Siragusa and remained free pending trial.
ASBESTOS LITIGATION: GM Objection in Bankruptcy Filed on June 19
----------------------------------------------------------------
General Motors Corporation, on June 19, 2009, opposed requests
for an official tort claimant committee in its bankruptcy case
by the consumer victims group and a group of people who say they
have asbestos injury claims against the Company, Bloomberg
reports.
The case is In re General Motors Corp., 09-50026, U.S.
Bankruptcy Court, Southern District, New York (Manhattan).
According to the objection from the Company's lawyers at Weil
Gotshal & Manges LLP, "The movants' assertion that the large
size of these Chapter 11 cases warrant the appointment of
additional unsecured committees is simply wrong."
The objection further states that there is no need for another
official committee in the Company's Chapter 11 case because its
15-member unsecured creditors committee includes "two tort
claimants and one asbestos personal injury claimant."
On June 1, 2009, the Company filed for bankruptcy and a hearing
on the proposed sale is scheduled for June 30, 2009. The
Company's attorney, Harvey Miller, Esq., said that no other
bidder is expected to emerge to challenge the offer from the
Treasury-funded Vehicle Acquisition Holdings LLC.
According to the Company's bankruptcy filing, under its current
sale plan, the U.S. government would get 60 percent of the new
GM for making US$50 billion in bailout loans.
A worker fund would get a 17.5 percent stake for giving up
health-care benefits, and two Canadian government entities would
get an 11.7 percent equity share for their loans. Bondholders
and unsecured creditors would share 10 percent of the equity,
plus warrants.
ASBESTOS LITIGATION: Baylor "Unaware" of CSX Transportation Case
----------------------------------------------------------------
Lawyers in Earl Baylor's deposition say they found that Mr.
Baylor knew next to nothing about his asbestos case against
Inc., The Madison St. Clair Record reports.
On June 16, 2009, CSX lawyer Marc Williams, Esq., of Huntington,
W.Va., wrote to Judge Frederick Stamp, "Baylor's case was a
sham."
During his May 11, 2009 deposition, Mr. Baylor "had virtually no
knowledge of the circumstances" around his representation by
Peirce, Raimond and Coulter of Pittsburgh, Williams wrote. He
wrote that Peirce firm lawyers "consistently acted without his
authorization."
Mr. Baylor wrote that at his deposition, he identified his own
signature on a questionnaire but said handwriting on the
asbestos exposure section belonged to someone else.
Judge Stamp plans to start trial on Aug. 11, 2009 on CSX's fraud
conspiracy suit against the Peirce firm, owner Robert Peirce,
and radiologist Ray Harron of Bridgeport, W.Va.
CSX claims Peirce manufactured lawsuits using "black market"
evidence. CSX sought to challenge hundreds of suits, but Judge
Stamp ruled that he would hear evidence only about Mr. Baylor's
suit.
Mr. Williams wrote, "Baylor did not know the screenings he
attended were conducted by the Peirce firm." He added that Mr.
Baylor did not receive results of the screenings.
Mr. Williams wrote that Mr. Baylor "offered conflicting
testimony as to whether he even understood that the Peirce firm
had filed a lawsuit against CSX on his behalf." He added that
Mr. Baylor did not know where the suit was filed.
Mr. Williams wrote that Mr. Baylor did not know the suit was
dismissed in 2006, refiled in 2008, and dismissed again. He
wrote "Peirce himself admits that Baylor's claim was refiled in
2008 without any conscious consideration by any employee at the
Peirce firm."
Mr. Williams pleaded to pursue a claim against former Peirce
associate Louis Raimond, who claims his retirement in 2003
clears him of responsibility.
Mr. Williams wrote that Peirce and Raimond directed technician
Jim Corbitt to take low quality X-rays of Mr. Baylor and others
in a hotel parking lot near Augusta, Ga. He wrote "Corbitt
produced an X-ray of Mr. Baylor that was both underexposed and
underinflated so as to show more white marks in the lung fields
than would be seen on a higher quality film." The firm sent Mr.
Baylor's X-ray to Dr. Harron, who had generated about 6,000
positive reports for the Peirce firm alone.
Mr. Williams wrote that in 2007 Peirce instructed Mr. Baylor to
travel to Columbia, S.C., for examination by Richard Cassoff,
Peirce's personal physician, who examined 197 CSX workers in a
day.
"Given the foregoing circumstances, it should come as no
surprise that Cassoff "diagnosed" Baylor and every other client
he saw as having asbestosis," Mr. Williams.
ASBESTOS LITIGATION: $440Mil Victory Secured in Travelers Action
----------------------------------------------------------------
Chicago-based Goldberg Kohn announced a major victory in the
U.S. Supreme Court on June 19, 2009 for beneficiaries of a
US$440 million settlement with Travelers Insurance in 2005 of
asbestos-related claims, according to a Goldberg Kohn press
release dated June 19, 2009.
In a 7-2 majority ruling, the Court said that a 1986 global
asbestos settlement provided for in the Johns-Manville Corp.
plan of reorganization shields Travelers Companies Inc., from
new asbestos claims relating to Johns-Manville Corp.
The settlement had been approved in the Bankruptcy Court and
District Court in the Johns-Manville case, but overturned by the
Second Circuit Court of Appeals. The legal team, led by Ronald
Barliant, Esq.; Katie Pamenter, Esq. (acting as counsel of
record); and Kenneth Ulrich, Esq., working with Travelers,
appealed to the Supreme Court, which reversed the Second
Circuit.
Judge Barliant, who is a former U.S. bankruptcy judge for the
Northern District of Illinois, said, "The opinion will be
important in future Chapter 11 bankruptcy cases because it
confirms the finality of plans of reorganization, even when plan
provisions are attacked on the grounds of lack of jurisdiction."
Goldberg Kohn, representing a group of the beneficiaries of the
2005 settlement (including a former asbestos worker turned
attorney, Lawrence Madeksho), obtained affirmance of the 2005
settlement in the district court, but the Second Circuit
reversed solely on the grounds that the bankruptcy court in 1986
did not have jurisdiction to enter the plan injunctions.
In reversing the court of appeals, the Supreme Court made it
clear that a bankruptcy court order confirming a plan of
reorganization is final and cannot be attacked even on the
grounds that the court lacked subject matter jurisdiction to
approve a particular provision.
Judge Barliant added, "Beginning even in the lower courts, we
argued that the jurisdiction of the bankruptcy court to confirm
the plan including the injunctions was beyond attack two decades
later. It is gratifying that the Supreme Court agreed."
ASBESTOS LITIGATION: CSR Ltd. to Address Asbestos Exposure Cases
----------------------------------------------------------------
CSR Limited says that it will ensure there are enough funds
available to meet asbestos-related compensation liabilities
before it will proceed with the proposed demerger of its two
main divisions, The Age reports.
On June 17, 2009, the Company announced its intention to demerge
its two operations into separately listed entities.
Slater & Gordon senior partner Peter Gordon said in a statement
on June 19, 2009 that reports suggested the Company would hive
off its asbestos liability to the building entity.
Mr. Gordon said the Company was responsible for one of the
world's biggest asbestos death tolls resulting from its blue
asbestos mine at Wittenoom, Western Australia, which operated
from the 1940s until its closure in 1966. The death toll was
still growing, he added.
ASBESTOS LITIGATION: Court Upholds Board Ruling in Dechio Action
----------------------------------------------------------------
The Appellate Court of Connecticut upheld the ruling of the
Workers' Compensation Board, which dismissed a fund's petition
for review in a case involving asbestos compensation filed by
Lovie Dechio on behalf of her husband Peter Dechio.
The case is styled Lovie Dechio v. Raymark Industries, Inc., et
al.
Judges F. Herbert Gruendel, Douglas S. Lavine, and West entered
judgment in Case No. 29461 on April 28, 2009. Judge Lavine filed
a dissented opinion.
On Dec. 12, 1981, Mr. Dechio, a retired, longtime blue collar
worker for Raymark Industries Inc., died from complications from
lung cancer. On June 24, 1988, the commission rendered a finding
and award that found that Mr. Dechio died as a result of his
exposure to asbestos arising out of and during the course of his
employment with Raymark and that Mrs. Dechio was entitled to
benefits from his date of death until her death or remarriage.
The commissioner ordered Raymark to pay those benefits and
stated that a hearing would be held to determine Mr. Dechio's
average weekly wage.
In 1988, Raymark entered involuntary bankruptcy, from which it
briefly emerged in 1996. As a result, hearings on the
compensation rate were not held until August 1997 and September
1997. A decision was not reached. However, because Raymark
entered voluntary bankruptcy in March 1998, proceedings again
were halted.
Mrs. Dechio then sought relief from the automatic stay
provisions of federal bankruptcy law so as to allow her to
pursue payment from the. On June 29, 2000, Mrs. Dechio received
an order from the Bankruptcy Court granting her relief from the
automatic stay. In 2002, the fund was cited into the proceedings
because of its potential liability.
On Dec. 23, 2005, the Bankruptcy Court granted Mrs. Dechio's
motion for relief from the automatic stay and ordered Raymark's
automatic stay lifted so as to allow her to seek an order
directly against Raymark under the commissioner's Sept. 30, 2005
finding and award. In his Sept. 29, 2006 finding and award, the
commissioner directed Raymark to pay all the benefits due Mrs.
Dechio under the Sept. 30, 2005 finding and award.
On Oct. 25, 2006, the commissioner issued a supplemental order
directing the fund to pay Mrs. Dechio. On Nov. 14, 2006, the
fund filed a petition for review with the board. On Nov. 20,
2006, Mrs. Dechio filed a motion to dismiss the fund's petition
for review.
In its Nov. 28, 2007 opinion, the board granted Mrs. Dechio's
motion to dismiss, and this appeal timely followed. The decision
of the workers' compensation board was affirmed.
Maribeth M. McGloin, Esq., represented Raymark.
Christopher Meisenkothen, Esq., represented Mrs. Dechio.
ASBESTOS LITIGATION: Court Reverses Board Ruling in Stec's Claim
----------------------------------------------------------------
The Appellate Court of Connecticut reversed a Workers'
Compensation Board ruling in a case involving asbestos
compensation styled Richard Stec et al. v. Raymark Industries,
Inc., et al.
Judges F. Herbert Gruendel, Douglas S. Lavine, and West entered
judgment in Case No. 29346 on April 28, 2009.
In 1986, the plaintiffs, Richard Stec, now deceased, and June
Stec, his surviving spouse, filed a workers' compensation claim
alleging that Mr. Stec contracted lung cancer as a result of
exposure to asbestos during the course of his employment with
the defendant Raymark Industries, Inc.
Raymark has been in bankruptcy since 1986, and the defendant
second injury fund was cited in as a party to the workers'
compensation claim because of its potential liability. Hearings
were held before the compensation commissioner between 2002 and
2005, and on Oct. 3, 2005, the commissioner issued a finding and
award.
Subsequent to that Oct. 3, 2005 finding and award, the
Bankruptcy Court issued relief from the automatic stay in the
Raymark bankruptcy case. Thereafter, on Sept. 29, 2006, the
commissioner issued a new finding and award ordering Raymark to
pay "all the chapter 568 benefits noted in the Oct. 3, 2005
finding and award."
On Oct. 25, 2006, the commissioner issued an order to the fund
for payment of the benefits under the Oct. 3, 2005 finding and
award.
The fund appealed to the board on Nov. 13, 2006. National Union
Fire Insurance Co., a defendant and appellee in this case, filed
a motion to dismiss the appeal on Dec. 5, 2006, claiming that
the fund was required to appeal to the board within 20 days of
the Oct. 3, 2005 finding and award.
The board dismissed the appeal for lack of subject matter
jurisdiction, holding that the appeal was filed late and that a
motion to dismiss for lack of subject matter jurisdiction may be
filed at any time. The fund appealed to this court from that
dismissal.
The decision of the workers' compensation review board was
reversed and the case was remanded for further proceedings.
Christopher Meisenkothen, Esq., represented Mrs. Stec.
David J. Weil, Esq., represented National Union Fire Insurance
Company.
ASBESTOS LITIGATION: N.Y. Court Upholds Ruling in E.W. Tompkins
----------------------------------------------------------------
The Supreme Court, Appellate Division, Third Department, New
York, upheld an asbestos-related ruling of the Supreme Court,
Albany County, in the case styled In the Matter of E.W. Tompkins
Company, Inc., Appellant v. State University of New York et al.,
Respondents.
Judges Thomas E. Mercure, Robert S. Rose, John A. Lahtinen,
Bernard J. Malone Jr., and E. Michael Kavanagh entered judgment
in the case on April 23, 2009.
The Supreme Court, Albany County, dismissed E.W. Tompkins
Company, Inc.'s application to review a determination of State
University of New York rejecting Tompkins' bid for performance
of work on a public construction project.
In January 2008, SUNY advertised for bids on a project involving
the upgrade of the heating and cooling plant at its University
at Albany campus. The work included asbestos abatement,
demolition of parts of the existing system, installation of new
equipment, new piping and extensive electrical work.
Tompkins submitted its bid for the project on Feb. 5, 2008.
Randall Olocki, SUNY's Associate Director of Architecture,
Engineering and Construction Management, sent a letter to
Tompkins requesting additional information with respect to the
three projects that Tompkins listed in its bid as evidence that
it had the requisite prior work experience, and petitioner
timely responded.
Thereafter, although Tompkins was the lowest bidder on the
project, Mr. Olocki informed it in writing that the contract had
been awarded to another contractor, Postler & Jaeckle
Corporation, because the evaluation committee found Tompkins'
bid and subsequent clarification to be "non-responsive."
The Supreme Court concluded that SUNY had a reasonable basis to
conclude that Tompkins' bid was unresponsive and dismissed its
petition.
The Appellate Court had considered Tompkins' remaining
contentions and found them either unpreserved or unpersuasive.
Couch White, L.L.P. in Albany, N.Y. (Jeremy M. Smith, Esq., of
counsel), represented Tompkins.
Andrew M. Cuomo, Attorney General, in Albany, N.Y. (Owen Demuth,
Esq., of counsel), represented SUNY.
ASBESTOS LITIGATION: 29 New Cases Filed in Ill. From June 8 - 12
----------------------------------------------------------------
During the week of June 8, 2009 through June 12, 2009, about 29
new asbestos-related lawsuits were filed in Madison County
Circuit Court, Ill., The Madison St. Clair Record reports.
These cases are:
-- (Case No. 09-L-611) Linda Barrier of Colorado claims her
deceased husband, James L. Barrier, developed lung cancer
after his work as a mechanic, industrial equipment repairman
and rental property renovator. Robert Phillips, Esq., Perry
J. Browder, Esq., and Rosalind M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., represent Mrs. Barrier.
-- (Case No. 09-L-617) Patricia Blundell of Texas claims her
deceased husband, Jimmie Blundell, developed mesothelioma
after his work as a carpenter, roofer and factory worker.
Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind
M. Robertson, Esq., of SimmonsCooper in East Alton, Ill.,
represent Mrs. Blundell.
-- (Case No. 09-L-599) Norma Briesacher of Illinois claims her
deceased husband, Robert Briesacher, developed lung cancer
after his work as a supervisor and delivery driver. Robert
Phillips, Esq., Perry J. Browder, Esq., and Rosalind M.
Robertson, Esq., of SimmonsCooper in East Alton, Ill.,
represent Mrs. Briesacher.
-- (Case No. 09-L-591) Jackie Ray Casteel of Illinois, a derrick
hand and motorman in an oilfield, claims asbestosis. Patricia
S. Murphy, Esq., of Murphy Law Office in Energy, Ill.,
represents Mr. Casteel.
-- (Case No. 09-L-624) Cheryl Copeland of Illinois claims her
deceased husband, Herman Copeland, developed mesothelioma
after his work as a mechanic and carpenter. Amy E. Garrett,
Esq., and W. Brent Copple, Esq., of SimmonsCooper in East
Alton, Ill., represent Mrs. Copeland.
-- (Case No. 09-L-618) Joyce Corbyn claims her deceased husband,
George Corbyn, developed mesothelioma after his work as a
carpenter. Robert Phillips, Esq., Perry J. Browder, Esq., and
Rosalind M. Robertson, Esq., of SimmonsCooper in East Alton,
Ill., represent Mrs. Corbyn.
-- (Case No. 09-L-590) John Robert Cox of Illinois, a roughneck
and driller on the oilfield, claims asbestosis. Patricia S.
Murphy, Esq., of Murphy Law Office in Energy, Ill.,
represents Mr. Cox.
-- (Case No. 09-L-593) Laura Dawes of Connecticut, a mail
sorter, assembly line worker and welder, claims mesothelioma.
Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind
M. Robertson, Esq., of SimmonsCooper in East Alton, Ill.,
represent Ms. Dawes.
-- (Case No. 09-L-597) Joseph DeMauro Sr. of Connecticut, an
apprentice carpenter, laborer, sweeper and painter, claims
lung cancer. Robert Phillips, Esq., Perry J. Browder, Esq.,
and Rosalind M. Robertson, Esq., of SimmonsCooper in East
Alton, Ill., represent Mr. DeMauro.
-- (Case No. 09-L-615) Donna Elliott, representative of the
heirs and estate of Shirley Elliott, claims Shirley Elliott
developed mesothelioma after her work at Cedar Village
Restaurant. Randy L. Gori, Esq., of Gori, Julian and
Associates in Alton, Ill., represents Ms. Elliott.
-- (Case No. 09-L-589) George T. Engle of Illinois, a floor hand
on the oilfield, claims asbestosis. Patricia S. Murphy, Esq.,
of Murphy Law Office in Energy, Ill., represents Mr. Engle.
-- (Case No. 09-L-601) Maria Feola of Florida claims her
deceased husband, Amerigo Feola, developed mesothelioma after
his work as a concrete finisher, laborer and supervisor.
Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind
M. Robertson, Esq., of SimmonsCooper in East Alton, Ill.,
represent Mrs. Feola.
-- (Case No. 09-L-588) Leroy W. Gammon of Illinois, a derrick
hand, driller, pusher and chain hand, claims asbestosis.
Patricia S. Murphy, Esq., of Murphy Law Office in Energy,
Ill., represents Mr. Gammon.
-- (Case No. 09-L587) Ronald Garlick, of Illinois, a roughneck
and chain hand on the oilfield, claims asbsestosis. Patricia
S. Murphy, Esq., of Murphy Law Firm in Energy, Ill.,
represents Mr. Garlick.
-- (Case No. 09-L- 619) Glenna Goede of Missouri claims her
deceased husband, Gerald Goede, developed mesothelioma after
his work as a laborer, oiler, aircraft mechanic and engineer.
Robert Phillips, Esq., Perry J. Browder, Esq., and Rosalind
M. Robertson, Esq., of SimmonsCooper in East Alton, Ill.,
represent Mrs. Goede.
-- (Case No. 09-L-594) Dolores Hallee of Maine, a stacker
operator, claims lung cancer. Robert Phillips, Esq., Perry J.
Browder, Esq., and Rosalind M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., represent Ms. Hallee.
-- (Case No. 09-L-602) Marie B. Hawks of North Carolina claims
her deceased husband, William F. Hawks Sr., developed lung
cancer after his work as a concrete worker, laborer and
boiler mechanic. Robert Phillips, Esq., Perry J. Browder,
Esq., and Rosalind M. Robertson, Esq., of SimmonsCooper in
East Alton, Ill., represent Mrs. Hawks.
-- (Case No. 09-L-586) Clarence Steven Heil of Illinois, a
floorhand in the oilfield, claims asbestosis. Patricia S.
Murphy, Esq., of Murphy Law Office in Energy, Ill., will be
representing Mr. Heil.
-- (Case No. 09-L-629) Anna Hess claims she was secondarily
exposed to asbestos fibers through her husband, who worked as
a mechanic. Because of her exposure, Mrs. Hess says she
developed mesothelioma. Andrew O'Brien, Esq., Christopher
Thoron, Esq., Christina J. Nielson, Esq., Bartholomew J.
Baumstark, Esq., and Gerald J. FitzGerald, Esq., of O'Brien
Law Firm in St. Louis represent Mrs. Hess.
-- (Case No. 09-L-583) James W. Howell Jr. of Mississippi claims
mesothelioma on behalf of a deceased woman, Patricia A.
Tigner, who worked as a beautician at a local beauty shop for
35 years. Randy L. Gori, Esq., and Barry Julian, Esq., of
Gori, Julian and Associates in Edwardsville, Ill., represent
Mr. Howell.
-- (Case No. 09-L-583) Margaret L. Kohler of Washington claims
her deceased husband, Peter Kohler Sr., a pipefitter,
developed mesothelioma. Robert Phillips, Esq., Perry J.
Browder, Esq., and Rosalind M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., will be representing Mrs.
Kohler.
-- (Case No. 09-L-595) Engelbert Kraus of Michigan, a teacher,
counselor and YMCA instructor and maintenance worker, claims
mesothelioma. Robert Phillips, Esq., Perry J. Browder, Esq.,
Esq., and Rosalind M. Robertson, Esq., of SimmonsCooper in
East Alton, Ill., represent Mr. Kraus.
-- (Case No. 09-L-604) Justine Mellynchuk of Massachusetts
claims her friend, Gloria Bishop, developed mesothelioma
after her work as a waitress and insulator. Robert Phillips,
Esq., Perry J. Browder, Esq., and Rosalind M. Robertson,
Esq., of SimmonsCooper in East Alton, Ill., represent Ms.
Mellynchuk. Madison County Circuit Court case number: 09-L-
604.
-- (Case No. 09-L-610) Virginia Neely of Missouri claims her
deceased husband, Roy Neely, developed pleural plaques after
his work as a laborer. Robert Phillips, Esq., Perry J.
Browder, Esq., and Rosalind M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., represent Mrs. Neely.
-- (Case No. 09-L-596) Daniel Nichols of Tennessee, a laborer
and roofer, claims lung cancer. Robert Phillips, Esq., Perry
J. Browder, Esq., and Rosalind M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., represent Mr. Nichols.
-- (Case No. 09-L-616) Vergie Mae Overbee, a self-employed
grocer; a coil winder at Consolidated Radio; a laborer at
Zenith Radio; a laborer at Motorola; a laborer at General
Motors Corporation; a member of a labor gang at Kaiser
Aluminum; a packer and cleaner at Johnson and Johnson; and a
home construction worker, claims mesothelioma. Randy L. Gori,
Esq., of Gori, Julian and Associates in Edwardsville, Ill.,
represents Ms. Overbee.
-- (Case No. 09-L-585) Herschel Don Phillips of Illinois, a
derrick hand, floor hand and drilling foreman, claims
asbestosis. Patricia S. Murphy, Esq., of Murphy Law Office in
Energy, Ill., represents Mr. Phillips.
-- (Case No. 09-L-603) Barbara Senko of Arizona claims her
deceased husband, Robert Senko, developed mesothelioma after
his work as a marine machinist. Robert Phillips, Esq., Perry
J. Browder, Esq., and Rosalind M. Robertson, Esq., of
SimmonsCooper in East Alton, Ill., represent Mrs. Senko.
- (Case No. 09-L-584) Keivn T. Stucky of Illinois, a derrick
hand and driller in the oilfield, claims asbestosis. Patricia
S. Murphy, Esq., of Murphy Law Office in Energy, Ill.,
represents Mr. Stucky.
ASBESTOS LITIGATION: Cleanup at PHCC Could Start in August 2009
----------------------------------------------------------------
Asbestos abatement at the Patrick Henry Community College (PHCC)
at Purcellville, Va., will likely begin by August 2009,
Mesothelioma.com reports.
School officials are currently seeking bids from local firms to
remove the asbestos lurking the building. PHCC's board was
informed that the construction and asbestos abatement bids for
the renovations at the school's Learning Resource Center will be
in hand by June 25, 2009.
PHCC's Learning Resource Center is home to the college library.
In addition to asbestos removal, renovations will include the
installation of new lighting, brand new electrical systems and
wiring, new heating, and new air conditioners.
The total budget for the project including asbestos abatement is
US$2.4 million. The project at the Learning Resource Center will
take about 12 months to complete.
If there are problems with the incoming bids, that timetable
could be altered. While the asbestos removal and construction
occurs, students will be able to access books and other
resources via a temporary library that has been set up on the
other side of campus.
ASBESTOS LITIGATION: Taymor Fined $12,625 for Cleanup Violations
----------------------------------------------------------------
The Massachusetts Department of Environmental Protection
assessed Taymor Development, LLC of Dedham, Mass., a US$12,625
penalty for violating state asbestos removal regulations at a
demolished building site at 53 Montello Street in Brockton,
according to a MassDEP press release dated June 18, 2009.
The company will pay US$5,750 in penalties to the Commonwealth,
while the remaining US$6,875 will be suspended when the company
meets all the requirements in a consent order.
On June 25, 2008, a MassDEP inspection of the partially
demolished Montello commercial building revealed dry friable
asbestos-containing material in the boiler room area. The work
area was not sealed off and the ACM had not been wetted or
properly containerize as required by state law.
David Johnston, acting director of MassDEP's Southeast Regional
Office in Lakeville, said, "The regulations regarding the proper
handling and disposal of asbestos are very clear. Any company
involved in property development must act responsibly to ensure
the safety of the workers at the site and the safety of the
surrounding community."
Following the MassDEP inspection, Taymor Development hired an
asbestos-removal contractor to complete the ACM removal before
the building demolition could continue.
As part of a consent order with MassDEP, Taymor Development
submitted copies of all asbestos-containing waste material
receipts, results of final air clearances and visual inspection
documentation as it pertains to the final asbestos cleanup.
ASBESTOS LITIGATION: N.H. Local Charged for Disposal Violations
----------------------------------------------------------------
New Hampshire Attorney General Kelly A. Ayotte and Special
Agent-in-Charge Michael Hubbard of the U.S. Environmental
Protection Agency's Criminal Investigation Division announce
that, on June 22, 2009, the Cheshire County Grand Jury returned
two indictments against Lourdes Ramirez-Crusellas of Keene,
N.H., for violations of New Hampshire's Asbestos Control and
Management laws, according to an New Hampshire AG press release
dated June 23, 2009.
The indictments relate to the State's allegations that Ms.
Ramirez-Crusellas illegally disposed of asbestos containing
waste material from a renovation project at her residence in
Keene. Each indictment charges Ms. Ramirez-Crusellas with a
Class B felony.
The indictments are the result of a cooperative investigation
involving the New Hampshire Attorney General's Office, the U.S.
Environmental Protection Agency's Criminal Investigation
Division, the Keene Police Department and the New Hampshire
Department of Environmental Services.
Attorney General Ayotte said, "The improper disposal of asbestos
creates a significant health risk to the people who live or work
in the immediate area of the disposal. Strict enforcement of the
laws regulating the safe handling of asbestos is necessary to
protect the residents of our state."
Ms. Ramirez-Crusellas' arraignment is scheduled for July 1, 2009
at the Cheshire County Superior Court.
ASBESTOS LITIGATION: Northern Hotel Slated for Asbestos Cleanup
----------------------------------------------------------------
The historic Northern Hotel in Billings, Mont., which is under
new ownership, is earmarked for asbestos cleanup, the
Mesothelioma & Asbestos Awareness Center reports.
New owners, brothers Mike and Chris Nelson, are hoping to win
back former customers and restore the hotel's former prestige.
The brothers are planning a renovation project that will update
the Northern into a three-star hotel and restaurant that will be
in direct competition with the nearby Crowne Plaza Hotel. The
10-story hotel is 70 years old.
One of the first problems the Nelsons will need to tackle is the
asbestos problem.
Two-foot-wide plastic tubes were found throughout the lobby of
the hotel. The purpose of the tubes was to promote proper air
flow into the sealed off areas where asbestos removal was taking
place. Once the asbestos has been removed from the building the
real work can begin.
Workers hope to start transforming the hotel into a sleek,
simple, Bauhaus-style hotel. The Nelson brothers hope to open
the hotel by 2011.
ASBESTOS LITIGATION: Deena Products Site in Ky. Set for Cleanup
----------------------------------------------------------------
The Energy and Environment Cabinet's Division of Waste
Management is working to remove asbestos from a demolition site,
which was a former electroplating facility previously known as
Deena Products, Lex18.com reports.
The property is located on KY 51 North, just outside of
Arlington in Carlisle County, Ky.
The Company ceased operations in the 1980s. Buildings left on
the property from the previous operation were recently scrapped
for metals recovery and were partially demolished, leaving a
large volume of building materials and demolition debris
throughout the property.
Officials say testing of the materials and debris indicates that
asbestos is present in some of the materials. The division is
conducting the remediation activities in accordance with its
statutory authority to address environmental emergencies because
of the large volume of asbestos-contaminated materials present
at the site and because there is currently unrestricted access
to the property.
This action allows the division to contract with a certified
asbestos abatement contractor outside the normal state
procurement process, to quickly and effectively remove the ACM,
properly dispose of the material, and test the property to
confirm the materials have been removed.
Tony Hatton, director of the division, said, "The division is
currently conducting initial planning for the project and the
cleanup contractor is expected to mobilize to the site the week
of June 29. Agency staff will be coordinating the emergency
cleanup efforts and working closely with local officials to both
ensure the protection of public health and that the material is
disposed of safely."
ASBESTOS LITIGATION: Two Thieves Snatch Lathan's Asbestos Payout
----------------------------------------------------------------
Two thieves who had snatched a portion of Stephen Lathan's
GBP2,000 asbestos payout have been jailed, Gazette Live reports.
The 47-year-old Mr. Lathan received the payout from legal claim
over the death of his father from asbestos-related illness.
Two days after Mr. Lathan got the cash, neighbors John Eeles and
Martin Spooner, who lived with Mr. Lathan at a "halfway house"
in Stockton, England, came into his flat when he was in bed ill.
Mr. Spooner lunged on top of Mr. Lathan and pinned him down
while Mr. Eeles held his feet, Teesside Crown Court heard on
June 21, 2009. Prosecutor Sarah Mallet said that Mr. Spooner
searched Mr. Lathan's pockets and they took about GBP415.
Then for no apparent reason, Mr. Spooner punched Mr. Lathan
"forcefully and repeatedly" in the face. They left him bleeding
and dizzy with two black eyes.
Mr. Eeles, of no fixed address, and Mr. Spooner, of Dent Street,
Hartlepool, both 26 years old, admitted theft. Mr. Spooner
pleaded guilty to assaulting Mr. Lathan causing actual bodily
harm.
Paul Cleasby, defending Mr. Spooner, said he acted out of
character and regretted letting temptation get the better of
him. He said life traumas had led Mr. Spooner to alcohol and
substance abuse and a career of petty theft.
Catherine Fagan, for Mr. Eeles, said he too expressed remorse,
needed help and could now mend his ways after becoming a dad.
Judge Les Spittle said he would not suspend prison sentences on
the pair, telling them, "It hasn't worked in the past. You've
had your opportunities. They’ve run out." He jailed them for
nine months each for the theft, plus nine months for the assault
in Mr. Spooner's case.
ASBESTOS LITIGATION: Asbestos Found at Union Pacific's Work Site
----------------------------------------------------------------
The presence of asbestos mixed with soil along the railroad
tracks leading to the Port of Redwood City, Calif., has forced
Union Pacific Corporation to stop a maintenance project until it
can clean up the site, Trading Markets reports.
The delay in the track rehabilitation derailed a planned Redwood
City stop for a special Disney train promoting the upcoming
movie "Disney's A Christmas Carol."
Disney decided to move the train's Bay Area stop to Oakland,
Calif., because the asbestos issue prevented the railroad from
finishing the Redwood City track in time.
Railroad workers discovered the asbestos as they were replacing
portions of the track and laying down new bedrock near the
intersection of Seaport Boulevard and Blomquist Street, said
Union Pacific spokeswoman Zoe Richmond.
The railroad put up bright orange fencing and warning signs
while it figures out how to clean up the potentially hazardous
fibers. Ms. Richmond said the company is not yet sure when that
will happen. She said Union Pacific discovered the asbestos
within the past two weeks and stopped work immediately.
The California Division of Occupational Safety and Health got a
complaint earlier, on May 19, 2009 from a Union Pacific employee
about the asbestos contamination, Cal/OSHA spokesman Dean Fryer
said. The agency sent an inspector out to the site on May 28,
2009, Mr. Fryer said.
Cal/OSHA has not yet opened a full investigation into the
incident but is "keeping in contact with (Union Pacific) to see
how it moves forward," Mr. Fryer said.
Ms. Richmond said the Company used to transport asbestos-
containing products for one of its industrial customers near the
Port of Redwood City. She said some of those materials may have
fallen out of the rail cars and into the soil.
Railroad brakes and other parts once contained asbestos, but Mr.
Richmond said she doubted the trains would have shed asbestos
into the soil.
Another agency that deals with asbestos issues, the Bay Area Air
Quality Management District, sent an inspector out to the site
on June 19, 2009 after The Daily News inquired about the
contamination.
ASBESTOS LITIGATION: Ross County to Clear Hazard from Courthouse
----------------------------------------------------------------
Commissioners propose the removal of asbestos in the old
basement of the Ross County Courthouse in Ross County, Ohio, the
Chilicothe Gazette reports.
Prosecutor Mike Ater told commissioners that in order to declare
the clean up an emergency; they had to have a minimum of three
bids. Right now, commissioners have two bids.
Commissioner Jim Caldwell said there is no immediate health
problem, but they want to get it cleaned up as quickly as
possible. Until they do the affected section of the basement, it
continues to be blocked off.
ASBESTOS LITIGATION: Asbestos Discovered at Homer Middle School
----------------------------------------------------------------
The Homer Middle School in Homer, Alaska, contains asbestos, in
which its removal would make up for about half of the boiler
replacement cost, Mesothelioma.com reports.
One city official said that another US$20,000 will go toward
removal of the old boiler.
Over a decade ago, the Homer City Council purchased a 4.3 acre
tract of land with a 9,000 square-foot building. The cost was
unbelievably low, and the Homer Middle School purchase only cost
the city council one dollar.
Now, the city council is regretting their decision. The city of
Homer loses US$100,000 each year due to the school's utility
costs. The aging building contains a boiler that is in need of
expensive repairs. The boiler was manufactured in 1948, and has
parts from the early 1960s. The estimated cost to replace the
boiler is US$150,000.
City officials say that until the money can be raised, they may
have to install a small boiler for the school as a temporary
measure.
One official told reporters, "The problem is [the building is]
really old and it doesn't meet a lot of today's building codes.
As long as it's still used for school purposes those things
don't have to be met, but if we changed the purpose, then we'd
have to bring it up to code. It's not a winning proposition
financially and if the boiler breaks down in the middle of
winter and we can't fix it, then that building suddenly becomes
a demolition project."
ASBESTOS LITIGATION: Probe Over Roanoke School Hazard Commences
----------------------------------------------------------------
Virginia state officials launched an investigation into a
renovation at the Hunt Park Elementary School in Roanoke, Va.,
as workers tearing out the carpet disturbed asbestos material,
The Roanoke Times reports.
A compliance officer for the Virginia Department of Labor and
Industry showed up at the school o19, 2009 and recommended that
the school system hire a contractor licensed to dispose of
asbestos rather than relying on school employees, said Curt
Baker, the school system's deputy superintendent for operations.
Work stopped. A truck full of old carpet bound for a landfill
turned around and returned the carpet to the school for proper
disposal.
On June 22, 2009, the school system's contractor, Western
Environmental, filed a building permit with the city indicating
its intent to remove floor tiles throughout the school. The
permit indicates that the project will cost US$45,000.
Jennifer Wester, a spokeswoman for the Department of Labor and
Industry, said the officer likely showed up at the school in
response to "a complaint or a referral."
State officials will study whether the Roanoke school system
obeyed all of the necessary regulations. That investigation
could last up to six months, Ms. Wester said.
Roanoke Building Commissioner Jeff Shawver said that people in
charge of remodeling projects should obtain a permit before
tearing up carpet in older buildings, because it is likely that
their floor tiles contain asbestos. If tests reveal asbestos, it
must be removed by licensed personnel.
School officials have followed the advice of the state
compliance officer, who will continue to oversee the project at
Hurt Park, Mr. Baker said. He added that school employees who
may have been exposed to asbestos will get medical attention.
ASBESTOS LITIGATION: Abatement at Bridgeview Elementary Ongoing
----------------------------------------------------------------
The removal of asbestos at Bridgeview Elementary School in South
Charleston, W.Va., is ongoing, wvgazette.com reports.
Contractors who removed asbestos from the school on June 22,
2009 worked on one of the school system's many summertime
asbestos-abatement projects, according to county maintenance
director Terry Hollandsworth.
Each summer, school officials contract with workers to remove
asbestos from about 85,000 square feet of space inside several
Kanawha County schools, Mr. Hollandsworth said. Last summer,
contractors worked on about 100,000 square feet.
Mr. Hollandsworth said, "It's mostly floor tiles, and we do a
little bit of ceiling work as well. And we're removing the
asbestos chalkboards while we're there, too."
Once students are home for the summer, contracted workers tackle
projects at usually the oldest schools most in need of asbestos
abatement.
Mr. Hollandsworth added, "We hire contractors to come in and do
the asbestos abatement, and they have to be licensed and
certified. Asbestos abatement is heavily regulated." He added
that after a project is complete, county maintenance crews will
test the school's air quality to make sure it's safe.
ASBESTOS LITIGATION: Asbestos Found in Rubbish Bins in Melbourne
----------------------------------------------------------------
Asbestos tiles were disposed in household rubbish bins then left
in a street in the suburb of Preston, Melbourne, Australia, the
Herald Sun reports.
Preston resident Toby Wallace was one of six householders who
discovered their bins filled with the asbestos. Darebin Council
arranged for the removal of the contaminated bins by a licensed
asbestos contractor.
Acting Darebin Mayor Vince Fontana said it was disappointing to
see asbestos dumped illegally.
"The presence of dumped bins containing asbestos was reported to
the council on June 17 and council staff went to investigate the
same day," Councilor Fontana said.
ASBESTOS LITIGATION: Appellate Court Upholds Ruling in AGCO Case
----------------------------------------------------------------
The Supreme Court, Appellate Division, First Department, New
York, affirmed the rulings of the Supreme Court, New York
County, which denied summary judgment motions filed by
defendants in litigation filed by AGCO Corporation.
The case is styled AGCO Corporation, Plaintiff v. Northrop
Grumman Space & Mission Systems Corporation, et al., Defendants-
Respondents, LucasVarity Automotive Holding Company, et al.,
Defendants-Appellants.
Judges Luis A. Gonzalez, Angela M. Mazzarelli, David B. Saxe,
Karla Moskowitz, and Rosalyn H. Richter entered judgment in the
case on April 23, 2009.
The trial court, on June 12, 2008, denied defendants' motions
for summary judgment. On June 28, 2008, the trial court found
that any indemnification obligations to AGCO would be owed by
the TRW defendants rather than by the Northrop Grumman
defendants. The rulings were affirmed by the Appellate Court.
In the Master Purchase Agreement at issue, which is governed by
Delaware law, defendant TRW agreed to assume all "Automotive
Liabilities," which are defined as "all Liabilities arising
primarily from the conduct of the Automotive Business ...
including ... any such Liabilities arising out of or related to
asbestos-related product liability Claims or Liabilities."
Weinstein Tippetts & Little LLP in Houston (David R. Tippetts,
Esq., of counsel) represented appellants.
Hunton & Williams LLP in Atlanta (Matthew J. Calvert, Esq., of
counsel) represented respondents.
ASBESTOS LITIGATION: Texas Court Issues Split Ruling in La Joya
----------------------------------------------------------------
The Court of Appeals of Texas, Corpus Christi-Edinburg, issued
split rulings in the case styled La Joya Independent School
District, Appellant v. Bio-Tech Solutions, Inc., Appellee.
Judges Linda Reyna Yanez, Rodriguez, and Garza entered judgment
in Case No. 13-07-00484-CV on April 23, 2009.
In this interlocutory appeal, La Joya Independent School
District appealed from the 275th District Court of Hidalgo
County, Tex.'s order denying its plea to the jurisdiction in a
suit filed by Bio-Tech Solutions, Inc.
In a single issue, the District contended that the trial court
erred in denying its plea to the jurisdiction. The Appeal Court
affirmed the trial court's denial of the District's plea to the
jurisdiction. However, it also held that the District's waiver
of immunity was limited to the damages that it affirmatively
sought in its counterclaim and third-party petition.
Accordingly, the Appeal Court modified the trial court's order
denying the District's plea to the jurisdiction so that it
reflected such a limited waiver of sovereign immunity by the
District, and as modified, the Appeal Court affirmed.
Bio-Tech asserted claims for breach of contract, quantum meruit,
and promissory estoppel.
In June 2004, Bio-Tech was engaged in a mold-remediation project
for the District at a middle school. Later that month, severe
rains and flooding caused damage to the school's ceilings,
floors, and walls, resulting in the exposure of asbestos in
ceiling and floor tiles.
Bobby Garcia, president of Bio-Tech, testified that he was
approached by Ricardo Vela, Assistant Superintendent for
Administration and Finance for the District, to undertake
asbestos removal and reconstruction of the building.
ASBESTOS LITIGATION: Hardie Mulls Transferring Base to Ireland
----------------------------------------------------------------
James Hardie Industries N.V., on June 24, 2009, announced that
its directors have determined to seek shareholder approval for a
two-stage plan to transform the Company into a Societas
Europaea, a relatively new form of European corporation (Stage
1), and then move its corporate domicile from The Netherlands to
Ireland (Stage 2), according to a Company press release dated
June 24, 2009.
The Company has been reviewing its corporate domicile for some
time and resolving this issue is an important priority. Hardie
Chairman, Michael Hammes, set out the primary factors that have
been driving this review.
"Importantly, the Proposal will not change the overall
commitment of James Hardie to make contributions to the Asbestos
Injuries Compensation Fund (AICF) under the Amended and Restated
Final Funding Agreement (AFFA)," said Hardie's CEO, Louis Gries.
However, if a contribution is due to the AICF in the Company's
2011 financial year, which is not yet known, the costs
associated with the Proposal and with the transfer of the
intellectual property will most likely reduce the amount of the
Company's contribution in that year.
The capacity of the AICF to satisfy claims is linked to the
long-term financial success of Hardie, especially the Company's
ability to generate net operating cash flow.
Implementing the Proposal is expected to have medium and long-
term benefits for the AICF, as the Company's Irish domicile is
anticipated to result in reduced tax payments relative to taxes
that would be payable if the company remained domiciled in The
Netherlands and the intellectual property and treasury and
finance operations remained in The Netherlands after Dec. 31,
2010 following the expiry of the Financial Risk Reserve regime.
Based in Amsterdam, The Netherlands, James Hardie Industries
N.V. uses cellulose-reinforced fiber cement to create products
for residential and commercial construction, including siding
(Hardiplank), external cladding, walls, fencing, and roofing.
The Company also makes fiber-reinforced concrete (FRC) pipe
through its Hardie Pipe business.
ASBESTOS LITIGATION: Kubota Cites JPY200M for Claims at March 31
----------------------------------------------------------------
Kubota Corporation, for the year ended March 31, 2009, donated
JPY200 million as asbestos-related contributions, according to
the Company's annual report filed with the Securities and
Exchange Commission on June 24, 2009.
Until 1995, the Company's plant in Amagasaki, Hyogo Prefecture,
which is now a company office, had produced products containing
asbestos. In April 2005, the Company was advised that some
residents who lived near the former plant suffered from
mesothelioma.
The Company announced its intention in June 2005 to act
seriously and faithfully concerning various issues of the health
hazard of asbestos from the viewpoint of corporate social
responsibility (CSR) as a company that had once manufactured
products containing asbestos for a long time.
According to the Company's basic policy, the Company started the
program of consolation payments to patients with mesothelioma
who lived near the former plant and to the families of residents
who died from mesothelioma. In April 2006, the Company decided
to establish the relief payment system in place of the
consolation payment system and make additional payment to the
residents to whom consolation payment were eligible to be paid
or payable.
After the Company established its internal policies and
procedures of relief payment system, the Company has received
claims for relief payments from 198 residents and paid or
accrued relief payments to 178 of those residents after
carefully reviewing those claims as of March 31, 2009.
The cumulative number of current and former employees who are
eligible for compensation in accordance with the Company's
internal policies that are not required by law is 152 as of the
end of March 2007, 160 as of the end of March 2008, and 162 as
of the end of March 2009.
In August 2006, the Company announced that the Company would
provide a total donation of JPY1.2 billion to Hyogo College of
Medicine made over 10 years and JPY500 million to Osaka Medical
Center for Cancer and Cardiovascular Diseases over five years.
During the year ended March 31, 2007, the Company accounted for
JPY735 million (US$7.5 million) of the special contribution as a
lump sum expense, which is imposed based on the New Asbestos Law
(Law for the Relief of Patients Suffering from Asbestos-Related
Diseases) during the four-year period commencing on April 1,
2007.
Osaka, Japan-based Kubota Corporation (Kabushiki Kaisha Kubota)
makes farm equipment, pipes for water supply and sewage systems,
environmental control plants, and industrial castings. The
Company also provides credit services, which finance sales of
equipment by dealers, for the purpose of enhancing sales of
equipment to individual customers.
ASBESTOS LITIGATION: JPY1.15B Spent for Kubota Cases at March 31
----------------------------------------------------------------
Kubota Corporation, during the year ended March 31, 2009,
expended JPY1.155 billion (US$11,786,000) for asbestos-related
claims, according to the Company's annual report, on Form 20-F,
filed with the Securities and Exchange Commission on June 24,
2009.
Of the JPY1.155 billion (US$11,786,000), JPY876 million
(US$8,939,000) represented expenses relating to the payment for
the relief payment system established in April 2006.
The Company expenses the payments for the health hazard of
asbestos based on the Company's policies and procedures. The
expenses include payments to certain residents who lived near
the Company's plant and current and former employees, and a
special contribution in accordance with the New Asbestos Law
(Law for the Relief of Patients Suffering from Asbestos-Related
Diseases).
Since the middle of the year 2005, with the asbestos issue
becoming an object of public concern in Japan, five asbestos-
related lawsuits were filed against the Company, or the Japanese
Government and asbestos-related companies including the Company
before the year ended March 31, 2009 and the aggregate amount of
claims is JPY8.373 billion (US$85,439,000).
The two lawsuits concerning an aggregate 212 construction
workers who suffered from asbestos-related diseases consist
mostly of the aggregate amount of five claims and defendants of
these two lawsuits are the Japanese Government and 46 asbestos-
related companies including the Company.
Osaka, Japan-based Kubota Corporation (Kabushiki Kaisha Kubota)
makes farm equipment, pipes for water supply and sewage systems,
environmental control plants, and industrial castings. The
Company also provides credit services, which finance sales of
equipment by dealers, for the purpose of enhancing sales of
equipment to individual customers.
ASBESTOS LITIGATION: Grupo Mexico Raises Asarco LLC Bid to $3.1B
----------------------------------------------------------------
A lawyer for Grupo Mexico S.A.B. de C.V., on June 24, 2009, said
that Grupo Mexico increased its bid to US$3.1 billion to regain
control of its bankrupt U.S. unit, Asarco LLC, Reuters reports.
In a June 23, 2009 court filing, Grupo Mexico increased its cash
offer to US$1.46 billion, up from US$1.3 billion previously, and
increased a note to cover asbestos clean-up claims to US$280
million from US$250 million, Jorge Lazalde told Reuters.
Combined with US$1.4 billion Asarco has in cash, the total offer
stands at around US$3.1 billion, Mr. Lazalde said.
The revised offer was made as a response to a rival bid from
Indian company Sterlite Industries, a subsidiary of London-based
mining firm Vedanta Resources PLC.
Sterlite had increased the note portion of its bid for Asarco,
valued at between US$2 billion and US$3 billion including
liabilities, an increase from a previous offer of US$1.7 billion
in cash and notes.
In 2005, Asarco filed for bankruptcy amid more than US$1 billion
in environmental damage and asbestos claims and Grupo Mexico
lost control of the Company's board due to the bankruptcy.
Investment fund Harbinger Capital Partners, one of Asarco's
largest bondholders unsatisfied with both the offers from Grupo
Mexico and Sterlite, joined the battle in May 2009 for the
struggling copper miner with its own US$500 million
reorganization bid.
ASBESTOS LITIGATION: Insurer to Pay $16M to Resolve Pfizer Cases
----------------------------------------------------------------
Pfizer Inc.'s Quigley subsidiary said OneBeacon Insurance Co.
agreed to pay more than US$16 million to resolve a dispute over
asbestos liability, Bloomberg reports.
Quigley has been in bankruptcy since 2004. A Pfizer unit since
1968, Quigley no longer operates and it used to manufacture
asbestos-containing heat shields.
The case is styled In re Quigley Co., 04-15739, U.S. Bankruptcy
Court, Southern District of New York (Manhattan).
On June 23, 2009, Quigley sought approval for the settlement in
documents filed in U.S. Bankruptcy Court in Manhattan. The
accord would end a dispute over whether OneBeacon must pay for
asbestos-related claims following a 1998 settlement between the
companies.
OneBeacon's predecessor company, Employer's Surplus Lines
Insurance Co., issued policies to New York-based Pfizer. Under
the settlement, the Minnetonka, Minn.-based OneBeacon will pay
US$6.02 million to a trust for Quigley asbestos claims no later
than the seventh anniversary of the unit's exit from bankruptcy,
plus US$10.5 million to Pfizer in three installments during the
next five years.
Quigley won an extension on financing until August 2009 as it
prepares for a hearing to confirm a reorganization plan that
will pit the company against a group of asbestos victims.
ASBESTOS LITIGATION: Specter Urges USEPA to Remediate BoRit Site
----------------------------------------------------------------
In a letter dated June 11, 2009, Senator Arlen Specter (D-Pa.)
urged the U.S. Environmental Protection Agency to consider
complete removal, destruction and/or recycling of the asbestos
at the BoRit site located in Ambler, Upper Dublin and Whitpain
townships in Pennsylvania, Montgomery Media reports.
Senator Specter referenced a petition with over 2,000
signatures, informing EPA national headquarters his constituents
believe there are better alternatives than capping the waste.
Senator Specter addressed the letter to Acting Associate
Administrator Joyce Frank of the EPA's Office of Congressional
and Intergovernmental Relations. He mentioned possible actions
the EPA could take as it enters the remediation stage at BoRit,
which was added to the EPA's National Superfund List in April
2009.
An EPA representative said the organization would respond to
Senator Specter's letter but could not specify when the response
would come. Senator Specter's letter came as a result of a
petition organized by Citizens for a Better Ambler (CBA).
The group began collecting signatures in May 2009, according to
CBA and Ambler council member Judy Baigis. She said, "You have
to do a lot of petitioning on many levels to get anyone's
attention. The letters have to keep going out to the top people.
We have inched our way up, rung by rung by rung."
Senator Specter's letter was sent just days before strong
weather affected the area on June 13, 2009 and June 14, 2009,
raising concerns about the impact on the BoRit site.
Ambler resident and Community Advisory Group (CAG) member Andrew
Salvatore visited the BoRit site on the evening of June 14, 2009
and he said he observed what appeared to be off-site migration
and disturbance of asbestos waste. He compiled his observations
and photos of the site into a report he gave to the EPA and the
CAG.
Shortly after the storms, the EPA posted an update on its BoRit
Web site. The EPA wrote while the weather did test the site,
there was no impact on the Phase I section of the project, which
is located along the Wissahickon Creek.
Eduardo Rovira, EPA's on-site coordinator, said, "We don't think
that any asbestos migrated off site. When we first came in, we
put down fabric and then 6 to 8 inches of gravel. There was a
good buffer between the waste and the surface."
However, Mr. Rovira said there is a possibility off-site
migration occurred at other sections of the site, such as the
Rose Valley area, where the EPA has yet to work and stabilize
the soil.
*********
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 research,
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
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel S. Senorin, Stephanie T. Umacob, Gracele D.
Canilao, and Peter A. Chapman, Editors.
Copyright 2009. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without
prior written permission of the publishers.
Information contained herein is obtained from sources believed
to be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
* * * End of Transmission * * *