/raid1/www/Hosts/bankrupt/CAR_Public/090918.mbx
C L A S S A C T I O N R E P O R T E R
Friday, September 18, 2009, Vol. 11, No. 185
Headlines
ABC BUS: SDNY Reinstates Misrepresented Wheelchair Lift Suit
ACCURAY INC: Faces Securities Suit in Calif. Filed in June 2009
ACCURAY INC: Faces Two Securities Lawsuits Pending in California
ANESIVA INC: Defends Stockholder Suit Over Arcion Merger in Del.
BAKER HUGHES: Defends Stockholder Suits Over BJ Services Merger
BAKER HUGHES: Faces Suit Over Merger with BJ Services in Texas
BARNES & NOBLE: "Hostetter" Certification Motion Due on Oct. 19
BARNES & NOBLE: "Minor" Suit v. Unit Over Wage Payments Pending
BEST BUY: "Anti-Price Matching Policy" Exposed in D. N.J. Lawsuit
BLUE CROSS BLUE SHIELD: Chiropractors' Complaint Now Available
LIGGETT GROUP: Settles Broward Co. Lifelong Smoker Case for $100K
MARVELL TECHNOLOGY: Nov. 6 Hearing Set for Securities Suit Deal
MILFORD WATER: Residents Sue After Boiling Water for 13 Days
PETER MADOFF: Lautenberg Foundation Can Sue Bernie's Brother
REMEC INC: Securities Suit Pretrial Conference Continued to 2010
RICON CORP: SDNY Reinstates Misrepresented Wheelchair Lift Suit
TWEEN BRANDS: Courts Denies Lead Plaintiff's Reconsideration Bid
TYCO INT'L: Litigation Continues with ADT Worldwide Dealers
WAL-MART STORES: Jury Trial in "Salvas" Case to Start on Oct. 5
WAL-MART STORES: Agreed to Settle "Savaglio" Suit on July 13
WAL-MART STORES: Paid $46 Million to Settle "Braun" Suit in Aug.
WAL-MART STORES: Appeal to "Braun/Hummel" Judgment Still Pending
WAL-MART STORES: Dukes Gender Discrimination Suit Still Pending
Asbestos Litigation
ASBESTOS UPDATE: Navistar Int'l. Still Subject to Exposure Cases
ASBESTOS UPDATE: Joy Global, Units Still Facing Exposure Actions
ASBESTOS UPDATE: J. C. Penney Has $45M A&E Liabilities at Aug. 1
ASBESTOS UPDATE: Ex-Cardiff City Player's Death Linked to Hazard
ASBESTOS UPDATE: Aussie Gov't. to Make Sure Hardie Upholds Compo
ASBESTOS UPDATE: Del. Church Accused of Breaching 7 Regulations
ASBESTOS UPDATE: Former BNSC Executive's Death Linked to Hazard
ASBESTOS UPDATE: 3 Contractors to Pay GBP15T for Disposal Breach
ASBESTOS UPDATE: Carillion Settles w/ Former Worker for GBP181T
ASBESTOS UPDATE: Ulverston Resident's Death Linked to Exposure
ASBESTOS UPDATE: California Wildfires Raises Concerns on Hazard
ASBESTOS UPDATE: J.A.D. Owner Pleads Guilty to Disposal Breaches
ASBESTOS UPDATE: PDG Records $11.6M Revenue Reduction at July 31
ASBESTOS UPDATE: Scapa Dryer Fabric's Move for New Trial Denied
ASBESTOS UPDATE: Fifth Circuit Upholds Dismissal in Exxon Action
ASBESTOS UPDATE: Duncan's Lawsuit v. 26 Firms Filed in Jefferson
ASBESTOS UPDATE: Robreno's Changes to MDL Docket Still Continue
ASBESTOS UPDATE: Six Lawsuits Filed in Madison During Aug. 24-28
ASBESTOS UPDATE: Hazard in Harborough to Cost Taxpayers GBP2 Mil.
ASBESTOS UPDATE: Sentencing in Desnoyers Conspiracy Case Delayed
ASBESTOS UPDATE: NSW Appeal Court Favors Stavar in Payout Claim
ASBESTOS UPDATE: Vasapollo Pleads Not Guilty to Bribery Charges
ASBESTOS UPDATE: Caningeraba Probed on Alleged Cleanup Breaches
ASBESTOS UPDATE: Harrogate Man's Death Linked to Hazard Exposure
ASBESTOS UPDATE: Trial in Phillips Lawsuit Scheduled for Nov. 30
ASBESTOS UPDATE: Norton Widow Sues Leicester Council for Damages
ASBESTOS UPDATE: Portsmouth Dock Worker's Death Linked to Hazard
ASBESTOS UPDATE: Five West Belfast Residences Slated for Cleanup
ASBESTOS UPDATE: Bodin's Action v. 17 Companies Filed on Sept. 2
ASBESTOS UPDATE: More Than $76T OK'd for Negus Building Cleanup
ASBESTOS UPDATE: Court Issues Split Ruling in Cavallaro Lawsuit
ASBESTOS UPDATE: Appeal Court Rules on Enos Compensation Action
*********
ABC BUS: SDNY Reinstates Misrepresented Wheelchair Lift Suit
------------------------------------------------------------
Fung Wah Bus Transportation, Inc. v. Ricon Corporation, et al.,
Case No. 08-cv-06481 (S.D.N.Y.) (Preska, J.), has been
reinstated. The lawsuit is a breach of contract action against
ABC Bus Inc. for selling buses equipped with wheelchair lifts
that do not comply with the Americans with Disabilities Act and
were manufactured by Los Angeles-based Ricon Corporation, a
subsidiary of global Wabtec, Inc. (NYSE: WAB).
The Class Action Reporter reported about the filing of the
lawsuit on July 24, 2008.
"Because of Ricon's and ABC's refusal to fix the problem
specifically identified by two government agencies with
jurisdiction over ADA issues, Fung Wah Bus Transportation really
had no choice but to bring the lawsuit. These companies' refusal
to do the right thing is particularly troubling since we believe
that ADA non-compliant chair lifts have been installed on tens of
thousands of buses operating in the United States," said Robert
Y. Lewis, Esq., of Freeman Lewis LLP, attorneys for plaintiff
based in New York City.
The Ricon wheelchair lifts installed in buses sold by ABC and
others have a platform that lifts a wheelchair and its disabled
rider from the ground to bus level. A portion of the floor of
the Ricon "Baylifts" in the buses purchased by plaintiff Fung Wah
Bus Transportation, based in New York City, is without side
barriers as required by the ADA to prevent the wheelchair from
rolling off the platform, despite assurances made by both Ricon
and ABC that the lifts were fully ADA compliant.
During an ADA compliance review of Fung Wah, the United States
Department of Justice noted the absence of the side barriers on
the Baylift. Fung Wah purchased a number of buses from ABC with
ADA non-compliant lifts between July 2005 and January 2007. After
learning of the defect, Fung Wah, at the direction of the DOJ,
asked both ABC and Ricon to fix or replace the lifts, but both
companies refused in breach of their express and implied
warranties. But on their websites both Ricon and ABC boast that
the lifts are fully ADA compliant.
Mr. Lewis' investigation reveals that the government has
determined that another style of Ricon lifts known as the
"Mirage", found on the buses of the Pueblo, Colorado, Transit
Authority, does not comply with the ADA for the same reason that
the Baylift is non-compliant.
Freeman Lewis LLP is a boutique law firm based in New York City
that specializes in representing clients in the resolution of
complex commercial and business disputes.
The Plaintiff is represented by:
Robert Yancy Lewis, Esq.
Jennifer Freeman, Esq.
Alexander Todd Linzer, Esq.
Freeman Lewis LLP
228 East 45th Street, 17th Floor
New York, NY 10017
Telephone: (212)-980-4082
Fax: (212)-980-4055
E-mail: rlewis@freemanlewis.com
jfreeman@freemanlewis.com
alinzer@freemanlewis.com
- and -
Julie Prag Vianale, Esq.
Vianale & Vianale LLP
5355 Town Center Road, Suite 801
Boca Raton, FL 33486
Telephone: 561-392-4750
Fax: 561-392-4775
E-mail: e-file@vianalelaw.com
Ricon Corporation is represented by:
Thomas Lee Allen, Esq.
Dianna Calaboyias Wyrick, Esq.
Reed Smith, LLP
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Telephone: (412) 288-3066
Fax: (412) 288-3063
E-mail: tallen@reedsmith.com
dwyrick@reedsmith.com
- and -
David Amir Kochman, Esq.
Reed Smith
599 Lexington Avenue
New York, NY 10022
Telephone: (212) 521-5400
Fax: (212) 521-5450
E-mail: dkochman@reedsmith.com
ABC Bus, Inc., is represented by:
Edward L Birnbaum, Esq.
Sharon Schweidel, Esq.
Herzfeld & Rubin, P.C.
40 Wall Street
New York, NY 10005
Telephone: 212-471-8540
Fax: 212-344-3333
E-mail: ebirnbaum@herzfeld-rubin.com
sschewidel@Herzfeld-rubin.com
ACCURAY INC: Faces Securities Suit in Calif. Filed in June 2009
---------------------------------------------------------------
Accuray Inc. faces a securities class action lawsuit filed on
July 22, 2009, in the U.S. District Court for the Northern
District of California.
The securities suit was filed against the company and certain of
its current and former directors and officers.
The complaint generally alleges that the company and the
individual defendants made false or misleading public statements
regarding its operations.
The plaintiff seeks unspecified monetary damages and other
relief.
No further details on the suit were disclosed in the company's
Sept. 8, 2009, Form 10-K filing with the U.S. Securities and
Exchange Commission for fiscal year ended June 27, 2009.
Accuray Inc. -- http://www.accuray.com/-- designs, develops and
sells the CyberKnife system, an image-guided robotic radiosurgery
system used for the treatment of solid tumors anywhere in the
body. The company is based in Sunnyvale, Calif.
ACCURAY INC: Faces Two Securities Lawsuits Pending in California
----------------------------------------------------------------
Accuray Inc. faces two securities class action lawsuits filed in
the U.S. District Court for the Northern District of California.
On August 7 and August 9, 2009, two complaints were filed against
the company and certain of its current and former directors and
officers.
The complaints generally allege that the company and the
individual defendants made false or misleading public statements
regarding its operations.
The plaintiffs seek unspecified monetary damages and other
relief, according to the company's Sept. 8, 2009, Form 10-K
filing with the U.S. Securities and Exchange Commission for
fiscal year ended June 27, 2009.
Accuray Inc. -- http://www.accuray.com/-- designs, develops and
sells the CyberKnife system, an image-guided robotic radiosurgery
system used for the treatment of solid tumors anywhere in the
body. The company is based in Sunnyvale, Calif.
ANESIVA INC: Defends Stockholder Suit Over Arcion Merger in Del.
----------------------------------------------------------------
Anesiva, Inc., and its directors intend to take all appropriate
actions to defend an amended derivative and class action
complaint in the Court of Chancery of the State of Delaware.
On March 19, 2009, Sheryl Gluck, an alleged stockholder, filed a
derivative complaint, purportedly on behalf of Anesiva against
the company, as a nominal defendant, Anesiva's chief executive
officer, certain members of Anesiva's board of directors and
certain stockholders of Anesiva affiliated with the directors
relating to the financing transaction Anesiva completed in
January 2009.
On Jan. 20, 2009, Anesiva entered into a securities purchase
agreement (the "Investor Agreement") with Sofinnova Venture
Partners VII, L.P., Alta California Partners III, L.P., Alta
Embarcadero Partners III, LLC, Alta Partners VIII, LP, CMEA
Ventures VII, L.P., CMEA Ventures VII (Parallel), L.P., InterWest
Partners VIII, LP, InterWest Investors VIII, LP, and InterWest
Investors Q VIII, LP, where Anesiva agreed to sell and issue
securities for a total principal amount of up to $7.0 million,
subject to the terms and conditions set forth in the Investor
Agreement. The complaint alleged, among other things, that the
defendants breached their fiduciary duties by causing Anesiva to
enter into the Investor Agreement.
On Sept. 8, 2009, an amended complaint was filed, which also
alleges, among other things, that the defendants breached their
fiduciary duties to the stockholders of Anesiva in connection
with the proposed merger of Arca Acquisition Corporation, a
wholly-owned subsidiary of Anesiva, and Arcion Therapeutics,
Inc., pursuant to that certain Agreement and Plan of Merger,
dated Aug. 4, 2009, among Anesiva, Arca and Arcion and, with
respect to only Articles V and IX of the agreement, each of the
Arcion stockholders listed on Schedule I thereto. The amended
complaint adds, among others, Arcion as a defendant to the suit.
The amended complaint seeks, among other things, to enjoin the
defendants from completing the Merger as currently contemplated.
The amended complaint is styled both as a derivative suit and as
a class action and seeks, in addition to the injunctive relief
noted, damages to certain of the Anesiva stockholders based on a
theory that the purchase price offered to such stockholders is
less than the value of their shares, according to the company's
Form 8-K filing with the U.S. Securities and Exchange Commission
dated Sept. 11, 2009.
Anesiva, Inc. -- http://www.anesiva.com/-- is a
biopharmaceutical company focused on the development and
commercialization of therapeutic treatments for pain management.
Its portfolio includes two products. Adlea, a long-acting, site-
specific, non-opioid analgesic, is being developed for moderate
to severe pain, and has completed multiple Phase II trials in
post-surgical, musculoskeletal and neuropathic pain and Phase III
trials in bunionectomy and total knee arthroplasty (TKA, or total
knee replacement surgery).
BAKER HUGHES: Defends Stockholder Suits Over BJ Services Merger
---------------------------------------------------------------
Baker Hughes Incorporated intends to defend three purported
stockholder class action lawsuits filed in the Court of Chancery
of the State of Delaware.
On Sept. 1, 2009, the lawsuits were filed in Delaware on behalf
of the public stockholders of BJ Services Company, a Delaware
corporation, with respect to the Agreement and Plan of Merger,
dated as of Aug. 30, 2009, among the Company, its wholly owned
subsidiary, BSA Acquisition LLC, a Delaware limited liability
company and BJ Services, whereby BJ Services will merge with and
into Merger Sub, with Merger Sub continuing as the surviving
entity after the Merger.
The lawsuits are:
-- Laborers Local 235 Benefit Fund v. Stewart, et al.,
-- The Booth Family Trust v. Huff, et al., and
-- Dugdale v. Huff, et al.
Each action names BJ Services, the current members of the BJ
Services Board of Directors and the company as defendants.
On Sept. 8, 2009, an additional purported stockholder class
action lawsuit was filed in the Delaware Chancery Court styled
Saratoga Advantage Trust-Energy & Basic Materials Portfolio v.
Huff, naming BJ Services, the current members of the BJ Services
Board, and the company as defendants.
In the actions the plaintiffs allege, among other things, that
the members of the BJ Services Board breached their fiduciary
duties by failing to properly value BJ Services, failing to take
steps to maximize the value of BJ Services to its public
stockholders, and avoiding a competitive bidding process.
The actions each allege that the company aided and abetted the
purported breaches by the BJ Services Board.
The plaintiffs in each lawsuit seek, among other things,
injunctive relief with respect to the Merger, according to the
company's Form 8-K filing with the U.S. Securities and Exchange
Commission dated Sept. 8, 2009.
Baker Hughes Incorporated -- http://www.bakerhughes.com/-- is
engaged in the oilfield services industry. The company is a
supplier of wellbore related products and technology services,
including products and services for drilling, formation
evaluation, completion and production and reservoir technology
and consulting to the worldwide oil and natural gas industry.
The company operates through two segments: the Drilling and
Evaluation segment, and the Completion and Production segment.
In April 2008, the company acquired two reservoir consulting
firms, Gaffney, Cline & Associates (GCA) and GeoMechanics
International (GMI).
BAKER HUGHES: Faces Suit Over Merger with BJ Services in Texas
--------------------------------------------------------------
Baker Hughes Incorporated faces a purported stockholder class
action lawsuit filed in the 80th Judicial District Court of
Harris County, Texas.
On Sept. 4, 2009, the lawsuit, Garden City Employees' Retirement
System v. BJ Services Company, et al., was filed in Texas, on
behalf of the public stockholders of BJ Services Company, a
Delaware corporation, with respect to the Agreement and Plan of
Merger, dated as of Aug. 30, 2009, among the company, its wholly
owned subsidiary, BSA Acquisition LLC, a Delaware limited
liability company, and BJ Services, whereby BJ Services will
merge with and into Merger Sub, with Merger Sub continuing as the
surviving entity after the Merger.
The action names BJ Services, the current members of the BJ
Services Board of Directors, and the company as defendants.
In the actions the plaintiffs allege, among other things, that
the members of the BJ Services Board breached their fiduciary
duties by failing to properly value BJ Services, failing to take
steps to maximize the value of BJ Services to its public
stockholders, and avoiding a competitive bidding process.
The actions each allege that the company aided and abetted the
purported breaches by the BJ Services Board.
The plaintiffs in each lawsuit seek, among other things,
injunctive relief with respect to the Merger, according to the
company's Form 8-K filing with the U.S. Securities and Exchange
Commission dated Sept. 11, 2009.
Baker Hughes Incorporated -- http://www.bakerhughes.com/-- is
engaged in the oilfield services industry. The company is a
supplier of wellbore related products and technology services,
including products and services for drilling, formation
evaluation, completion and production and reservoir technology
and consulting to the worldwide oil and natural gas industry.
The company operates through two segments: the Drilling and
Evaluation segment, and the Completion and Production segment.
In April 2008, the company acquired two reservoir consulting
firms, Gaffney, Cline & Associates (GCA) and GeoMechanics
International (GMI).
BARNES & NOBLE: "Hostetter" Certification Motion Due on Oct. 19
---------------------------------------------------------------
The plaintiffs' class certification motion in the complaint,
Hostetter v. Barnes & Noble Booksellers, Inc. et al., is due Oct.
19, 2009, according to Barnes & Noble, Inc.'s Sept. 10, 2009,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Aug. 1, 2009.
On Dec. 4, 2008, a purported class action complaint was filed
against Barnes & Noble Booksellers, Inc. in the Superior Court
for the State of California making these allegations against
defendants with respect to hourly managers and/or assistant
managers at Barnes & Noble stores located in the State of
California:
(1) failure to pay wages and overtime;
(2) failure to provide meal and/or rest breaks;
(3) waiting time penalties; and
(4) unfair competition.
The complaint contains no allegations concerning the number of
any such alleged violations or the amount of recovery sought on
behalf the purported class.
On March 4, 2009, Barnes and Noble filed an answer denying all
claims.
On March 5, 2009, Barnes and Noble removed this matter to federal
court.
Written discovery concerning purported class member wages, hours
worked, and other matters has commenced.
The Court has set a trial date of Aug. 10, 2010.
Barnes & Noble, Inc. -- http://www.barnesandnoble.com/-- is a
bookseller. The company's principal business is the sale of
trade books (generally hardcover and paperback consumer titles,
excluding educational textbooks and specialized religious
titles), mass-market paperbacks (such as mystery, romance,
science fiction and other fiction), children's books, bargain
books, magazines, gift, cafe products and services, music and
movies direct to customers. As of Jan. 31, 2009, the company
operated 778 bookstores and a Website. Of the 778 bookstores,
726 operate under the Barnes & Noble Booksellers trade name and
52 operate primarily under the B. Dalton Bookseller trade name.
BARNES & NOBLE: "Minor" Suit v. Unit Over Wage Payments Pending
----------------------------------------------------------------
A purported class-action complaint, Minor v. Barnes & Noble
Booksellers, Inc. et al., is still pending, according to Barnes &
Noble, Inc.'s Sept. 10, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Aug. 1,
2009.
On May 1, 2009, a purported class action complaint was filed
against Barnes & Noble Booksellers, Inc. in the Superior Court
for the State of California alleging wage payments by instruments
in a form that did not comply with the requirements of the
California Labor Code, allegedly resulting in impermissible wage
payment reductions and calling for imposition of statutory
penalties.
The complaint also seeks restitution of such allegedly unpaid
wages under California's unfair competition law, and an
injunction compelling compliance with the California Labor Code.
The complaint alleges two subclasses of 500 and 200 employees,
respectively (there may be overlap among the subclasses), but
contains no allegations concerning the number of alleged
violations or the amount of recovery sought on behalf of the
purported class.
On June 3, 2009, Barnes & Noble Booksellers filed an answer
denying all claims.
Barnes & Noble, Inc. -- http://www.barnesandnoble.com/-- is a
bookseller. The company's principal business is the sale of
trade books (generally hardcover and paperback consumer titles,
excluding educational textbooks and specialized religious
titles), mass-market paperbacks (such as mystery, romance,
science fiction and other fiction), children's books, bargain
books, magazines, gift, cafe products and services, music and
movies direct to customers. As of Jan. 31, 2009, the company
operated 778 bookstores and a Website. Of the 778 bookstores,
726 operate under the Barnes & Noble Booksellers trade name and
52 operate primarily under the B. Dalton Bookseller trade name.
BEST BUY: "Anti-Price Matching Policy" Exposed in D. N.J. Lawsuit
-----------------------------------------------------------------
Cheryl Armstrong at Courthouse News Service reports that Best Buy
cheats customers with a secret "anti-price matching policy" after
luring them in with a "price match guarantee," and teaches its
employees how to do it, according to a federal class action. The
class claims Best Buy teaches its workers "techniques for
erecting strategic barriers and denying price match requests."
Best Buy advertises its "price match guarantee" for its more than
1,800 stores and for merchandise bought through its Web site,
BestBuy.com. Its 2005 "price match guarantee" stated: "We'll
refund the price difference, plus an additional 10% of that
difference -- up to 30 days after your purchase . . . simply
bring in proof of a local retail competitor's price on the same
available brand and model, and we'll do the rest."
When Best Buy realized that the policy hurt profits, corporate
headquarters implemented a secret "anti-price match policy,"
according to the complaint. It taught its employees "techniques
for erecting strategic barriers and denying price match requests"
at its New York district facility and training store, gave
employees bonuses for denying price match requests, and soon was
denying "more than 100 price match request per store per week,"
the complaint states.
Best Buy allegedly trained workers to deny "customers' proper
price match requests" by using computer kiosks at the stores.
Computers at the kiosks have a tab marked BestBuy.com. Customers
who think they are searching for a product on the Best Buy Web
site, are sent to an "electronic page configured to look exactly
like BestBuy.com" that contains higher prices, the complaint
states. The "price match" therefore is phony and employee appears
to be backing up Best Buy's promise, according to the complaint.
A copy of the Complaint initiating DiSanto v. Best Buy Stores,
L.P., et al., docketed as Doc. 6629 in Case No. 33-av-00001 (D.
N.J.), is available at:
http://www.courthousenews.com/2009/09/16/BestBuy.pdf
The Plaintiff is represented by:
Gary S. Graifman, Esq.
Michael L. Braunstein, Esq.
KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C.
210 Summit Avenue
Montvale, NJ 07645
Telephone: (201) 391-7000
- and -
Michael Scott Green, Esq.
GREEN & PAGANO, LLP
522 Route 18
P.O. Box 428
East Brunswick, NJ 08816
Telephone: (732) 390-0480
BLUE CROSS BLUE SHIELD: Chiropractors' Complaint Now Available
--------------------------------------------------------------
As reported in the Class Action Reporter on Wed., Sept. 16, 2009,
Pomerantz Haudek Grossman & Gross LLP and its co-counsel Buttaci
& Leardi, LLC filed a class action lawsuit against the Blue Cross
Blue Shield Association and 22 leading BCBS insurers across the
country on behalf of a putative nationwide class of health care
providers, as well as the Pennsylvania Chiropractic Association,
the New York Chiropractic Council, and the Association of New
Jersey Chiropractors. The suit challenges the Defendants'
abusive practices in using post-payment audits and reviews, and
improper repayment demands, to pressure providers to repay
substantial sums that have previously properly been paid as
health insurance benefits for services provided to BCBS
subscribers.
A copy of the 155-page Complaint in Pennsylvania Chiropractic
Association, et al. v. Blue Cross Blue Shield Association, et
al., Case No. 09-cv-05619 (N.D. Ill.) (Kennelly, J.), is
available at:
http://www.courthousenews.com/2009/09/16/ChirosvBlue.pdf
The lawyers representing the Plaintiffs are:
Patrick V. Dahlstrom, Esq.
POMERANTZ HAUDEK GROSSMAN & GROSS LLP
10 South LaSalle Street, Suite 3505
Chicago, IL 60603
Telephone: 312.377.1181
Fax: 312.377.1184
- and -
D. Brian Hufford, Esq.
Robert J. Axelrod, Esq.
Susan J. Weiswasser, Esq.
POMERANTZ HAUDEK GROSSMAN & GROSS LLP
100 Park Avenue
New York, New York 10017
Telephone: 212.661.1100
Fax: 212.661.1373
- and -
Vincent N. Buttaci, Esq.
John W. Leardi, Esq.
BUTTACI & LEARDI, LLC
212 Carnegie Center, Suite 206
Princeton, New Jersey 08540
Telephone: 609.919.6311
Fax: 609.524.2575
- and -
Diane M. Frantell, Esq.
LAW OFFICES OF DIANE M. FRANTELL
313 Hampton Court, Suite 200
Lake Villa, IL 60046
Telephone: 847.265.0707
- and -
Andrew S. Friedman, Esq.
BONNETT, FAIRBOURN FRIEDMAN & BALINT, P.C.
2901 N. Central Avenue, Suite #1000
Phoenix, AZ 85012
Telephone: 602.274.1100
- and -
James E. Cecchi, Esq.
CARELLA BYRNE BAIN GILFILLAN CECCHI STEWART & OLSTEIN
5 Becker Farm Road
Roseland, NJ 07068
Telephone: 973.994.1700
- and -
Jonathan W. Cuneo, Esq.
David W. Stanley, Esq.
CUNEO GILBERT & LADUCA, LLP
507 C Street NE
Washington, D.C. 20002
Telephone: 202.789.3960
- and -
Michael C. Dodge, Esq.
GLAST, PHILLIPS & MURRAY, P.C.
2200 One Galleria Tower
13355 Noel Road, L.B. 48
Dallas, Texas 75240-1518
Telephone: 972.419.8300
- and -
Bruce D. Greenberg, Esq.
LITE DEPALMA GREENBERG & RIVAS, LLC
Two Gateway Center, 12th Floor
Newark, NJ 07102
Telephone: 973.623.3000
- and -
Christopher M. Burke, Esq.
SCOTT + SCOTT LLP
600 B Street, Suite 1500
San Diego, CA 92101
Telephone: 619.233.4565
- and -
Joseph P. Guglielmo, Esq.
SCOTT + SCOTT LLP
29 West 57th Street, 14th Floor
New York, NY 10019
Telephone: 212.223.6444
LIGGETT GROUP: Settles Broward Co. Lifelong Smoker Case for $100K
-----------------------------------------------------------------
Jordana Mishory at the Daily Business Review reports that C.
Calvin Warriner, III, Esq., at Searcy Denney Scarola Barnhart &
Shipley PA, settled Roslyn Marrazzo's lawsuit against Liggett
Group for $100,000. Tobacco companies rarely settle, the
reporter notes, and a number of attorneys asked about the
settlement -- Mr. Warriner included -- said it was the only
settlement they are aware of for a former class member.
The report indicates the settlement amount is very low when
compared to other seven-figure jury awards in Broward county.
The report observes that if tobacco companies settled all 350
pending Broward smoker cases for $100,000, the cost would be
about $35 million.
The full report is available at:
http://www.law.com/newswire/cache/1202433829409.html
Ms. Marrazzo's is represented by:
C. Calvin Warriner, III, Esq.
Searcy Denney Scarola Barnhart & Shipley PA
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409-6601
Telephone: (561) 686-6300
Liggett Group is represented by:
Aaron H. Marks, Esq.
Kasowitz Benson Torres & Friedman LLP
1633 Broadway
New York, NY 10019
Telephone: (212) 506-1700
MARVELL TECHNOLOGY: Nov. 6 Hearing Set for Securities Suit Deal
----------------------------------------------------------------
A Nov. 6, 2009, final approval hearing has been set for the
settlement of a consolidated class-action complaint filed against
Marvell Technology Group Ltd. in the U.S. District Court for the
Northern District of California.
Between Oct. 5 and Nov. 13, 2006, four putative class-action
suits were filed in the U.S. District Court for the Northern
District of California against the company and certain of its
officers and directors.
The complaints allege that the company and certain of its
officers and directors violated the federal securities laws by
making false and misleading statements and omissions relating to
the grants of stock options.
The complaints seek, on behalf of persons who purchased the
company's common shares during the period from Oct. 3, 2001 to
Oct. 3, 2006, unspecified damages, interest, and costs and
expenses, including attorneys' fees and disbursements.
Pursuant to an order of the court dated Feb. 2, 2007, these four
putative class actions were consolidated as a single action
entitled "In re Marvell Technology Group, Ltd. Securities
Litigation."
On Aug. 16, 2007, the plaintiffs filed a consolidated class-
action complaint. On Oct. 18, 2007, the company filed a motion
to dismiss the consolidated class action complaint. The motion
is fully briefed and was argued on Feb. 15, 2008 (Class Action
Reporter, June 19, 2008).
On Sept. 29, 2008, the District Court issued an order granting
in part and denying in part Marvell's motion to dismiss the
consolidated class action complaint. The District Court gave
the plaintiffs 30 days to amend their complaint. Plaintiffs
elected not to amend the complaint and instead will proceed with
the claims that the court did not dismiss.
The company filed its answer to the complaint on Jan. 12, 2009
(Class Action Reporter, May 8, 2009).
On June 9, 2009, the parties entered into a stipulation of
settlement to resolve the lawsuit. The settlement provides for a
payment by the company to the class of $72 million. On July 31,
2009, the Court granted preliminary approval of the proposed
settlement. The hearing at which the Court will consider whether
to grant final approval of the settlement is scheduled for Nov.
6, 2009.
The company accrued $72 million in the first quarter of fiscal
2010 and paid the amount into escrow in August 2009, according to
the company's Sept. 10, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Aug. 1,
2009.
Marvell Technology Group Ltd. provides semiconductors of analog,
mixed-signal, digital signal processing, and embedded
microprocessor integrated circuits worldwide. The company is
headquartered in Hamilton, Bermuda.
MILFORD WATER: Residents Sue After Boiling Water for 13 Days
------------------------------------------------------------
Danielle Ameden at the Milford Daily News reports that Milford
Water Co. will now be fighting a class action lawsuit over the
Massachusetts' town's drinking water crisis.
The lawsuit was filed this week on behalf of seven residents,
including a child. The 15-page complaint, with 56 pages of
attached exhibits, alleges negligence, gross negligence, breach
of contract, breach of warranties and unjust enrichment by the
private utility in connection with August's 13-day boil-water
order. The plaintiffs are seeking damages for their personal
injuries, a permanent injunction against the Water Co. and
appointment of a "special master" to oversee day-to-day
operations and protect public safety as it rebounds from the
crisis.
Ms. Ameden's complete report is available at http://is.gd/3kzUL
Milford Water Co. officials and their attorney told Ms. Ameden
they were not aware of the suit and want to review it before
commenting on the allegations.
"I guess I'm a little surprised, but we'll deal with it as it
comes," David White, the company's vice president and treasurer,
told Ms. Ameden. Jeffrey B. Loeb, Esq., at Rich May in Boston,
told Ms. Ameden the company had previously received a "demand
letter" from O'Connor that detailed some concerns. "Our response
was to deny the allegations in his letter," Mr. Loeb said.
A copy of the Complaint in Bennett, et al. v. Milford Water
Company, Civil Action No. 09-_____ (Mass. Super. Ct., Worcester),
is available at:
http://media.townonline.com/pdf/MILwatersuit.pdf
The Plaintiffs are represented by:
James L. O'Connor, Jr., Esq.
C. Deborah Phillips, Esq.
Nickless and Phillips, PC
625 Main Street
Fitchburg, MA 01420
Telephone: (978) 342-4590
- and -
Edwin H. Howard, Esq.
James Galliher, Esq.
Bonville & Howard
154 Pritchard Street
Fitchburg, MA 01420
Telephone: (978) 345-4144
- and -
Barry M. Altman, Esq.
Altman & Altman
404 Main Street
Wilmington, MA 01887
Telephone: (978) 658-3388
Milford Water Co.'s outside counsel (which may or may not
represent the company in this specific matter) is:
Jeffrey B. Loeb, Esq.
Rich May, P.C.
176 Federal Street, 6th Floor
Boston, MA 02110-2223
Telephone: (617) 556-3800
PETER MADOFF: Lautenberg Foundation Can Sue Bernie's Brother
------------------------------------------------------------
Mary Pat Gallagher at the New Jersey Law Journal reports that
U.S. Sen. Frank Lautenberg's family foundation can proceed with a
securities fraud suit against Peter Madoff, brother of convicted
Ponzi schemer Bernard Madoff, a federal judge says.
In a Sept. 9 ruling in The Lautenberg Foundation v. Madoff, Case
No. 09-cv-816 (D. N.J.), U.S. District Judge Stanley Chesler
declined to dismiss a claim that Peter Madoff violated Securities
Exchange Act Sec. 10(b) by failing to disclose to investors that
his brother's company was engaged in a fraud and a claim based on
his status as a controlling person under Sec. 20(a). Judge
Chesler dismissed without prejudice Sec. 10(b) claims alleging
Peter Madoff made material misrepresentations and engaged in a
deceptive scheme, which means the plaintiffs can reassert those
claims if they unearth evidence to support them during discovery.
Ms. Gallagher's full report is available at:
http://www.law.com/newswire/cache/1202433830618.html
The Plaintiffs are represented by:
Ronald J. Riccio, Esq.
McElroy, Deutsch, Mulvaney & Carpenter, LLP
Three Gateway Center
100 Mulberry Street
Newark, NJ 07102-4079
Telephone: (973) 622-7711
Peter Madoff is represented by:
Charles T. Spada, Esq.
Lankler Siffert & Wohl LLP
500 Fifth Ave, 33rd Floor
New York, NY 10110
Telephone: (212) 921-8399
- and -
Michael J. Grohs, Esq.
William Maderer, Esq.
Saiber
One Gateway Center, 13th Floor
Newark, NJ 07102-5311
Telephone: (973) 622-3333
REMEC INC: Securities Suit Pretrial Conference Continued to 2010
----------------------------------------------------------------
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 continued to Jan. 25,
2010.
A trial has also been set for Feb. 23, 2010.
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 was
scheduled by the Court last 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 Sept. 14, 2009,
Form 10-Q Filing with the U.S. Securities and Exchange Commission
for the quarter ended July 31, 2009.
The suit is In re: REMEC Inc. Securities Litigation, Case No. 04-
CV-1948 (S.D. Calif.) (Miller, J.).
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
- and -
David W. Mitchell, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP
655 West Broadway, Suite 1900
San Diego, CA 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, Esq.
DLA Piper Rudnick Gray Cary, US, LLP
401 "B" Street, Suite 1700
San Diego, CA 92101
Phone: (619) 699-2700 and (858) 638-6886
Fax: 858-677-1401
Web site: http://www.dlapiper.com
RICON CORP: SDNY Reinstates Misrepresented Wheelchair Lift Suit
---------------------------------------------------------------
Fung Wah Bus Transportation, Inc. v. Ricon Corporation, et al.,
Case No. 08-cv-06481 (S.D.N.Y.) (Preska, J.), has been
reinstated. The lawsuit is a breach of contract action against
ABC Bus Inc. for selling buses equipped with wheelchair lifts
that do not comply with the Americans with Disabilities Act and
were manufactured by Los Angeles-based Ricon Corporation, a
subsidiary of global Wabtec, Inc. (NYSE: WAB).
The Class Action Reporter reported about the filing of the
lawsuit on July 24, 2008.
"Because of Ricon's and ABC's refusal to fix the problem
specifically identified by two government agencies with
jurisdiction over ADA issues, Fung Wah Bus Transportation really
had no choice but to bring the lawsuit. These companies' refusal
to do the right thing is particularly troubling since we believe
that ADA non-compliant chair lifts have been installed on tens of
thousands of buses operating in the United States," said Robert
Y. Lewis, Esq., of Freeman Lewis LLP, attorneys for plaintiff
based in New York City.
The Ricon wheelchair lifts installed in buses sold by ABC and
others have a platform that lifts a wheelchair and its disabled
rider from the ground to bus level. A portion of the floor of
the Ricon "Baylifts" in the buses purchased by plaintiff Fung Wah
Bus Transportation, based in New York City, is without side
barriers as required by the ADA to prevent the wheelchair from
rolling off the platform, despite assurances made by both Ricon
and ABC that the lifts were fully ADA compliant.
During an ADA compliance review of Fung Wah, the United States
Department of Justice noted the absence of the side barriers on
the Baylift. Fung Wah purchased a number of buses from ABC with
ADA non-compliant lifts between July 2005 and January 2007. After
learning of the defect, Fung Wah, at the direction of the DOJ,
asked both ABC and Ricon to fix or replace the lifts, but both
companies refused in breach of their express and implied
warranties. But on their websites both Ricon and ABC boast that
the lifts are fully ADA compliant.
Mr. Lewis' investigation reveals that the government has
determined that another style of Ricon lifts known as the
"Mirage", found on the buses of the Pueblo, Colorado, Transit
Authority, does not comply with the ADA for the same reason that
the Baylift is non-compliant.
Freeman Lewis LLP is a boutique law firm based in New York City
that specializes in representing clients in the resolution of
complex commercial and business disputes.
The Plaintiff is represented by:
Robert Yancy Lewis, Esq.
Jennifer Freeman, Esq.
Alexander Todd Linzer, Esq.
Freeman Lewis LLP
228 East 45th Street, 17th Floor
New York, NY 10017
Telephone: (212)-980-4082
Fax: (212)-980-4055
E-mail: rlewis@freemanlewis.com
jfreeman@freemanlewis.com
alinzer@freemanlewis.com
- and -
Julie Prag Vianale, Esq.
Vianale & Vianale LLP
5355 Town Center Road, Suite 801
Boca Raton, FL 33486
Telephone: 561-392-4750
Fax: 561-392-4775
E-mail: e-file@vianalelaw.com
Ricon Corporation is represented by:
Thomas Lee Allen, Esq.
Dianna Calaboyias Wyrick, Esq.
Reed Smith, LLP
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Telephone: (412) 288-3066
Fax: (412) 288-3063
E-mail: tallen@reedsmith.com
dwyrick@reedsmith.com
- and -
David Amir Kochman, Esq.
Reed Smith
599 Lexington Avenue
New York, NY 10022
Telephone: (212) 521-5400
Fax: (212) 521-5450
E-mail: dkochman@reedsmith.com
ABC Bus, Inc., is represented by:
Edward L Birnbaum, Esq.
Sharon Schweidel, Esq.
Herzfeld & Rubin, P.C.
40 Wall Street
New York, NY 10005
Telephone: 212-471-8540
Fax: 212-344-3333
E-mail: ebirnbaum@herzfeld-rubin.com
sschewidel@Herzfeld-rubin.com
TWEEN BRANDS: Courts Denies Lead Plaintiff's Reconsideration Bid
----------------------------------------------------------------
The Hon. Gregory L. Frost of the U.S. District Court for the
Southern District of Ohio, on Aug. 4, 2009, denied Electrical
Works Pension Fund, Local 103, I.B.E.W.'s Motion for
Reconsideration in the consolidated securities fraud class-action
lawsuit against Tween Brands, Inc.
Case Background
Since Aug. 24, 2007, three purported class-action complaints had
been filed by purported purchasers of the Company's common stock
against the Company and certain of its officers, asserting claims
under the federal securities laws.
All of these actions were been filed with the U.S. District Court
for the Southern District of Ohio.
These cases are:
1. June Gruhn v. Tween Brands, Inc., et al.
(07 CV 852),
2. Allison Andrews v. Tween Brands, Inc., et al.
(07 CV 894), and
3. John Sefler v. Tween Brands, Inc., et al
(07 CV 925).
The actions purport to be brought on behalf of all purchasers of
the company's common stock during various periods beginning as
early as Feb. 21, 2007, and ending on Aug. 21, 2007, and allege,
among other things, that the defendants violated Section 10(b) of
the Exchange Act, and Rule 10b-5 promulgated thereunder and, in
one action, Section 20(a) of the Exchange Act by making false and
misleading statements concerning the company's business and
prospects during the class period.
These actions also allege that the company's CEO sold stock while
in possession of adverse non-public information.
On Dec. 21, 2007, the Court appointed the Electrical Works
Pension Fund, Local 103, I.B.E.W., as lead plaintiff.
On March 20, 2008, the lead plaintiff filed a consolidated
complaint naming the Company and certain current and former
officers as defendants.
On May 5, 2008, a Motion to Dismiss the consolidated complaint
was filed on behalf of all defendants.
On June 17, 2008, a Motion for Leave to File a First Amended
Consolidated Complaint was filed by the lead plaintiff. On Sept.
4, 2008, the Court granted the lead plaintiff's Motion for Leave
to File a First Amended Consolidated Complaint and on Oct. 3,
2008, the lead plaintiff filed an Amended Consolidated
Complaint.
On Nov. 17, 2008, a Motion to Dismiss the Amended Consolidated
Complaint was filed on behalf of all defendants.
On Jan. 20, 2009, lead plaintiff filed an Opposition to
Defendants Motion to Dismiss. On March 2, 2009, defendants filed
a Reply in Support of the Motion to Dismiss.
On June 2, 2009, the Court granted Defendants' Motion to Dismiss
with prejudice.
On June 16, 2009, the lead plaintiff filed a Motion for
Reconsideration, which was denied by the Court on Aug. 4, 2009.
The 30 day time period for appeal has expired, company discloses
in its Sept. 9, 2009, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Aug. 1, 2009.
The suit is June Gruhn, et al. v. Tween Brands, Inc., et al.,
Case No. 07-CV-00852 (S.D. Ohio) (Frost, J.).
Representing the plaintiffs is:
Richard Stuart Wayne, Esq.
Strauss & Troy
The Federal Reserve Building
150 E Fourth Street, 4th Floor
Cincinnati, OH 45202-4018
Phone: 513-621-2120
E-mail: rswayne@strausstroy.com
Representing the defendants is:
James A. King, Esq.
Porter Wright Morris & Arthur
41 S. High Street, Suite 2800
Columbus, OH 43215-6194
Phone: 614-227-2000
E-mail: jking@porterwright.com
TYCO INT'L: Litigation Continues with ADT Worldwide Dealers
-----------------------------------------------------------
Lloyds General Corporate Litigation Reporter relates that Tyco
International Ltd. still faces former dealers and related
parties' lawsuits that allege breach of contract and other claims
over unit ADT Worldwide's decision to terminate certain
authorized dealers in 2002 and 2003.
In 2002, certain of the Company's employees received subpoenas
from the Securities and Exchange Commission's Division of
Enforcement seeking testimony related to past accounting
practices for dealer connect fees that ADT had charged to its
authorized dealers upon purchasing customer accounts.
The investigation related to accounting practices employed by the
Company's former management, which were discontinued in 2003.
Although the company settled with the SEC in 2006, a number of
former dealers and related parties have filed lawsuits against
the company, including a class action lawsuit filed in the
District Court of Arapahoe County, Colorado, alleging breach of
contract and other claims related to ADT's decision to terminate
certain authorized dealers in 2002 and 2003.
Tyco says it is not possible at this time to predict the final
outcome of these lawsuits, but the company does not believe these
claims will have a material adverse effect on the Company's
financial position, results of operations or cash flows.
Pembroke, Bermuda-based Tyco International Ltd. makes electrical
and metal products (steel tubing, pipes, cables) for commercial
construction. Its flow control unit makes valves and related
products for water, wastewater, and the oil and gas markets.
WAL-MART STORES: Jury Trial in "Salvas" Case to Start on Oct. 5
---------------------------------------------------------------
A jury trial is scheduled to begin on Oct. 5, 2009, in the class-
action lawsuit, Salvas v. Wal-Mart Stores, Inc.
The trial will be held in the Superior Court of Middlesex County,
Massachusetts, according to Wal-Mart Stores, Inc.'s Sept. 9,
2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended July 31, 2009.
The plaintiffs allege that class members worked off the clock and
were not provided meal and rest breaks in accordance with
Massachusetts law, and seek compensatory damages in the amount of
$30 million, plus statutory treble damages, interest, costs of
court and attorneys' fees.
The trial court granted class certification in December 2004,
then decertified the class in November 2006.
In September 2008, the Massachusetts Supreme Judicial Court
reversed the decertification and remanded the case for trial.
Wal-Mart Stores, Inc. -- http://walmartstores.com/-- serves
customers and club members more than 200 million times per week
at more than 8,000 retail units under 53 different banners in 15
countries. The company operates in three business segments:
Walmart U.S. and Sam's Club in the United States, and Walmart
International in 14 countries and Puerto Rico. In January 2009,
the company acquired 57% of D&S S.A.
WAL-MART STORES: Agreed to Settle "Savaglio" Suit on July 13
------------------------------------------------------------
Wal-Mart Stores, Inc., entered into an agreement on July 13,
2009, to settle the class-action lawsuit, Savaglio v. Wal-Mart
Stores, Inc.
The agreement is still subject to approval of the California
Appellate Court, the company states in its Sept. 9, 2009, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 31, 2009.
Plaintiffs in the class action allege that they were not provided
meal and rest breaks in accordance with California law, and seek
monetary damages and injunctive relief. A jury trial on the
plaintiffs' claims for monetary damages which was concluded on
Dec. 22, 2005, returned a verdict of approximately $57 million in
statutory penalties and $115 million in punitive damages.
If the court approves the settlement, the company expects to pay
at least $77 million but no more than $152 million, depending on
the number and amount of claims. The company may also incur
additional administrative expenses and other costs in the process
of concluding the settlement.
The total amount to be paid by the company will depend on whether
such approval is granted, as well as on the number and amount of
claims that are submitted by class members.
Kevin McCallum of The Press Democrat reports that 116,000
California workers originally filed the suit. Citing Fred Furth,
Esq., attorney for the plaintiffs, Mr. McCallum adds that each
worker, depending on the number of violations, is expected to get
between $75 up to $950.
Wal-Mart Stores, Inc. -- http://walmartstores.com/-- serves
customers and club members more than 200 million times per week
at more than 8,000 retail units under 53 different banners in 15
countries. The company operates in three business segments:
Walmart U.S. and Sam's Club in the United States, and Walmart
International in 14 countries and Puerto Rico. In January 2009,
the company acquired 57% of D&S S.A.
WAL-MART STORES: Paid $46 Million to Settle "Braun" Suit in Aug.
----------------------------------------------------------------
Wal-Mart Stores, Inc., paid $46 million on Aug. 11, 2009, to
settle the class-action suit, Braun v. Wal-Mart Stores, Inc.,
which was filed in the District Court, Dakota County, First
Judicial District, Minnesota (Hastings).
Part of the amount was paid to the State of Minnesota and part to
the class members and their counsel, the company discloses in its
Sept. 9, 2009, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 31, 2009.
The suit was brought by four women on behalf of 56,000 Wal-Mart
and Sam's Club hourly employees.
The plaintiffs listed in the suit are:
-- Nancy Braun, who worked at a Wal-Mart store in Apple
Valley, Minnesota;
-- Debbie Simonson and Cindy Severson, who worked in
Brooklyn Park; and
-- Pamela Reinert, who worked at stores in the
Minneapolis-St. Paul area.
It specifically alleges that Wal-Mart managers, with severely
understaffed stores and under pressure to cut costs, inserted
unused breaks on timecards and asked employees to start work
before clocking in and stay late after clocking out. It also
alleges that the company tied bonuses for store managers to store
profitability.
The plaintiffs further claim that Wal-Mart allegedly committed
more than 14 million violations of company policies and Minnesota
wage and hour laws, amounting to $27 million in unpaid wages.
They are seeking back pay to 1998 and as much as $1,000 each for
millions of missed breaks. Punitive damages in the case will be
allowed if the judge finds against Wal-Mart, and thus damages
could total billions of dollars.
A trial commenced on Sept. 24, 2007, in the First Judicial
District Court for Dakota County, Minnesota, on the plaintiffs'
claims that class members worked off the clock and were not
provided meal and rest breaks in accordance with Minnesota law.
Testimony concluded on Dec. 11, 2007.
On June 30, 2008, the trial judge issued an Order awarding the
class approximately $6.5 million in compensatory and liquidated
damages. The judge also set the plaintiffs' claims for punitive
damages and statutory penalties for trial on Oct. 20, 2008, but
invited the parties to seek an immediate appeal of the findings
made thus far.
On July 29, 2008, the company filed a petition with the Minnesota
Court of Appeals requesting immediate appeal.
In October 2008, the company agreed to settle the case by paying
up to approximately $54 million, part of which is to be paid to
the State of Minnesota and part to the class members and their
counsel.
On Jan. 14, 2009, the trial court entered an Order granting
preliminary approval of the settlement and directing that notices
be mailed to class members.
On June 1, 2009, the trial court entered an Order granting final
approval of the settlement.
The case is Braun v. Wal-Mart Inc., 19-CO-01-9790 (King, J.)
Representing the plaintiffs is:
Jonathan S. Parritz, Esq.
Maslon Edelman Borman & Brand, LLP
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140
Phone: 612.672.8334
Fax: 612.642.8334
Web site: http://www.maslon.com
E-mail: jon.parritz@maslon.com
WAL-MART STORES: Appeal to "Braun/Hummel" Judgment Still Pending
----------------------------------------------------------------
Wal-Mart Stores, Inc.'s appeal to a $188 million judgment in the
matter, Braun/Hummel v. Wal-Mart Stores, Inc., remains pending,
according to the company's Sept. 9, 2009, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
July 31, 2009.
The case is containing class-action allegations in which the
plaintiffs are current and former hourly associates who allege
that the company forced or encouraged them to work "off the
clock," failed to provide rest breaks or meal periods, or
otherwise failed to pay them correctly. It generally seeks
unspecified monetary damages, injunctive relief, or both.
A trial was commenced in the matter on September 2006, in
Philadelphia, Pennsylvania. The plaintiffs allege that the
company failed to pay class members for all hours worked and
prevented class members from taking their full meal and rest
breaks.
On Oct. 13, 2006, the jury awarded back-pay damages to the
plaintiffs of approximately $78 million on their claims for off-
the-clock work and missed rest breaks. The jury found in favor
of the company on the plaintiffs' meal-period claims.
On Nov. 14, 2007, the trial judge entered a final judgment in the
approximate amount of $188 million, which included the jury's
back-pay award plus statutory penalties, prejudgment interest and
attorneys' fees.
The company believes it has substantial factual and legal
defenses to the claims at issue, and on Dec. 7, 2007, the company
filed its Notice of Appeal.
Wal-Mart Stores, Inc. -- http://walmartstores.com/-- serves
customers and club members more than 200 million times per week
at more than 8,000 retail units under 53 different banners in 15
countries. The company operates in three business segments:
Walmart U.S. and Sam's Club in the United States, and Walmart
International in 14 countries and Puerto Rico. In January 2009,
the company acquired 57% of D&S S.A.
WAL-MART STORES: Dukes Gender Discrimination Suit Still Pending
----------------------------------------------------------------
Wal-Mart Stores, Inc. continues to face a gender-discrimination
class-action lawsuit, Dukes v. Wal-Mart Stores, Inc.
The purported class-action suit was commenced in June 2001 and
was filed in the U.S. District Court for the Northern District of
California. It was brought on behalf of all past and present
female employees in all of the company's retail stores and
warehouse clubs in the U.S.
The complaint alleges that the company has engaged in a pattern
and practice of discriminating against women in promotions, pay,
training, and job assignments. It seeks, among other things,
injunctive relief, front pay, back pay, punitive damages, and
attorneys' fees.
On June 21, 2004, the district court issued an order granting in
part and denying in part the plaintiffs' motion for class
certification.
The class, which was certified by the district court for purposes
of liability, injunctive and declaratory relief, punitive
damages, and lost pay, subject to certain exceptions, includes
all women employed at any Wal-Mart domestic retail
store at any time since Dec. 26, 1998, who have been or may be
subjected to the pay and management track promotions policies and
practices challenged by the plaintiffs.
The class as certified currently includes approximately 1.6
million present and former female associates.
The company believes that the district court's ruling is
incorrect.
On Aug. 31, 2004, the U.S. Court of Appeals for the Ninth Circuit
granted the company's petition for discretionary review of the
ruling.
On Feb. 6, 2007, a divided three-judge panel of the court of
Appeals issued a decision affirming the district court's
certification order.
On Feb. 20, 2007, the company filed a petition asking that the
decision be reconsidered by a larger panel of the court. On Dec.
11, 2007, the three-judge panel withdrew its opinion of Feb. 6,
2007, and issued a revised opinion. As a result, Wal-Mart's
Petition for Rehearing En Banc was denied as moot.
Wal-Mart filed a new Petition for Rehearing En Banc on Jan. 8,
2008.
On Feb. 13, 2009, the court of appeals issued an Order granting
the Petition. The court of appeals heard oral argument on the
Petition on March 24, 2009.
No further updates regarding the matter were reported in the
company's Sept. 9, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 31,
2009.
Wal-Mart Stores, Inc. -- http://walmartstores.com/-- serves
customers and club members more than 200 million times per week
at more than 8,000 retail units under 53 different banners in 15
countries. The company operates in three business segments:
Walmart U.S. and Sam's Club in the United States, and Walmart
International in 14 countries and Puerto Rico. In January 2009,
the company acquired 57% of D&S S.A.
Asbestos Litigation
ASBESTOS UPDATE: Navistar Int'l. Still Subject to Exposure Cases
----------------------------------------------------------------
Navistar International Corporation continues to be subject to an
increase in the number of asbestos-related claims in recent
years, according to the Company's quarterly report filed with the
Securities and Exchange Commission on Sept. 9, 2009.
In general, these claims relate to illnesses alleged to have
resulted from asbestos exposure from component parts found in
older vehicles, although some cases relate to the alleged
presence of asbestos in the Company's facilities.
In these claims, the Company is not the sole defendant, and the
claims name as defendants numerous manufacturers and suppliers of
a wide variety of products allegedly containing asbestos.
Warrenville, Ill.-based Navistar International Corporation
manufactures products under brand names like International
(commercial trucks and military vehicles); MaxxForce (diesel
engines); IC (school and commercial buses); and Workhorse
(chassis for motor homes). The Company also designs and
manufactures diesel engines for the pickup truck, van, and SUV
markets.
ASBESTOS UPDATE: Joy Global, Units Still Facing Exposure Actions
----------------------------------------------------------------
Joy Global Inc. and its subsidiaries are still involved in legal
matters that arise in the normal course of operations, the most
prevalent of which relate to product liability (including
asbestos-related and silicosis liability), employment, and
commercial matters.
No other asbestos-related matters were disclosed in the Company's
quarterly report filed with the Securities and Exchange
Commission on Sept. 9, 2009.
Milwaukee-based Joy Global Inc. manufactures and services high-
productivity mining equipment for the extraction of coal and
other minerals and ores. The Company operates in three business
segments: Underground Mining Machinery, Surface Mining Equipment,
and Crushing & Conveying.
ASBESTOS UPDATE: J. C. Penney Has $45M A&E Liabilities at Aug. 1
----------------------------------------------------------------
J. C. Penney Company, Inc., as of Aug. 1, 2009, estimated its
total potential asbestos and environmental liabilities to range
from US$41 million to US$52 million and recorded its best
estimate of US$45 million in other liabilities in the
Consolidated Balance Sheet as of that date.
This estimate covered potential liabilities primarily related to
underground storage tanks, remediation of environmental
conditions involving the Company's former Eckerd drugstore
locations and asbestos removal in connection with approved plans
to renovate or dispose of its facilities.
The Company continues to assess required remediation and the
adequacy of environmental reserves as new information becomes
available and known conditions are further delineated.
Plano, Tex.-based J. C. Penney Company, Inc.'s subsidiary, J. C.
Penney Corporation, is a department store, catalog, and e-
commerce retailer. The retailer runs more than 1,090 JCPenney
department stores throughout the United States and Puerto Rico.
ASBESTOS UPDATE: Ex-Cardiff City Player's Death Linked to Hazard
----------------------------------------------------------------
An inquest, held on Sept. 8, 2009, heard that the death of 66-
year-old Brydon Phillips, who played for Cardiff City Football
Club between 1958 and 1962, was linked to exposure to asbestos,
WalesOnline.co.uk reports.
Coroner Alan Crickmore ruled that Mr. Phillips had more than
likely been exposed to asbestos when he worked for Winget at the
old Wagon Works plant in Gloucester, England.
The inquest heard that Mr. Phillips, of Northfield Square,
Gloucester, England, complained of a persistent cough in March
2008. Lung cancer was later diagnosed and he was admitted to
hospital on the morning of March 8, 2009 as his condition
deteriorated. He died later that day.
In a statement to the inquest in Cheltenham, Mr. Phillips'
daughter Sandra Beresford said her father had been on Cardiff
City's books for four years. In 1962, he went to work as an
inspector at Winget, where he stayed for 20 years.
Mrs. Beresford said Mr. Phillips' work was office-based. He left
Winget in 1984 and worked variously as a self-employed decorator,
machine operator, welder and fitter. He had smoked up to 20
cigarettes a day, but had given up smoking some years ago, she
said.
Mrs. Beresford said her father met other former Winget workers
who were undergoing chemotherapy at the same time as him and the
consensus was that their illness could have been linked to
working at the Wagon Works.
Consultant pathologist Professor Neil Shepherd said in a
statement that a post-mortem examination revealed evidence of
exposure to asbestos with 63,262 microfibers of the mineral found
per gram of dry lung tissue. He said there was an increased risk
of developing lung cancer in a smoker who was also exposed to
asbestos.
Mr. Crickmore said it was more than likely that Mr. Phillips had,
on many occasions, visited the factory floor and workshops at the
Wagon Works.
Mr. Crickmore said these were areas where asbestos and asbestos
fibres were universal. He recorded a verdict of death from
industrial disease.
ASBESTOS UPDATE: Aussie Gov't. to Make Sure Hardie Upholds Compo
----------------------------------------------------------------
Australia Labor frontbencher Greg Combet says the Government will
make sure that James Hardie Industries N.V. upholds compensation
agreements it made with asbestos victims, news.com.au reports.
Mr. Combet, speaking at a book launch in Canberra, Australia,
said there must never again be a circumstance where a company was
able to avoid its responsibility to the Australian community and
victims of their products.
Mr. Combet was commenting at the launch of a book - Killer
Company: James Hardie exposed - written by ABC journalist Matt
Peacock who has been following the case of the asbestos maker for
30 years.
Mr. Combet was secretary of the Australian Council of Trade
Unions (ACTU) in 2004 when the union movement campaigned to
ensure Hardie provided funds to compensate asbestos victims.
Karen Banton, whose late husband Bernie was the public face of
asbestos disease sufferers, said the book had been eagerly
awaited.
ASBESTOS UPDATE: Del. Church Accused of Breaching 7 Regulations
----------------------------------------------------------------
St. Peter Catholic Church in New Castle, Del., was charged with
seven violations after asbestos was removed from its elementary
school in the summer of 2009 by volunteers, delawareonline
reports.
On Sept. 1, 2009, school and Diocese of Wilmington officials said
the work was done by overzealous volunteers who did not check
with officials before the project began on August 2009.
The following charges were lodged against the church in a local
Justice of the Peace Court by the Delaware Department of Natural
Resources and Environmental Control on Aug. 25, 2009.
These charges are:
-- Three counts of removal of asbestos by an uncertified worker.
-- One count of disposal of solid waste in a manner not approved
by DNREC.
-- One count of failing to seal off a work area to minimize the
dispersal of asbestos.
-- One count of leaving visible residue of asbestos after the
project is complete.
-- One count of failing to maintain disposal records of
asbestos.
The work in the building that houses the school cafeteria and
gymnasium is believed to have taken place around Aug. 17, 2009,
according to William P. McDaniel, chief of DNREC's Environmental
Crimes Unit.
DNREC received a complaint on Aug. 24, 2009 and visited the
school, which teaches children from pre-kindergarten through
eighth grade, the next day, Mr. McDaniel said.
Diocese of Wilmington spokesman Robert Krebs said on Aug. 31,
2009 that neither the church pastor nor the school principal knew
the removal project included asbestos-containing materials.
After charges were filed by DNREC, the church hired a certified
asbestos-removal company to handle the job. According to the
DNREC filings, officials were troubled by what they found during
their inspection.
Mr. McDaniel said, "We found what appeared to be asbestos-
containing floor tile. A sample was taken and it did in fact
confirm that it contained asbestos."
At least three non-professionals did the work, Mr. McDaniel said.
If found guilty, the church would have to pay "a couple thousand
dollars worth of fines here."
Mr. McDaniel said the charges indicate that DNREC was not
notified about the job beforehand. The tiles allegedly were put
in a trash container in a parking lot. The area was not sealed
off, meaning asbestos could have spread throughout the building,
he said.
Delaware's asbestos-removal program regulates the process.
Asbestos materials were used in industrial and commercial
facilities as well as in homes until the early 1980s, the state's
Web site says.
ASBESTOS UPDATE: Former BNSC Executive's Death Linked to Hazard
----------------------------------------------------------------
An inquest heard that the death of Derrick Gould, a former head
of the British National Space Centre, was linked to exposure to
asbestos, the North-West Evening Mail reports.
Mr. Gould was born in Barrow, England, in 1936 and studied at the
town's grammar school. He went to Oxford University and emerged
with a doctorate in 1962. He had worked as a part-time laborer at
Vickers plc when he returned to Barrow during the summer
holidays.
Mr. Gould joined the government rocket establishment at
Aylesbury, Buckinghamshire, working on the development of rocket
fuels and motors. Later, he moved to Farnborough to develop small
satellites and eventually became head of space projects at the
BNSC, Britain's arm of the European Space Agency.
At the age of 73, Mr. Gould died at St. Mary's Hospice in
Ulverston on June 22, 2009. The inquest into his death was held
on Sept. 7, 2009 at Barrow Town Hall.
Coroner for South and East Cumbria, Mr. Ian Smith, recorded a
verdict of death by industrial disease.
A post-mortem carried out on Mr. Gould by Dr. Marek Witkowski,
consultant pathologist at Furness General Hospital in Barrow, had
showed advanced mesothelioma with metastasis.
Mr. Smith said, "He spent most of his life in government service
in space technology. Of some interest is that he worked as a
holiday job at the shipyard for three months. I have no doubt
that in the course of that he would have been exposed to
asbestos."
ASBESTOS UPDATE: 3 Contractors to Pay GBP15T for Disposal Breach
----------------------------------------------------------------
More than GBP15,000 in penalties were handed out to three
contractors who removed asbestos from a special school Rotherham,
South Yorkshire, England, without a license, the Yorkshire Post
reports.
The firms were prosecuted by the Health and Safety Executive
(HSE) and all pleaded guilty to breaches of the Health and Safety
at Work Act, after carrying out the unlicensed removal at Kelford
School in 2006.
After a hearing at Rotherham Magistrates' Court on Sept. 4, 2009,
Mansell Build Ltd of Cheadle Hulme, Cheshire, was fined GBP12,500
and ordered to pay GBP12,500 costs.
Andrew Brightmore, a former manager of ARB Agriplant Ltd from
Thurcroft, Rotherham, was fined GBP2,500 and ordered to pay
GBP500 costs. Gary Cusack, also of Thurcroft, was fined GBP500
and ordered to pay GBP250 costs.
Mansell, the principal contractor, was employed to remove
asbestos insulating board ceilings at the school. However, it
contracted out ARB Agriplant to do the work, despite it not being
licensed by the HSE.
ARB Agriplant then in turn subcontracted the work to Mr. Cusack,
another unlicensed contractor.
All contractors failed to implement basic requirements to prevent
the spread and exposure to asbestos.
Following the incident, ARB Agriplant also provided a forged
asbestos license and a falsified clearance certificate to
Mansell.
HSE inspector David Bradley said, "Those responsible for
employees have a legal duty to protect their health and safety
and in the case of asbestos they should know that any disturbance
of such a dangerous material should only be tackled by licensed
workers."
ASBESTOS UPDATE: Carillion Settles w/ Former Worker for GBP181T
---------------------------------------------------------------
Carillion (Singapore) Ltd, a Wolverhampton, West Midlands,
England-based heating and engineering company, reached an out-of-
court settlement for GBP181,000 with an unnamed 64-year-old
former employee suffering from mesothelioma, FMworld reports.
Carillion agreed to settle the case with the employee due to his
repeated exposure to asbestos while working for a company that
Carillion bought.
The plaintiff was diagnosed with mesothelioma in March 2009 and
his case was pursued by solicitors Thompsons via the Royal Court
of Justice fast-track system for sufferers of the disease.
Employed by Brightside Heating & Engineering in the 1960s, now
owned by Carillion, the claimant suffered prolonged exposure to
asbestos when working on pipes in a building belonging to
Westminster University in London.
The claimant said, "I want to fight this disease. I know
chemotherapy is available to me on the NHS which may extend my
life by a few months but could make me feel worse than I already
do."
Helen Jones from Thompsons Solicitors added, "This case shows how
important it is for some mesothelioma sufferers to have the case
concluded within their lifetime. By achieving a successful
settlement our client now has the means to pay for alternative
medical treatment if he chooses to."
ASBESTOS UPDATE: Ulverston Resident's Death Linked to Exposure
--------------------------------------------------------------
An inquest heard that the death of 83-year-old Robert Hodgson, of
Ulverston, Cumbria, England, was linked to exposure to asbestos,
The Westmoreland Gazette reports.
Mr. Hodgson had worked in the printing department at Vickers plc
shipyards in Barrow for 17 years before retiring through ill
health.
A post-mortem found Mr. Hodgson died from chronic congestive
heart failure, brought on by mesothelioma of the lungs. The
inquest was told that more than 98 percent of mesothelioma cases
are caused by exposure to asbestos.
South and East Cumbria coroner Ian Smith, recording a verdict of
death by industrial disease, said, "I am satisfied on the balance
of probabilities that the reason that Mr. Hodgson died was
related to some asbestos exposure somewhere along the line."
Mr. Smith added, "I can't say for sure it was from the shipyards,
but there is a likelihood he would have been exposed to asbestos
at the shipyard. I am sure he would have gone down to the shop
floor from time to time."
ASBESTOS UPDATE: California Wildfires Raises Concerns on Hazard
---------------------------------------------------------------
The recent Southern California wildfires prompted several
concerns over citizen safety from asbestos, which may still
appear in many homes built before 1980, Asbestos.com reports.
Contained on Sept. 3, 2009, these wildfires destroyed more than
140,000 acres of the Los Angeles forest, 64,000 homes and have
forces thousands to evacuate. Many local residents remain scared,
unsure when the fires will be sufficiently contained.
As the fate of their homes may be in jeopardy, avoiding exposure
to asbestos is now a top concern. Many homes and buildings built
before 1980 may still contain asbestos and the hot air currents
of a fire can carry asbestos fibers into the air.
The American Lung Association of California has offered several
health tips on avoiding asbestos exposure during wildfires.
ASBESTOS UPDATE: J.A.D. Owner Pleads Guilty to Disposal Breaches
----------------------------------------------------------------
Prosecutors said on Sept. 8, 2009, that John Deck, the owner of
New Jersey-based J.A.D. Inc., admitted in U.S. District Court to
obtaining a false state permit allowing asbestos dumping at an
illegal landfill, the Observer-Dispatch reports.
The illegal landfill in Frankfort, N.J., near the Mohawk River,
has been designated a federal Superfund site and could cost
millions of dollars to clean up, officials said.
Prosecutors said the 55-year-old Mr. Deck, of Norwood, N.J.,
faxed the permit to multiple trucking companies that did not
realize it was a fake.
Between July 2006 and October 2006, the companies hauled
pulverized construction and demolition debris from the New York
City area to a former dairy farm at 3720 Southside Road,
according to federal court documents.
Mr. Deck faces a maximum of five years in federal prison and a
fine of US$250,000 for his guilty plea to conspiracy to commit
wire fraud.
Mr. Deck, who is scheduled for sentencing on Jan. 8, 2010, also
must pay restitution related to the cleanup costs.
ASBESTOS UPDATE: PDG Records $11.6M Revenue Reduction at July 31
----------------------------------------------------------------
PDG Environmental, Inc. had a reduction of US$11.6 million for
asbestos abatement projects during the six months ended July 31,
2009, as compared to the same period last year, according to the
Company's quarterly report filed with the Securities and Exchange
Commission on Sept. 11, 2009.
During the three months ended April 30, 2009, the Company had a
reduction of about US$4 million for asbestos abatement projects.
(Class Action Reporter, June 19, 2009)
During the six months ended July 31, 2009, the Company's contract
revenues decreased by 38 percent to US$25.4 million compared to
US$40.9 million in the six months ended July 31, 2008.
The decrease was due to lower sales volumes as a result of lower
capital spending by the Company's customer base driven by
difficult economic conditions.
Pittsburgh-based PDG Environmental, Inc. provides environmental
and specialty contracting services including asbestos and lead
abatement, microbial remediation, disaster response, loss
mitigation and reconstruction, demolition and related services.
ASBESTOS UPDATE: Scapa Dryer Fabric's Move for New Trial Denied
---------------------------------------------------------------
The Superior Court of New Jersey, Appellate Division, affirmed
the ruling of the Superior Court of New Jersey, Law Division,
Middlesex County, which denied Scapa Dryer Fabrics Inc.'s motion
for a new trial in consolidated asbestos-related litigation.
Judges Carchman, Sabatino, and Simonelli entered judgment in the
case on July 31, 2009.
In this consolidated asbestos litigation, Scapa Dryer appealed
from judgments awarding monetary damages to Walter L. Patton, the
estate of plaintiff Harry H. Wilson and Mr. Wilson's wife,
Jeanette Wilson, and the estate of Walter W. Grube and Mr.
Grube's daughter, Linda Cole, arising from the three plaintiffs'
exposure to Scapa's asbestos-containing dryer felts in the course
of their employment at Riegel Paper Mills in western New Jersey.
After a six week trial, the jury awarded Mr. Patton an aggregate
verdict of US$514,220, Mr. Wilson an aggregate verdict of
US$76,102.01 Mr. Grube an aggregate verdict of US$259,045. The
jury rejected the claims of two other plaintiffs, Joseph Becker
and James Gardner.
On appeal, Scapa asserted that some of the damage awards were
excessive and against the weight of the evidence; the jury's
failure to apportion liability to other defendants was against
the weight of the evidence; and cumulative errors resulted in an
unfair trial, warranting reversal and remand for a new trial on
both liability and damages.
The Superior Court affirmed the ruling.
ASBESTOS UPDATE: Fifth Circuit Upholds Dismissal in Exxon Action
----------------------------------------------------------------
The U.S. Court of Appeals, Fifth Circuit, upheld the ruling of
the U.S. District Court for the Middle District of Louisiana,
which dismissed an asbestos-related declaratory judgment action
involving Exxon Mobil Corporation and Turner Industries Group
LLC.
The case is styled Exxon Mobil Corporation, Plaintiff-Appellant
v. Turner Industries Group LLC, Defendant-Appellee.
Circuit Judges E. Grady Jolly, Davis, and DeMoss entered judgment
in Case No. 08-30557 on July 31, 2009.
This appeal was from the dismissal of the action. Turner, the
appellee, was an on-site contractor for Exxon, the appellant.
Turner's current and former employees sued Exxon in Louisiana
state court for asbestos-related injuries.
Turner and Exxon had a defense-and-indemnity agreement, which, in
this federal declaratory action, Exxon sought to clarify. A
magistrate judge recommended dismissing the declaratory action or
granting summary judgment. The district court approved the
recommendation and adopted the magistrate judge's report as its
opinion.
The Appeals Court affirmed the dismissal.
Exxon operates a chemical plant and oil refinery in Baton Rouge,
La. Turner provided construction and maintenance services at the
facility under a blanket cost-plus-work contract.
Eighty-nine of Turner's current or former employees had asserted
asbestos-related personal-injury claims against Exxon (as well as
other companies, sometimes including Turner) in Louisiana state
court. Exxon demanded defense and indemnity under the blanket
contract. Turner declined, and Exxon filed this declaratory
action to clarify its contractual rights.
Turner moved to dismiss the action or for summary judgment under.
Exxon timely appealed.
Reagan W. Simpson, Esq., Amy Couvillon Eikel, Esq., of King &
Spalding in Houston, Charlotte C. McDaniel, Esq., of McGehee,
Grodner & Associates in Baton Rouge, La., represented Exxon Mobil
Corporation.
Gregg L. Spyridon, Esq., Cynthia Cleland Branch, Esq., Georgia
Kobos Thomas, Esq., of Spyridon, Palermo & Dornan in Metairie,
La., represented Turner Industries Group LLC.
ASBESTOS UPDATE: Duncan's Lawsuit v. 26 Firms Filed in Jefferson
----------------------------------------------------------------
Bonnie Duncan, on behalf of her late husband Weldon F. Duncan,
filed an asbestos lawsuit against 26 defendant corporations in
Jefferson County District Court, Tex., on Sept. 4, 2009, The
Southeast Texas Record reports.
Mr. Duncan worked as an insulator and electrician helper, where
he was allegedly exposed to asbestos-containing products.
Defendants include A.W. Chesterton Company, Atlantic Richfield
Company, Anco Mechanical Insulation Llc, Babcock Borsig AG,
Beazer East Inc., CBS Corporation, Chevron Corporation, Cleaver
Brooks Inc., Crane Co., Crown Cork and Seal Company Inc., General
Electric Company, Goodrich Corporation, Gulf Oil Limited
Partnership, Ingersoll-Rand plc, Lockheed Martin Corporation,
Sepco Corp., Texaco Inc., Union Oil Company of California,
Uniroyal Holdings Inc., and Unocal Corporation.
Mrs. Duncan claims the defendants were negligent by failing to
provide Mr. Duncan with a safe workplace, by allowing a dangerous
condition to exist on their premises, by failing to warn Mr.
Duncan that asbestos could cause lung-related diseases and by
failing to provide protective clothing garments.
According to the lawsuit, the companies also negligently failed
to provide adequate insulation, failed to use alternative
products that were safer than asbestos products, allowed the
installation and removal of asbestos, failed to place warning
labels on asbestos containers, failed to warn Mr. Duncan about
the proper handling of asbestos and failed to timely adopt a
safety plan.
According to the suit, Mr. Duncan was unaware of the hazards and
defects in the asbestos-containing products.
Mrs. Duncan seeks unspecified actual and exemplary damages, plus
costs, pre- and post-judgment interest and for other relief the
court deems appropriate.
Bryan O. Blevins Jr., Esq., and Aaryn K. Giblin, Esq., of Provost
and Umphrey Law Firm in Beaumont, Tex., represent Mrs. Duncan.
Case No. D184-851 has been assigned to Judge Milton Shuffield,
136th District Court.
ASBESTOS UPDATE: Robreno's Changes to MDL Docket Still Continue
---------------------------------------------------------------
U.S. District Judge Eduardo Robreno is set to purge the Multi-
District Litigation (MDL) docket of asbestos lawsuits that
started in mass X-ray screenings, The Madison St. Clair Record
reports.
On Sept. 3, 2009, Judge Robreno wrote, "Current litigation
efforts in this court and in the silica litigation have revealed
that many mass screenings lack reliability and accountability."
Judge Robreno laid down other new rules to sort valid claims from
flimsy and forgotten ones. He took charge of asbestos in October
2008 by appointment of the U.S. Judicial Panel on Multidistrict
Litigation.
Judge Robreno ordered plaintiff lawyers to sever mass claims into
individual ones and amend each complaint to state specific
allegations against each defendant.
The rule would have multiplied about 90,000 suits into about
three million, if every plaintiff had followed through on every
claim. Instead of filing three million suits, plaintiff lawyers
started settling claims.
Judge Robreno wrote in May 2009 that a half million claims had
been resolved since January 2009 through settlement, dismissal or
other means. He holds regular hearings to dismiss plaintiffs who
have not severed and amended.
On Oct. 7, 2009, Judge Robreno will dismiss about 1,500
plaintiffs pursuing roughly 50,000 claims, if they do not show up
with reasons to keep going.
Judge Robreno's Sept. 3, 2009 order not only scorns mass
screenings but also seeks solid science behind claims that did
not start at mass screenings.
Each plaintiff must submit a medical report or opinion, Judge
Robreno wrote, and it must have enough weight to withstand a
motion that would dispose of it. Each report must set out the
objective and subjective data on which it is based.
Judge Robreno also wants to know if plaintiffs have pursued other
asbestos claims. Plaintiffs must identify each prior or pending
claim, the parties involved, and the result. He also expects each
plaintiff to identify each defendant that has resolved a claim by
settlement or agreement to dismiss.
If no judge has entered an order of dismissal, the plaintiff must
submit a proposed order. Next a plaintiff must identify each
defendant he or she desires to dismiss, with or without
prejudice.
A plaintiff may not simply abandon a claim. Judge Robreno expects
a reason for dismissing each defendant and a proposed order. A
plaintiff must identify each defendant in bankruptcy and submit
an order transferring the claim to a bankruptcy docket Judge
Robreno created.
After those steps, nothing would remain in the main docket but
valid claims against solvent defendants. For those cases, Judge
Robreno promises to step up the pace of settlement conferences.
Where settlement fails, Judge Robreno wrote, he might refer a
case to mediation or suggest remanding it to the district court
where it started. He ordered lead counsel on both sides to stop
calling Intercon Inc., software designer for the court's
database.
Judge Robreno wrote that communications with Intercon "are now
inappropriate as the contract between the court and Intercon Inc.
does not allow for payment of such services."
The firm of Motley Rice in Mt. Pleasant, S.C., leads the
plaintiff team. The firm of Forman, Perry, Watkins, Krutz and
Tardy of Jackson, Miss., leads the defense team.
ASBESTOS UPDATE: Six Lawsuits Filed in Madison During Aug. 24-28
----------------------------------------------------------------
During the week of Aug. 24, 2009 through Aug. 28, 2009, six new
asbestos-related lawsuits were filed in Madison County Circuit
Court, Ill., The Madison St. Clair Record reports.
These lawsuits are:
-- (Case No. 09-L-893) Lana Bristow of Indiana claims her
deceased father, William Fraticelli, developed mesothelioma
after his work as a laborer and security guard at various
locations throughout Illinois and Indiana from. Amy E.
Garrett, Esq., and Sean M. Keane, Esq., of Simmons, Browder,
Gianaris, Angelides and Barnerd in East Alton, Ill., will
represent Mrs. Bristow.
-- (Case No. 09-L-882) Dale Nelson of Iowa, a parts salesman,
jet engine mechanic and assembly man at various locations
throughout Illinois and Iowa, claims mesothelioma. Randy S.
Cohn, Esq., of Simmons, Browder, Gianaris, Angelides and
Barnerd in East Alton, Ill., will represent Mr. Nelson.
-- (Case No. 09-L-896) Juanita M. Perkins of Illinois claims her
deceased husband, Blannie Perkins, developed mesothelioma
after his work as a grinder and welder for Thermos-King
Steely from 1966 until 1997 and as a maintenance worker for
Freeport School District No. 145 from 1998 until 2004.
Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of
Goldenberg, Heller, Antognoli and Rowland in Edwardsville,
Ill., will represent Ms. Perkins.
-- (Case No. 09-L-880) Robert D. and Teresa L. Pinkley of
Missouri claim Mr. Pinkley developed mesothelioma after his
work as a member of the U.S. Navy, as a member of the Pipe
Covering Local No. 1 as a pipefitter and pipe coverer, as a
machinist, as an owner and laborer, as an assembly line
worker, as a crane operator and material gatherer, and as a
maintenance worker. Elizabeth V. Heller, Esq., and Robert
Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland
in Edwardsville, Ill., represent the Pinkleys.
-- (Case No. 09-L-883) Mariann Thompson of Missouri alleges her
deceased uncle, Waino Jaaskela, developed mesothelioma after
his work as a Tech 4 in the U.S. Army, as a machinist at
General Motors, and as a farmer. Elizabeth V. Heller, Esq.,
and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli
and Rowland in Edwardsville, Ill., will represent Ms.
Thompson.
-- (Case No. 09-L-881 Rafael Valadez of Texas, a welder,
inspector, instructor and laborer at various locations
throughout the United States from 1969 until now, claims
mesothelioma. Randy S. Cohn, Esq., of Simmons, Browder,
Gianaris, Angelides and Barnerd in East Alton, Ill.,
represents Mr. Valadez.
ASBESTOS UPDATE: Hazard in Harborough to Cost Taxpayers GBP2 Mil.
-----------------------------------------------------------------
Asbestos found at Courtyard Workshops in Harborough,
Leicestershire, England, could cost the taxpayers GBP2 million,
the Harborough Mail reports.
Courtyard Workshops is a Leicestershire County Council-owned
complex. Trades people who use the 12 units were ordered to leave
and some were not allowed back for months while asbestos was
removed.
Water containing asbestos particles was discovered in January
2009 while Leeds-based contractors 5M were carrying out roof
repairs.
The case is still being investigated by the Health and Safety
Executive. Asbestos removal experts Aranovas completed the final
work and its manager, Richard Nimmons, said a council source told
him the final bill could reach GBP2 million.
Mr. Nimmons said Aranovus was paid GBP10,000 for its four days'
work in Harborough but said the bulk of the cash is thought to be
compensation for unit-holders who lost trade.
Mr. Nimmons said, "The workshop roofs have asbestos-cement
coating around them. When we arrived to do the work, asbestos had
been disturbed and it had contaminated the area."
Aranovas used an HSE-authorized special cleaning head which
removes grime and sludge from the roof without any asbestos being
released into the air.
A spokesman for County Hall said, "The final cost of the clean-up
and any compensation which may or may not be due is still to be
finalized. We are currently in formal discussion with the
contractors [5M] responsible for the [initial] work."
HSE spokesman Sarah Newell confirmed it was still investigating a
possible breach of health and safety regulations.
ASBESTOS UPDATE: Sentencing in Desnoyers Conspiracy Case Delayed
----------------------------------------------------------------
Mark Desnoyers, a businessman from Plattsburgh, N.Y., who faces
prison time for falsifying air records in an asbestos-removal
scam will have more time before he is sentenced, The Press
Republican reports.
Earlier in 2009, a jury found Mr. Desnoyers, owner of Adirondack
Environmental Associates, guilty of conspiring with John Wood and
Curtis Collins to hide large traces of asbestos in area homes and
businesses.
For about two years, federal prosecutors said the 59-year-old Mr.
Wood of Plattsburgh, N.Y., and the 50-year-old Mr. Collins of
Willsboro, N.Y., conspired with Mr. Desnoyers to falsify air-
monitor records so their clients would be fooled into thinking
the asbestos had been safely removed.
In 2005, when Mr. Wood was released from prison for another
fraud, he started up J.W. Construction Inc. and began a "rip and
run" scam that intentionally left asbestos in a number of
buildings, including the Strand Theatre. The botched work at the
theater caused an eight-month delay to renovation efforts there.
Mr. Wood and Mr. Collins, owner of Adirondack Asbestos, also
illegally buried a large quantity of the toxins on a Willsboro
farm, which cost thousands of dollars to clean up. Both men were
sentenced to federal prison and restitution for their involvement
in the scam.
Mr. Desnoyers was supposed to be sentenced in March 2009. He was
due to appear in court in September 2009 but federal prosecutors
said on Sept. 13, 2008 that it has been delayed again, this time
so the judge can consider motions that may affect Mr. Desnoyers'
sentence.
ASBESTOS UPDATE: NSW Appeal Court Favors Stavar in Payout Claim
---------------------------------------------------------------
The New South Wales Court of Appeal favored 70-year-old Beverly
Stavar, who convinced the Court she should be able to file more
asbestos compensation claims against Caltex Australia Limited and
other companies, The Australian reports.
Mrs. Stavar, who contracted mesothelioma after washing her
husband Frank's asbestos-riddled work clothes for 27 years
threatened to set off another wave of compensation claims against
the occupiers of sites that handled the asbestos.
Mrs. Stavar said she should be able to sue Caltex from the time
Mr. Stavar started working on construction of a refinery in the
Brisbane suburb of Lytton in 1964.
Until the ruling in New South Wales' top court, family members
had only been successful against manufacturers like James Hardie
Industries N.V. and the employers who failed to take adequate
precautions as they told them to work with asbestos.
Mrs. Stavar's barrister, Jim McIntyre SC, said the Court had
shown occupiers had to take reasonable care to protect those
persons from the risks associated with exposure to asbestos
brought home on the worker's clothing. He said these types of
claims had previously been settled.
The Dust and Diseases Tribunal awarded Mrs. Stavar AUD339,000,
but said Caltex, which took over Ampol in 1995, owed her a duty
of care from the time it employed Mr. Stavar as lagger and sheet
metal worker in 1974. It gave costs against Mrs. Stavar for the
period before 1974, when Mr. Stavar was employed by
subcontractors at the site.
However, the Court of Appeal noted the DDT president, John
O'Meally, had gone back to the early 1960s and found science
warnings about the danger for workers and family members.
Judge O'Meally said it was "reasonably foreseeable from at least
the mid-1960s that exposure to small amounts of asbestos was
capable of causing injury to people in the class of which Mrs.
Stavar was a member."
The Court said there were adequate warnings of the risk, at least
by 1971 when the Asbestos Rule, which existed in some form by the
1970s in all states and territories and in same cases from the
mid 60s, applied in Queensland.
Justice James Allsop said he was "not confident from the approach
of the President that a duty did not arise, at least from 1971."
The suggestion Caltex could be liable from the time Ampol
occupied the site was backed by Justice John Basten, who said it
was "necessary to remit the matter to the Tribunal so that the
liability of the appellant for the period from 1965 to 1974."
Caltex had complained that such a finding could expose an
"impermissible indeterminacy of the class of plaintiffs."
However the Court of Appeal said that "given the medical and
occupational health and safety knowledge available at the time
and the nature of the risk" there was no such problem.
ASBESTOS UPDATE: Vasapollo Pleads Not Guilty to Bribery Charges
---------------------------------------------------------------
The 66-year-old Joseph L. Vasapollo Jr. pleaded not guilty to
asbestos-related extortion and bribery charges filed against him,
The Boston Globe reports.
On Sept. 11, 2009, the Federal Bureau of Investigation arrested
Mr. Vasapollo, the superintendent of Brockton, Mass.'s Building
Department, on charges he extorted US$4,000 in kickbacks from a
private contractor while planning a scheme to circumvent
regulated bidding processes. He was released on a US$10,000
unsecured bond.
The 66-year-old Vasapollo, who has been on unpaid medical leave
for a heart attack since April 2009, allegedly favored a Norwood,
Mass.-based contractor for special jobs in the city, according to
a four-count indictment. The indictment did not identify the
contractor, but the Globe learned it is Suburban Middlesex
Insulation Inc.
According to the indictment, Suburban Middlesex had completed
work requested by Mr. Vasapollo as early as 2003, and at one
point the superintendent told the contractor - identified in the
indictment only as the Company's president - that he wanted him
to complete asbestos-removal work at the city's War Memorial
Building.
The city has been trying to renovate the building into a state-
of-the-art performance center, in what has become a US$1 million-
plus project, and Mr. Vasapollo allegedly told Suburban Middlesex
president Darrell W. MacLean to divide jobs into smaller projects
so that they did not meet the US$5,000 threshold for a bidding
process.
Through his role as superintendent, Mr. Vasapollo had the
authority to approve projects under US$5,000.
In 2007, Suburban Middlesex submitted four bids for asbestos
removal, ranging in price from US$4,185 to US$4,950. Mr.
Vasapollo then approved three of the projects and hand-delivered
the city's payments to the contractor at the Foxy Lady strip club
in Brockton, according to the indictment.
In subsequent meetings at a local Dunkin' Donuts parking lot and
at a Pizzeria Uno that were recorded, Mr. Vasapollo then received
cash payments from the contractor in the amounts of US$1,000,
US$1,500, and US$1,500.
Mr. Vasapollo allegedly told the contractor, "I've got to start
thinking of some other things you need to do," and they should
"keep the flow, and make a couple of bucks on the side."
ASBESTOS UPDATE: Caningeraba Probed on Alleged Cleanup Breaches
---------------------------------------------------------------
The Workplace Health and Safety's investigation found that
incorrect procedures were used in the removal of asbestos from
Caningeraba School in Queensland, Australia, ABC News reports.
Queensland's Public Works Minister Robert Schwarten called for
the investigation over concerns about the removal of bag racks
containing asbestos at the school.
Mr. Schwarten says the report indicates the incidents were of a
technical nature, but must never happen again. He said that
"Workplace Health and Safety Division issued an improvement
notice on Q-Build.
"This notice points out that employees removing material
containing asbestos did not fully comply with asbestos management
code or the asbestos removal code.
"They did not obtain an access permit and did not check the Built
Environment Materials Information Register."
ASBESTOS UPDATE: Harrogate Man's Death Linked to Hazard Exposure
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An inquest heard that the death of 81-year-old Francis William
Dennis, of Harrogate, North Yorkshire, England, was linked to
exposure to asbestos, the Harrogate Advertiser reports.
Mr. Dennis was exposed to asbestos while working at Wealstun
prison and HMS Ceres, the inquest heard. He died at Saint
Michael's Hospice on Dec. 8, 2008, of cancer caused by exposure
to asbestos fibers.
Deputy coroner John Sleightholme heard how Mr. Dennis, of
Woodland Crescent, was diagnosed with asbestosis in February
2008. He had visited a solicitor and made a statement about his
working life, as he hoped to claim compensation, but his
condition deteriorated and he died before he was able to sign.
The statement, which Mr. Dennis had prepared, submitted by his
solicitor, was read out in court. He said that he had started
work with the Royal Navy at HMS Ceres in Wetherby, from 1947 to
1949, as a stoker. In 1961, he had gone to work at HMS Prison in
Wealstun, as a boiler man. In both jobs, he said, he was exposed
to asbestos.
Mr. Dennis said, "Nobody seemed to bother at the time. I never
complained to my employers, as I did not know that there was a
health risk. I was simply told to do what I did."
A post-mortem examination found that the cause of death was
mesothelioma due to asbestosis. Mr. Sleightholme sympathized with
the Dennis family for their loss, as he recorded a verdict of
industrial disease.
ASBESTOS UPDATE: Trial in Phillips Lawsuit Scheduled for Nov. 30
----------------------------------------------------------------
The trial in an asbestos case against 53-year-old Michael
Phillips, of Shiocton, Wis., is scheduled to begin on Nov. 30,
2009 before U.S. District Judge William Griesbach, The Post-
Crescent reports.
Mr. Phillips, who is free on his own recognizance pending trial,
is charged with removing a large quantity of pipe during a
heating system conversion at Villa Apartments in New London,
Wis., which he owned through a corporation.
The federal indictment says Mr. Phillips violated federal
Environmental Protection Agency rules for disposal of asbestos.
The indictment says Mr. Phillips did not give the EPA required
notice, did not wet down asbestos when it was removed from pipes,
handled asbestos carelessly, removed it from the building without
packing it in leak-proof wrapping, did not label packages as
hazardous and did not have anyone trained in asbestos removal and
disposal on premises.
Mr. Phillips was indicted on seven counts. Each count carries a
maximum penalty of five years in prison and a US$250,000 fine,
plus a mandatory US$100 special assessment and up to three years
of supervised release.
ASBESTOS UPDATE: Norton Widow Sues Leicester Council for Damages
----------------------------------------------------------------
Janice Norton, the widow of Roger Norton who died from
mesothelioma, is suing his former employer Leicester City
Council, for asbestos-related damages of up to GBP300,000, the
Leicester Mercury reports.
Mr. Norton was 67 years old when he died in October 2006. He was
alleged to have been exposed to asbestos during his 11 years,
from 1969 to 1980, working as a painter and decorator for
Leicester City Council.
According to a writ issued in London's High Court, the council is
accused of "negligence" in that it failed to provide protective
equipment, and health and safety advice, exposing Mr. Norton to
"foreseeable risk of injury."
Mr. Norton's work involved "treating asbestos pipes, guttering
soffits and other asbestos-coated, or asbestos, parts" at the
council houses he was employed to redecorate.
Mr. Norton was first diagnosed with mesothelioma in June 2006
after he complained of feeling unwell and breathless. X-rays
revealed a mass on his lung.
A subsequent biopsy showed the progressive cancer had taken hold
and doctors said Mr. Norton was unlikely to survive surgery. He
was given four months to live.
A spokesperson for Leicester City Council said, "This case is
proceeding before the courts and therefore we can't comment at
the present time."
ASBESTOS UPDATE: Portsmouth Dock Worker's Death Linked to Hazard
----------------------------------------------------------------
An inquest heard that the death of Raymond Parish, a 72-year-old
former dockyard worker from Portsmouth, England, was linked to
exposure to asbestos, The News reports.
Like hundreds of others, Mr. Parish's mesothelioma was brought on
while he worked at Portsmouth dockyard.
Mr. Parish's widow, Christine, said, "He started to get ill early
in September 2008, and he was on oxygen three to four hours a
day, but when he went into Queen Alexandra Hospital on December 3
he was breathless, but it was just a routine visit, to drain some
fluid from his lungs. He never came home. Just two days later he
was dead."
Mr. Parish had taken an apprenticeship in engineering at
Cumberland Garage, Eastney, when he left national service in the
1950s. He was exposed to asbestos while working for 25 years as a
boat engineer at Portsmouth dockyard from 1962 to 1987. He then
got an office job in the dockyard until his retirement in 1996.
Mrs. Parish is now looking into the possibility of compensation
for her husband's death. She said, "In the 1990s, Ray was tested
for pleural plaques, which he had, and we received a small one-
off payment as a result.
"But I am speaking to solicitors, as I feel it's unfair Ray died
as a result of doing his job, and I have lost my carer, and my
husband of 46 years."
Coroner David Horsley passed a verdict of death by industrial
disease.
ASBESTOS UPDATE: Five West Belfast Residences Slated for Cleanup
----------------------------------------------------------------
Work to remove asbestos from five Housing Executive Homes,
located at the Grosvenor Road in West Belfast, Northern Island,
will be carried out in the week beginning Sept. 28, 2009,
Andersontown News reports.
A Housing Executive spokeswoman said, "Asbestos containing
material has been found in five of our homes in the Grosvenor
Road area. Unless it is disturbed asbestos-containing material
does not usually pose a risk to health."
However, the spokeswoman said that as a responsible landlord the
Housing Executive believes that this material should be removed
from the affected properties.
The spokeswoman said that District Office staff have met with
local public representatives about the matter and affected
tenants were notified on Sept. 4, 2009.
The spokeswoman added that while the Housing Executive does not
have any liability in respect of owner-occupied properties,
homeowners in the area have also been notified and a
discretionary renovation grant has been made available.
ASBESTOS UPDATE: Bodin's Action v. 17 Companies Filed on Sept. 2
----------------------------------------------------------------
Robert Bodin, on Sept. 2, 2009, filed an asbestos lawsuit against
17 defendant corporations in Jefferson County District Court,
Tex., The Southeast Texas Record reports.
The case is styled Robert Bodin vs. A.O. Smith Corp. et al.
Mr. Bodin, a bricklayer, alleges the defendants conspired to
expose him to asbestos, despite actual knowledge of the dangers
of asbestos. He alleges the defendants conspired to inflict him
with an asbestos illness. He is suing for exemplary damages.
Bryan Blevins, Esq., represents Mr. Bodin. Case No. A184-821 is
assigned to Judge Bob Wortham.
ASBESTOS UPDATE: More Than $76T OK'd for Negus Building Cleanup
---------------------------------------------------------------
Supervisors of Mohave County, Ariz., on Sept. 8, 2009, approved
more than US$76,000 for additional asbestos cleanup at the
county's future probation department, the Negus Building, Tri-
State Online reports.
Other additions include new lights, making the sidewalk compliant
to the American Disability Act and a chain link fence. The
building once housed the county administration building in
Kingman, Ariz. The changes will also increase the completion date
to February 2010.
The additional money was requested after contractors found
asbestos floor tiles beneath the original carpet and other
flooring. The board also approved future spending from the
contingency fund for unexpected conditions to avoid delays in the
project.
About US$73,000 of the US$150,000 contingency fund remains,
Public Works Director Steve Latoski said.
District 3 Supervisor Buster Johnson asked why the county did not
know what the total cost would be to begin with and wondered why
a building project could not come in under the projected cost.
Summit Builders of Phoenix was awarded a US$1.58 million contract
to remodel the inside and outside of the 20,000-square-foot Negus
Building. The change to the contract does not add to the total
cost.
About half of the 113 probation department employees and juvenile
detention officers are currently housed in a 6,000-square-foot
building, which the county leases in downtown Kingman.
ASBESTOS UPDATE: Court Issues Split Ruling in Cavallaro Lawsuit
---------------------------------------------------------------
The U.S. Court of Appeals for Veterans Claims issued split
rulings in a case involving asbestos filed by Joseph J.
Cavallaro.
The case is styled Joseph J. Cavallaro, Appellant v. Eric K.
Shinseki, Secretary Of Veterans Affairs, Appellee.
Chief Judge Greene entered judgment in Case No. 07-3014 on July
31, 2009.
Mr. Cavallaro appealed, pro se, a June 19, 2007, decision of the
Board of Veterans' Appeals that denied VA service connection for:
-- A head injury, head pain, and memory loss;
-- A back disability (to include thoracic and lumbar spine);
-- A right shoulder disorder with arthritis;
-- A left shoulder disorder with arthritis;
-- A heart disorder, to include pericarditis, anemia, and
hypertension;
-- Lung disease, to include pneumonia;
-- Diabetes mellitus;
-- Asbestosis and chronic obstructive pulmonary disease (COPD)
or any other respiratory disease due to asbestos exposure;
-- A cervical spine disorder;
-- Tinnitus;
-- Loss of teeth; and
-- Dental trauma.
The Board also denied service connection for right and left foot
injuries, to include hammer toes and pes planus; an eye disorder,
to include eye cysts; and a nervous disorder, to include post-
traumatic stress disorder, anxiety, and panic disorder, as well
as an increased disability rating for Mr. Cavallaro's service-
connected residuals of a cold injury to the right and left feet.
However, Mr. Cavallaro does not dispute the Board's denial of
these claims.
The June 19, 2007, Board decision was vacated to the extent that
it denied service connection for a head injury, back disability,
right-and left-shoulder disabilities, a cervical spine
disability, and tinnitus.
Those matters were remanded to the Board for further development
and readjudication consistent with this decision.
The remainder of the Board decision was affirmed.
ASBESTOS UPDATE: Appeal Court Rules on Enos Compensation Action
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The U.S. Court of Appeals for Veterans Claims issued rulings in
the case styled Shirley A. Enos, Appellant v. Eric K. Shinseki,
Secretary of Veterans Affairs, Appellee.
Chief Judge Greene entered judgment in Case No. 07-1893 on July
31, 2009.
Shirley A. Enos, the widow of veteran Richard J. Enos, appealed a
March 26, 2007 decision of the Board of Veterans' Appeals (Board)
that found that her husband's death was not service connected.
She sought reversal of that finding.
Mrs. Enos also sought remand of her claim for accrued benefits so
that the U.S. Department of Veterans Affairs (VA) can issue a
Statement of the Case (SOC) on that matter. She also urged the
Court to remand her claim for dependency and indemnity
compensation (DIC) benefits on the basis that the claim was
intertwined with the other matters.
Mr. Enos served in the U.S. Navy from February 1943 to April
1946. In June 2001, he claimed VA service connection for
interstitial lung disease as a result of exposure to asbestos and
cardiovascular disease secondary to his lung condition. In March
2002, a VA regional office (RO) denied the claims.
A VA medical record dated in September 2002 reported a diagnosis
of "[c]hronic obstructive pulmonary disorder (COPD)" and recorded
that a computed tomography (CT) scan "showed interstitial
fibrosis." The examiner noted Mr. Enos' complaints of asbestos
exposure during service and stated that "asbestos can cause an
interstitial fibrosis type disease."
Mr. Enos died on Jan. 6, 2003. In February 2003, Mrs. Enos filed
an application for DIC, death pension, and accrued benefits. She
asserted her belief that her husband was exposed to asbestos in
service and that that exposure caused the conditions that led to
his death. In July 2003, the RO denied the claims.
Mrs. Enos filed a Notice of Disagreement (NOD), and in April
2004, the RO issued an SOC regarding its denial of service
connection for the cause of Mr. Enos' death. She filed a
Substantive Appeal, again asserting that her husband's in-service
asbestos exposure caused his death and that he should have been
service connected for the conditions caused by that exposure.
In July 2006, the Board referred the accrued benefits matter to
the RO for "appropriate action" and remanded Mrs. Enos' claim for
service connection for the cause of her husband's death to the RO
for further development.
In December 2006, the RO issued a Supplemental SOC (SSOC)
continuing the denial of service connection for the cause of Mr.
Enos' death. In its March 2007 decision, the Board denied service
connection for the cause of Mr. Enos' death after finding that
Mr. Enos' atherosclerotic cardiovascular disease was not service
connected, nor did the evidence demonstrate that it was related
to service.
The Board also found that Mr. Enos' pulmonary disorder was not
related to service. As part of its decision, the Board conceded
that Mr. Enos was exposed to asbestos during service. This appeal
followed.
The March 26, 2007 Board decision was vacated and Mrs. Enos'
claims for service connection for the cause of her husband's
death and DIC and accrued benefits were remanded to the Board for
further development and readjudication consistent with this
decision.
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Copyright 2009. All rights reserved. ISSN 1525-2272.
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